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Report No. 147

Chapter 3

Suit for Recovery of Possession

3.1. Section 9 of the 1877 Act provided a summary relief to a person dispossessed, without his consent, of immovable properly, otherwise than in due course of law and enabled him to recover possession immediately, without the need to go into questions of title and other controversies provided he files a suit within six months of his dispossession. Though the Ninth Report1 had recommended the omission of this provision, the provision has been retained in the 1963 Act as section 6.

1. Para. 16 of the Ninth Report.

3.2. On the interpretation of section 6, there has been a judicial divergence of opinion on the question whether an owner can bring a suit for possession under the section when not he but a person deriving title from him is in possession of the property. One view is that when the owner confers an interest on a derivative holder which entitles the latter to actual use and possession of the property, it is only the latter and not the former that can maintain an action under section 6.1

The other view is that dispossession of the derivative holder by a trespasser is, in reality, the dispossession of the owner himself and entitles even the former to maintain an action under this section.2 It has been suggested that the latter view is the only possible view and that the other line of cases is distinguishable. It is unnecessary to go into the merits of the controversy but it seems desirable to clarify the position legislatively.

We are of the opinion that, if section 6 is to stand, it should be available even to a person in the position of an owner who may be in possession through a derivative holder. A contrary view would make it possible for a person in derivative possession to collude with a third party and deprive the real owner of the possession of the property. We would, therefore, suggest that section 6(1) be amended to read as follows:

"6(1). If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit."

1. Veeraswami v. Venkatachala, AIR 1926 Mad 18; Ramchandra v. Sambashiv, AIR 1928 Nag 313.

2. Raghuvar Dayal v. Har Govind, AIR 1953 Raj 287; Gobind Ram v. Mewa, AIR 1953 PEPSU 188; Sailesh Kumar v. Rama Devi, AIR 1952 AP 339; Jadhunath v. Bishunath, ILR 1951 (2) All 16; Ratanlal v. Amar Singh, AIR 1929 Born 467; Bindabasini v. Jahnvi, (1901) ILR 24 Cal 260; Virjivanns v. Mohamed, All 1881 ILR 5 Born 208.

Specific Relief Act, 1963 Back

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