29/30 Oct | Important question from Specific Relief Act

QUESTION | A person entitled to the possession of specific immovable property may recover it in the manner provided by the Civil Procedure Code, 1908. Explain with the help of Specific Relief Act.

Importance of this question : Important question from Specific Relief Act

QUESTION POSTED ON | 29.10.2021

MODEL ANSWER WILL BE POSTED ON | 30.10.2021

Answers can be written till 30.10.2021

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ANSWER | Section 5 of SPECIFIC RELIEF ACT provides the following : A person entitled to the possession of specific immovable property may recover it in the manner provided by the Civil Procedure Code, 1908.

What section 5 implies ? Section 5 provides a normal remedy for dispossessed person in case of immovable property. This remedy is available according to the procedure provided under CPC, 1908, i.e. by filing a suit.

Need for section 5 | When immovable property is dispossessed, there is always a chance of resistance and violence because people try to take law in to their hands. Therefore, solution to process of dispossession has to be found.

Essence of section 5 | This section deals with action for recovery of possession of specific immovable property based on title.

Thumb rule of section 5 | Whoever proves a ‘better title’ is a person “entitled to possession”. The title may be on the basis of ownership or possession.

Illustration | Suppose A enters into peaceful possession of land claiming it as his own although he might have no title to it, still he can sue another who has forcibly ousted him from possession and who has no better title to it, because A, although he has no legal title, has at least a possessory title.

Immovable property | The term ‘immovable property’ is not defined under this Act, so, its definition can be derived from Section 3(26) of the General Clauses Act, 1897.

Section 3(26) of General Clauses Act, 1897- immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

Limitation | Section 5 of SRA must be read with Articles 64, 65 of the Limitation Act, 1963. According to Burden of proof is on the defendant to prove that the suit is barred by Article 65 of the Limitation Act. Period of limitation to file suit under Section 5 is 12 years as provided under Article 64 and 65 of Limitation law.