Procedure to Recover Immovable Property under Order XXI

Possession is prima facie evidence of ownership. Section 5 and Section 6 of The Specific Relief Act deal with immovable property. Section 7 and Section 8 deals with the movable property. This article will review various Acts – The Specific Relief Act, 1863 The Limitation Act, The Indian Evidence Act,1860, and the Code of Civil Procedure, 1908. 

Introduction

Section 10(1) of the Indian Evidence Act,1862 talks about the burden of proof as to ownership. If we own something, it is pre-assumed that we originally own that. But if the other claims that they own that property, then the burden of proof lies on the owner to prove that the other person does not own that property. In other words, the person claiming the property has no burden of proof to show that they own that property. Further, if any person owns any property for a long-defined period and no one approaches to claim that property, then that property will be named as a title and the possession will be given to that person only under Section 5 and Section 6 of the Specific Relief Act,1963. 

The Procedure

The simplest process to obtain an immovable property is to approach a Civil Court and file a suit based on the title within 12 years as defined. The limitation period from the date of dispossession as given in Article 65 to Schedule 1(2) of The Limitation Act and if the court gives the decree in the plaintiff’s favour, he/ she can recover the possession by executing the decree under Order XXI Rules: 35(3) and 36 Of Code of Civil Procedure. Section 5 of the Specific Relief Act, 1963, simply asks to approach the court, file a suit and get the decree executed. 

Section 5(4) of the Specific Relief Act, 1963 talk about the recovery of the immovable property. There are three points to be discussed in this section:

1.) Specific immovable property- It is not defined either in the Specific Relief Act or The Contracts Act. The concept of specific immovable property is defined in Section 3(26)(5) of the General Clauses Act,1897. According to the definition of land, benefits to arise out of the land, things attached to the earth and permanently fastened to anything attached to the earth are immovable property. 

2.) Entitled to the possession

3.) Manner of possession required by the Civil court procedure.

Section 6 of the Specific Relief Act

Section 6 of The Specific Relief Act talks about the rights of the people who have been removed from the property without any legal proceedings. There are some special remedies given to them. The section helps any tenant or any person who has been removed from the property illegally to get back their property. 

Essentials of Section 6 of The Specific Relief Act,1963-

  • Person suing was in possession – The person who claims the property should initially own that property in the first place.
  • The person suing must have been dispossessed without his consent – The person who claims the property should have been removed from it without consent or agreement.
  • Dispossession must be of immovable property – The property from which the plaintiff is being removed must be immovable.
  • Such dispossession is otherwise than in due course of law – The plaintiff is being removed from the property illegally, without any legal proceedings and use of force like coercion, threatening, maybe the electricity has been cut or any other means of illegal way to get the property vacant.
  • And the suit must be brought within 6 months from the date of dispossession – The suit filed in the civil court by the plaintiff must be within 6 months of dispossession from the property.

Limitations

  • The suit cannot be filed after 6 months under Section 6 of the Specific Relief Act,1963. After 6 months, the suit can be filed in the Civil Court under Section 5 of the Specific Relief Act and this time the plaintiff, unlike before has to prove the better title of the property.
  • No suit can be filed against the government under this Section.
  • if any decree is passed, you cannot appeal or review but yes, you can revise it.
  • Section 5 of The Specific Relief Act, 1963 helps you to get a better title of the property, and Section 6 helps you to get the property back to the owner or else as subjected to. It may also happen that the plaintiff is the tenant and he has been removed because the lease agreement has expired or the plaintiff can be the real owner of the property who has been removed by their tenants.

Order 21

Order 21 of the Code of Civil Procedure, 1908, is the longest in the CPC. It has 106 rules. Order 21 talks about execution.

Cases-

1.) Dinesh Kumar Sharma v Shankar Lal Sharma – This petition was filed by the plaintiff Shankar Lal Sharma under Order 21, Rule 97(6) of Code of Civil Procedure seeking to get his rights/title of the property and stop the execution of the decree. 

2.) In Mustapha Sahib v Santha Pillai(7), it was observed that Sec. 6 could not possibly be held to take away any remedy available concerning the well-recognized doctrine: ” Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the owner’s title “(8).

3.) Jadunath Singh v Bishunath Singh(9) – A landlord who was in possession through a tenant, on the dispossession of his tenant becomes dispossessed himself, and is, therefore entitled to seek his remedy under Sec. 6. 

4.) M.C. Chockalingam v V. Manickavasagam(10) – All that Sec. 6 provides is that a person, even if he is a landlord (true owner) cannot take the law into his own hands and forcibly evict a tenant after the expiry of the lease. Law in India does not recognize in the landlord a right of extra-judicial re-entry. Sec. 6 frowns upon forcible dispossession without recourse to the law but does not at the same time declare that the possession of the evicted person is lawful.(11)

5.) Indra Kumar Pvt Ltd. v State of Orissa(12) – When possession is taken by the State Government, the grievance cannot be made by the petitioner until it has established its better title to the property and therefore becomes entitled to possession.

Conclusion

The article gives a brief idea about how to recover the immovable property or possession under Order 21 of the Code of Civil Procedure, 1908.

Frequently Asked Questions

1.) How many orders are there in CPC?

The Code is divided into two parts: the first part contains 158 sections and the second part contains the First Schedule, which has 51 Orders and Rules.(13)

2.) Under which rule and order of the Civil Procedure Code does the recovery of immovable property lie?

It lies under Order 21, Rule 35, 36.

3.) What is the limitation period under which one can claim his/her possession under the Limitation Act?

The limitation period is for 12 years. After that, the plaintiff can claim under Section 5 of the Specific Relief Act,1963.

4.) Can we file a case against Govt. under Section 6 of the Specific Relief Act?

No suit can be filed against the government under Section 6 of the Specific Relief Act.

5.) Who owes the burden of proof?

The burden of proof lies on the person who claims the property and not that who says that this property is not owned by the claimant.

References

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