RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY IN COURT OF LAW AND THE LAW- DISPUTED PROPERTY

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RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY IN COURT OF LAW AND THE LAW –DISPUTED PROPERTY 

Proceedings under S. 147, Criminal. P. C., in respect of pathway by defendants —Plaintiffs putting up fence pending proceedings — Order in favour of defendants — Removal of fence—Suit under S 6 by plaintiffs Held, suit was not maintainable and that act of defendants in passing over lands did not amount to dispossession within meaning of Section 6

Interference with the right of a lessee to collect cow dung and grass from specific plots though by itself may not amount to dispossession from immovable property within the meaning of Section 6 if the lessee is actually thrown out of the lands concerned by force then it would certainly amount to dispossession from the disputed property.

Section 6 requires legal possession and the owner who re-enters without delay has in law never lost possession. Unlawfully trespassing on property is continuing wrong and cause of action arises each time owner is resisted.

Question, whether there is cause of action or not, does not depend on admission of defendant — Plaint disclosing cause of action —No finding that there is no cause of action —Plaintiff entitled to decree on admission of defence.

Where the tenant vacates the premises before the expiry of the tenancy handing over the key to a third person and the latter enters into possession, the landlord cannot be said to have been forcibly dispossessed. The third person’s occupation would be permissive and not forcible.

The proper persons to institute a suit under Section 6, are the persons who were actually dispossessed from the property. Even if they were in possession on behalf of the plaintiff, still the plaintiff could only institute the suit if the persons actually dispossessed are not willing to sue.

Nature of possession to be established. —

Possession required under section must be at least excusable possession — Purchaser of occupancy fields remaining in undisturbed possession for four years and then dispossessed—Possession is excusable one and suit under Section 6 can lie.

In a suit under Section 6, an inquiry into the nature of possession is often necessary, and, when necessary, the best way to ascertain the nature of possession is to inquire into the question of title. It is true that the trial Court is not concerned with the determination of title, but it is certainly competent to go into the question of title in order to ascertain the nature of a party’s possession. The significance of a decree for possession obtained in a suit filed under Section 6 is that it cannot be said and is not said that the decree is no evidence of title. It proves possession and possession is evidence of title.

Possession that is required is not actual physical possession. Section requires legal possession.

For the purposes of Section 6 and S.6 the possession claimed by a party should be juridical possession. The possession of a servant or, for the matter of that, of a deputee or appointee for the benefit and on behalf of the master or the person deputing or appointing, is really the possession of the latter.

Possession of plaintiff must, under Section 6, be juridical possession; where person has in his own right, and not merely as representative of another, such control over immovable property as to be able to exclude another from it, and has intention of exercising such power of exclusion, he has possession within meaning of Section 6. Servant or manager who exercises control on behalf of his master is not in juridical possession.

Case Law- Plaintiff appointed a pujari of a Thakur Bari, defrayed the expenses of worship, re-paired the building and had the key of the door of the Thakurghar with him — Held, that the possession of the plaintiff was such physical possession as to attract the operation of Section 6, Specific Relief Act, notwithstanding that the Thakur Bari, as a residence of deity, was open to the public.

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