DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

RECOVERY OF POSSESSION OF MOVABLE AND IMMOVABLE PROPERTY

SUBJECT

CONTRACTS-II

NAME OF THE FACULTY

B.V.S. SUNEETHA

Name of the Candidate

Roll No.
Semester

K. REDDI DILEEP

2016048

SEMESTER-03

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CONTENTS:

1. INTRODUCTION
2. SPECIFIC RELIEF
3. RECOVERY OF POSSESION OF IMMOVABLE PROPERTY
4. SUIT BY THE PERSON DISPOSSESSED OF IMMOVABLE PROPERTY
5. RECOVERY OF POSSESSION OF MOVABLE PROPERTY
6. LIABILITY TO DELIVER POSSESSION TO PERSON ENTITLED
7. CONCLUSION

CASES REFFERED;

1. M/s Chandra co. vs State of Rajasthan

2. Mahabir Prasad jain vs ganga singh
3. T. T. Devasthanams v K M Krishnaiah
4. State of GUjarath vs Bihari lal
5. Anathula Sudhakar vsP Buchy Reddy
6. Sobha vs Ram Phal
7. Bahadur Chand vs Naina Mal
INTRODUCTION:

Property has a very wider meaning in its real sense. It not only includes money and
other tangible things of value, but also includes any intangible right considered as a source or
element of income or wealth. The right and interest which a man has in lands and chattels to
the exclusion of others. It is the right to enjoy and to dispose of certain things in the most
absolute manner as he pleases, provided he makes no use of them prohibited by law. Basically,
Property is divided into real property, and personal property. Property is also divided, into
absolute and qualified, when it consists of goods and chattels. Absolute property is that which
is our own, without any qualification whatever; as when a man is the owner of a watch, a book,
or other inanimate thing: or of a horse, a sheep, or other animal, which never had its natural
liberty

Qualified property consists in the right which men have over wild animals which they
have reduced to their own possession, and which are kept subject to their power; as a deer, a
buffalo, and the like, which are his own while he has possession of them, but as soon as his
possession is lost, his property is gone, unless the animals, go animo revertendi.

Property is again divided into corporeal and incorporeal. The former comprehends
such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like;
the latter consists in legal rights, as chooses in action, easements, and the like.

MEANING AND DEFINITION OF PROPERTY:

MEANING:

In general sense, property is any physical or virtual entity that is owned by an individual or
jointly by a group of individuals. An owner of the property has the right. Human life is not
possible without property. It has economic, socio-political, sometimes religious and legal
implications. It is the legal domain, which institutes the idea of ownership. The basic postulate
of the idea is the exclusive control of an individual over some thing. Here the most important
aspect of the concept of ownership and property is the word thing, on which a person has
control for use. To consume, sell, rent, mortgage, transfer and exchange his property. Property
is any physical or intangible entity that is owned by a person or jointly by a group of people.
Depending on the nature of the property, an owner of property has the right to consume, sell,
rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from
doing these things.

DEFINITION:

There are different definitions are given in different act as per there uses and needs. But in the
most important act which exclusively talks about the property and rights related to property
transfer of property act 1882 has no definite definition of the term property. But it is defined in
some other act as per their use and need. Those definitions are as follows:
 1. Property means property of any kind, whether movable or immovable, tangible or
intangible, and includes any right or interest in such property.1
2. Property means the general property in goods, and not merely a special property. 2

TYPES OF PROPERTY:

MOVABLE PROPERTY:

The definition of movable property is given differently in many acts. Some of the definitions
are as follows:

Section 3 (36) of the General Clauses Act defines movable property as:

Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in
trees, and property of every other description, except immovable property."

IMMOVABLE PROPERTY:

he Term "Immovable Property" occurs in various Central Acts. However, none of those Acts
conclusively define this term. The most important act which deals with immovable property is
the Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive
terminology.

1. According to Section 33 of that Act, "Immovable Property" does not include standing
timber, growing crops or grass. Thus, the term is defined in the Act by excluding certain
things. "Buildings" constitute immovable property and machinery, if embedded in the
building for the beneficial use thereof, must be deemed to be a part of the building and
the land on which the building is situated.
2. As per Section 3(26) of the 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". This definition of immovable
property is also not exhaustive;
3. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:
"Immovable Property includes land, building, hereditary allowances, rights to ways,
lights, ferries, fisheries or any other benefit to arise out of land, and things attached to
the earth or permanently fastened to anything which is attached to the earth but not
standing timber, growing crops nor grass".

1
Section 2[c] of the benami transaction act, 1988
2
Section 2 [11] of sale of goods act,1930
3
Transfer of Property act
SPECIFIC RELIEF ACT:

The Specific Relief Act, 1963 was came into force on 1st March 1964. The Parliament enacted
the Act by repealing the Specific Relief Act, 1877. The Act is based on the principle of equity
and is used for granting specific relief for enforcing civil rights. It has no application in
enforcing penal laws. The Specific Relief Act, 1877 contained the principles of equity, justice
and good conscience. The need for a new statute suited for the new requirements lead to the
enactment of the Act of 1963. The Bill of the new Act was drafted on the basis of the 9th Report
of the Law Commission of India. From the preamble of the Act, it is clear that the Act was not
an exhaustive one. It only deals with certain kinds of specific reliefs and there are other reliefs
about which the Act was silent and are used by the courts.

The Act is a procedural law and provides a network of reliefs. The plaintiff, under the Act gets
is relief in specific. The reliefs contained in the Act include,

1. Recovery of Possession of Property,

2. Specific Performance of Contracts,

3. Rectification of Instruments,

4. Rescission of Contracts,

5. Cancellation of Instruments,

6. Declarative Relief, and

7. Preventive Reliefs (Injunctions).

Sections 5 to 7 of the Act contained provisions regarding recovery of possession of property.

It include both immovable property (Section 5) and movable property (Section 7). Any person
having right of possession of the property can recover it by the application of provisions of
Code of Civil Procedure. Section 6 prevents a person from possessing immovable property of
another without his consent otherwise than by due process of law, without considering the
question of title. A suit for recovery of such property under S.6 cannot be filed against the
Government. Another relief provided by the Act is preventive in nature. Preventive reliefs are
granted by the courts by way of issuing injunctions. Injunctions under Part III of the Act
(Chapter VII to end) prevents a person to do or not to do something. Granting of such reliefs
are within the discretion of the court. By virtue of Section 36 of the Act, there are temporary
or interlocutory injunctions and perpetual injunctions. Perpetual injunctions can be granted
only after hearing both sides and considering the merits of the case. Under Section 39, court
can grant mandatory injunctions to compel a person to do an act. It is issued to prevent the
breach of an obligation. A plaintiff can claim damages in the suit for both mandatory and
perpetual injunctions.

The Specific Relief Act, 1963 was amended twice by the Act No. 52 of 1964 and Act No. 56
of 1974. The later repealed two of the provisions of the Act viz, Sections 43 and 44.
RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY:

SECTION 5 of the Act4 deals with recovery of possession of immovable property. It says that
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).

I. When a cloud is raised over a persons title and he does not have a possession, a
Suit for declaration and possession, with or without a consequential injunction is the remedy;

II. Where a persons title is not in dispute but he is out of possession, he has to sue
for possession and consequential injunction.

In Anathula Sudhakar versus P Buchy Reddy5, it was said that, where there is merely an
interference with a persons lawful possession or where there is a threat of dispossession, it is
sufficient to sue for an injunction simpliciter. In a Suit under this Section, the title of both the
parties can be gone into and considered by the court; but the possession claimed by the party
should be juridical, which is recognized by law as such. For example, a Servant or an agent
may have possession of property against strangers, but not against his mater or principal, for
he holds on behalf of the latter.

4
Specific relief act, 1963
5
AIR 2008 SC 2033 (2039).