RECOVERY OF POSSESSION OF PROPERTY

Section 5

5. Recovery of specific immovable property.— “A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908)”.

  • The term possession implies:
  1. Corpus – some actual power over the object possessed and apparent control over it, and
  2. Animus – some amount of will to avail oneself of that power thus, where person has in his own right and not merely a representative of another such control over property as to be able to exclude others from it, and has the intention of exercising such power of exclusion, he has possession of that property.
  • Possession is prima facie proof of ownership. It is a good title against all those who cannot show a better title.
  • The property must be specific immovable property that is clearly separable from the rest. Every immovable property is generally definite and separate from the rest.

 

  • Three types of action can be brought in law for the recovery of specific immovable property
  1. A suit based on title by ownership
  2. A suit based on possessory title
  3. A suit based merely on the previous possession of the plaintiff, where he has been dispossessed without his consent, otherwise then in due course of law, the issue of title being irrelevant to the proceeding.
  • Point 1 and 2 pertains to Section 5 whereas point no. 6 the three pertains to Section 6.
  • Section 5 uses the term entitled. A plaintiff can be said to be entitled to possession of immovable property only then he can file a suit for recovery of possession on the basis of title.

Title on the basis of ownership

  • The owner of immovable property always has a bundle of rights including the right of possession. Therefore, if someone forcibly ousts him from that immovable property he can sue under this section.

Example: A, owner of a house is ousted by B (neighbour). A can file a suit under this Section as he is entitled to possession on the basis of ownership.

  • In Parataprai N. Kothari v John Baganza the Apex Court of India held that even the owner of property cannot use force to recover the possession of the immovable property but can get it back by following due procedure of law.

Title on the basis of possession:

  • Where a person has peaceful possession of land claiming it to be his own then even if he has no title he can sue another person who ousted him from possession who has no better title to it.

Example: A, washer man, peacefully residing in a plot of land is ousted by B (neighbour) who is not owner of that plot. A can file a suit under this section as he has possessory title.

  • Significantly, main objective of section 5 is that nobody shall take law in his own hand s and should not use force to recovery possession whether he is owner or have possessory title. Therefore, where he is forcibly ousted by somebody then he must file a suit.
  • Under section 5 the plaintiff can file a suit within 12 years from the date of possession.

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