Recovering possession of property

In one minute

If someone throws you out of your land, the law gives you two doors. One asks you to prove that you own it. The other asks only whether you were in possession and were removed without due process. Sections 5 and 6 give these two doors for land. Sections 7 and 8 do the same for goods.

No one may evict by self-help, not even the true owner. In exams, the six-month possessory suit under section 6 is asked most often. In real life, it protects tenants, shopkeepers and farmers from being put on the street overnight.

Exam focus

Frequency: Rarely asked
Usually asked as: Short answer (4 to 6 marks)

Legal provision

Section 5: a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908.
Section 6(1): a person dispossessed of immovable property without his consent and otherwise than in due course of law may sue to recover possession "notwithstanding any other title that may be set up". The suit may also be brought by a person through whom he was in possession, or by a person claiming through him.
Section 6(2) to (4): no suit after six months from dispossession, and none against the Government. No appeal or review lies. A person may still sue on title.
Section 7: a person entitled to the possession of specific movable property may recover it under the Code of Civil Procedure.
Section 8: a person who holds specific movable property but is not its owner may be compelled to deliver it to the person entitled to immediate possession, in four cases.

Meaning and definition

Settled possession means possession that the owner knew about and that has continued for some time. The law protects it even against the owner. This part of the Act asks one question: who is entitled to possession, and how may he get it back?

The answer for land is a choice between two suits. A title suit under section 5 proves ownership and decides it for good. A possessory suit under section 6 is quick, but proves only earlier possession and unlawful removal. The diagram shows how to choose.

Which suit should the dispossessed person file?How to read this: go down the boxes in order. A "No" answer sends you to the result beside the box.

1. Is the property immovable (land or a building)? sections 5 and 6
No: use sections 7 and 8 (movable property).
2. Was the plaintiff in possession and removed without his consent and without due process of law? section 6(1)
No: file a title suit under section 5.
3. Is the suit within six months of the dispossession, and is the defendant not the Government? section 6(2)
No: file a title suit under section 5, or a suit on prior possession within 12 years.
All answers "Yes": a section 6 suit lies. The defendant cannot defend by setting up his title. No appeal or review lies from the decree. The loser may still file a title suit (section 6(4)).

Detailed explanation

1. Section 5: recovery on title

Section 5 does not create a new procedure. It points to the Code of Civil Procedure. The plaintiff must prove a better title than the defendant. He succeeds on the strength of his own title, not on the weakness of the defendant's. A suit on title is generally brought within 12 years under Article 65 of the Limitation Act, 1963. The period runs from the time the defendant's possession becomes adverse to the plaintiff.

Example. Bhaskar owns a house in Secunderabad. A stranger has lived in it for three years and refuses to leave. Bhaskar files a suit for possession and proves his sale deed. The court decides title and orders delivery of possession under section 5.

2. Section 6: the summary remedy for dispossession

The plaintiff must prove three things. He was in possession. He lost possession without his consent. He lost it otherwise than in due course of law, which means without a court order or a lawful procedure. He need not prove title. The defendant cannot defend by saying "I am the real owner".

Example. Anil has run a kirana shop in a rented room for six years. His lease ended three months ago and he has not left. The owner breaks the shutter on a Sunday and puts his stock on the footpath. Anil sues within six months under section 6. The owner cannot prove ownership as his defence.

3. The limits of section 6

Six months (section 6(2)(a)). The suit must be filed within six months from the date of dispossession.
Not against the Government (section 6(2)(b)). A section 6 suit cannot be brought against the Government.
No appeal or review (section 6(3)). A High Court may interfere in revision only in an exceptional case. The Supreme Court said so in Sanjay Kumar Pandey v. Gulbahar Sheikh (2004).
Title suit saved (section 6(4)). A person who loses a section 6 suit loses only the summary remedy. He may still sue on title.

The 2018 Amendment added the words "any person through whom he has been in possession or any person" to section 6(1). A predecessor in possession can now sue.

4. After six months: prior possession

The Supreme Court explained the position in Nair Service Society v. K.C. Alexander (1968), a case under section 9 of the earlier Act of 1877 that became section 6. After six months the defendant may raise his title. The plaintiff can still sue on his earlier possession within 12 years. If the defendant proves a better title, the plaintiff fails. This avoids the risk of losing the right altogether through a missed six-month deadline.

5. Why the law protects even a wrongdoer's possession

If every owner could retake property by force whenever he believed he was right, disputes would end in violence. The Supreme Court said this in Lallu Yeshwant Singh (1968) and in Krishna Ram Mahale (1989). A person in settled possession cannot be put out except by recourse to law, even if he has no right to stay.

The rule has a limit. A true owner may throw out a trespasser while he is in the act of trespassing. That right is not available once the trespasser has completed his possession with the owner's knowledge. The owner must then go to court. The Supreme Court noted this in Krishna Ram Mahale.

6. Section 7: recovery of movable property

Section 7 does for goods what section 5 does for land. Two Explanations widen who may sue. A trustee may sue for movable property in which his beneficiary has an interest. A special or temporary right to present possession is enough. So a pawnbroker, a bailee or a hirer in possession can sue a stranger who takes the goods.

7. Section 8: a non-owner must hand over the specific article

Section 8 is narrower and stronger. A person may hold or control a particular article without owning it. He can be compelled to deliver it to the person entitled to immediate possession, in four cases.

(a) the defendant holds the thing as agent or trustee of the plaintiff;
(b) money would not give the plaintiff adequate relief for the loss of the thing;
(c) it would be extremely difficult to find the actual damage caused by the loss;
(d) possession has been wrongfully transferred from the plaintiff.

The Explanation helps the plaintiff. In a claim under clause (b) or (c), the court shall presume that money would not be adequate and that the damage would be hard to measure. This holds unless the contrary is proved.

Example. Padma gives her late father's rare diary to an agent to keep safe. The agent refuses to return it. Clause (a) applies, and the diary is hard to value in money. The court may order the agent to deliver the diary itself.

Section 5 and section 6 compared

Point	Section 5: title suit	Section 6: possessory suit
What must be proved	A better title than the defendant	Earlier possession and dispossession without due process
Can the defendant plead title?	Yes. Title is the whole issue	No. Section 6(1) shuts it out
Time limit	Generally 12 years (Limitation Act, Article 65)	Six months from dispossession
Against the Government	Maintainable	Barred by section 6(2)(b)
Appeal or review	Available in the ordinary way	Barred by section 6(3)
Effect on title	Decides title	Does not decide title. Section 6(4) saves a title suit

Don't confuse: dispossession suit and title suit

Students often write that section 6 is "a suit for ownership". It is not. It decides who is to be in possession for now. Ownership is decided only in a section 5 suit.

Inside the concept (section 6). Ravi is forcibly put out of his godown in Kurnool by a man who says he is the real owner. Ravi sues within two months. The court asks only whether Ravi was in possession and was removed without law. It restores possession to him.

Just outside it (section 5). Ravi's rival now sues to prove he owns the godown. He must establish his title with documents. The court decides ownership and orders delivery if he wins. Section 6 does not bar this suit.

Common mistakes

Saying that the owner may re-enter by force. He must go to court once possession is settled.
Forgetting the six-month limit and the bar on suits against the Government under section 6.
Writing that an appeal lies from a section 6 decree. Appeal and review are barred (section 6(3)).
Thinking that the loser in a section 6 suit loses his ownership. Section 6(4) saves the title suit.
Mixing up sections 7 and 8. Section 7 is about movables in general. Section 8 is about delivery by a non-owner in four cases.

Apply it

Problem

Suresh runs a tea stall on a plot in Vijayawada under a licence that ended two months ago. The owner, Kishore, arrives with helpers, removes the stall and locks the plot. Suresh files a suit four months later. Kishore says the plot is his and the licence has ended. What is the position?

Issue. Can Suresh recover possession although Kishore is the owner?

Rule. A person dispossessed of immovable property without his consent and otherwise than in due course of law may sue within six months, notwithstanding any other title (section 6). A person in settled possession cannot be removed except by law (Krishna Ram Mahale).

Application. Suresh was in possession and was removed without a court order. Krishna Ram Mahale protected a licensee's settled possession in the same way. The suit is within six months. Kishore cannot plead his title as a defence.

Conclusion. The court should restore possession to Suresh. Kishore may then file a title suit under section 5 (section 6(4)).

Leading case laws

Lallu Yeshwant Singh v. Rao Jagdish Singh (1968)
Facts. Landlords in the former Gwalior State said tenant-cultivators had lost their rights by not paying land revenue. They forcibly took the land and put other cultivators in place, without going to court. AIR 1968 SC 620.

Principle. The tenants' rights were not extinguished automatically. In any case, a person cannot take possession by force even if he believes he has a good claim. "Disturbed unlawfully" means disturbed not in due course of law.

Why it matters. It is the foundation of the rule now in section 6.
Krishna Ram Mahale v. Shobha Venkat Rao (1989)
Facts. The owner of a restaurant business took possession on 15 February 1959 behind the back of the woman who ran it under an agreement. He relied on notices that she said she never received. (1989) 4 SCC 131.

Principle. A person in settled possession cannot be dispossessed by the owner except by recourse to law, even if he has no right to remain. The rule does not depend on a suit under section 6. The Court appointed a Court Receiver to put the plaintiff in possession.

Why it matters. It states the "no self-help" rule in the clearest terms.
Nair Service Society v. K.C. Alexander (1968)
Facts. The Supreme Court considered an ordinary suit for possession filed after six months, and contrasted it with the possessory remedy of section 9 of the Specific Relief Act, 1877. AIR 1968 SC 1165.

Principle. In a possessory suit within six months, title is not in issue. After six months the defendant may plead title. The plaintiff may still sue on prior possession within 12 years.

Why it matters. It explains the relation between section 6 and ordinary suits for possession.
Sanjay Kumar Pandey v. Gulbahar Sheikh (2004)
Facts. A trial court decreed a suit under section 6 of the Specific Relief Act, 1963. The defendants filed a revision under section 115 of the Code of Civil Procedure. (2004) 4 SCC 664.

Principle. The loser's remedy is a suit on title. A revision is possible only as an exception, within the settled limits of revisional power.

Why it matters. It shows how section 6(3) works in practice.

How to write this answer in the exam

5-mark answer (for example, "remedy of a person unlawfully dispossessed")

Name two remedies: section 5 (title suit) and section 6 (possessory suit).
State section 6(1): dispossession without consent and not in due course of law; title is no defence.
Give the limits: six months, not against the Government, no appeal or review.
Add section 6(4): a title suit remains open.
Close with Lallu Yeshwant Singh or Krishna Ram Mahale.

10-mark answer

The rule that no one may take the law into his own hands.
Section 5 with Article 65 of the Limitation Act.
Section 6 in full, with the 2018 change to section 6(1).
The comparison table.
Sections 7 and 8 with the Explanation to section 8.
Cases: Lallu Yeshwant Singh, Krishna Ram Mahale, Nair Service Society.

Key points to remember

Section 5 is a title suit under the Code of Civil Procedure. Section 6 is a quick suit on possession.
Section 6: six months, not against the Government, no appeal or review, title no defence.
Section 6(4) always saves a separate suit on title.
Settled possession is protected even against the true owner (Lallu Yeshwant Singh; Krishna Ram Mahale).
Section 7: recovery of movables. A trustee may sue, and a temporary right to possession is enough.
Section 8: four cases where a non-owner must deliver the article, with a presumption for the plaintiff in clauses (b) and (c).

Quick self-test

1. Within what time must a section 6 suit be filed?

Within six months from the date of dispossession.

2. Can the defendant in a section 6 suit plead that he is the owner?

No. Section 6(1) says the suit lies notwithstanding any other title that may be set up.

3. Does an appeal lie from a decree in a section 6 suit?

No. Section 6(3) bars appeal and review. A suit on title remains open under section 6(4).