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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Recovery of possession of immovable property

Thursday, May 17, 2012
Recovery of possession of immovable property

Recovery of possession of immovable property — A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right — To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Once the title is prima facie established, it is for the person who is resisting the title holder’s claim to possession to give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Person resisting the title holder’s claim to possession and claiming right to continue in possession, held, must give all such details as enumerated hereunder — They are only illustrative and not exhaustive. 

 

 (a) who is or are the owner or owners of the property;

 

 (b) title of the property;

 

 (c) who is in possession of the title documents

 

 (d) identity of the claimant or claimants to possession;

 

 (e) the date of entry into possession;

 

 (f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;

 

 (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

 

 (h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;

 

 (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

 

 (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

 

 (k) basis of his claim that not to deliver possession but continue in possession. 

 

   Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings — All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed — While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents — The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Suit for mandatory injunction — It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration — The Court’s primary concern has to be to do substantial justice — Even if the Court in an extraordinary case decides to grant ex-parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad interim injunction was obtained by him — It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible — It is the demand of equity and justice — Specific Relief Act, 1963, Section 39 — Civil Procedure Code, 1908, Order 39, Rules 1 and 2.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Suit for injunction — Grant of mesne profits while granting or refusing injunction, held, will reduce frivolous litigation.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Grant of injunction — The Court while granting injunction should broadly take into consideration the prevailing market rentals in the locality for similar premises — Based on that, the Court should fix adhoc amount which the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it will be a charge upon the property.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Power of court to direct the person who wishes to continue in possession to pay a particular amount — The Court can direct payment of a particular amount and for a differential, direct furnishing of a security by the person who wishes to continue in possession — If such amount, as may be fixed by the Court, is not paid as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence — This is a very important exercise for balancing equities — Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind and make a proper order of granting mesne profit — This is the requirement of equity and justice.

 
Recovery of possession of immovable property

Recovery of possession of immovable property — Specific Relief Act, 1963, Sections 6 and 39 — Civil Procedure Code, 1908, Order 39 Rules 1 and 2 — Principles of law which emerge in this case are crystallized as under:-

 

 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

 

 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

 

 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

 

 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

 

 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.

 
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