Specific Relief Act, 1877 [Section 1-11]


Specific Relief Act

(I of 1877)

 

S. 9—Object—If
the plaintiff can prove his previous possession, he may recover possession from
the defendant who dispossessed him without reference to any question of title.
Even where the person ousting claims a superior title, the person dispossessed
is entitled to be restored to possession if he can prove his previous
possession and brings an action within six months from the date when the
dispossession occurred.

The object
is to prevent persons taking the law into their own hands, however good their
title may be. Sona Mia Vs. Prokash AIR 1940 Cal. 464; Rudrappa Vs. Narsing
Rao (1905)29 Born 213 ; Baira Vs. Lakshni Ins. Co. AIR 1957 All 709; Sasish Vs.
Madan, 58 Cal 29.

 

—Points for
determination in a suit under S. 9—
The effect of this section, therefore, is
that if a summary Suit is brought within six months, the plaintiff therein who
was dispossessed otherwise than in due course of law, will be entitled to be
reinstated even if the defendant, who dispossessed him, be the true owner, or a
person claiming under him.

Ganga Din
Vs. Bakul AIR (1950) All 407.

 

—What the
plaintiff must prove in a suit under s.9
.—In a suit under s. 9 the plaintiff is to
prove—

(i)
that he was
in possession;

(ii)  
that he has
been dispossessed, i.e., deprived of actual physical possession of land.

(iii)
that the
dispossession took place without his consent;

(iv)
that it was
done otherwise than in due course of law;

(v)  
that the
dispossession took place within six months before institution of the suit under
s.9.

Sona Mia Vs.
Prokash AIR 1940 (Cal) 464.

Possession—What the
plaintiff has to prove is ‘possession’ and not mere isolated acts of trespass
over the property; he must prove that he exercised acts which amounted to acts
of dominion; and that the act of dominion was exclusive. If the plaintiff’s
occupation has been peaceful and uninterrupted and has extended over a
sufficient length of Line, the inference may properly be drawn that the
plaintiff was in possession.

Rajkrishna
Vs. Muktaram 12 C.L.J. 605.

 

—Provision
of the section applicable only to persons who dispossessed the plaintiff—Others
not involved in the act of dispossession if added after six months’ time as
parties will not affect the validity of the suit.

The suit
having been brought within 6 months from the date of dispossession by the
defendants dispossessing him it was maintainable under section 9 of the Act.
The added defendants being not the persons who dispossessed the plaintiff,
their addition after 6 months does not affect the validity of the suit and
section 22 of the Limitation Act has no application to a case like this.

Mantaj Khan
Vs. Ali Ahmed Khan, (1969) 21 DLR 354.

 

—Co-heirs
arc not necessary parties in a section 9 case if no relief is claimed against
them— Bargadars’ possession is landlord’s possession as such they are not
necessary parties in section 9 case.

Dispossession
of the Bargadar is a dispossession of the landlord himself and as such the suit
could clearly be brought by the plaintiff himself and without impleading the
Bargadar.

Sadan Kamar
Vs. Atabuddin Sarkar (1969) 21 DLR 715.

 

—Section 9
not concerned alone with actual physical possession—Persons claiming possession
through tenants or bargadars competent to bring action under this section.

Karamat
Fakir Vs. Safiruddin Sk. (1969) 21 DLR 929
.

 

—The
plaintiff being dispossessed by the defendant from the suit land instituted
suit under section 9 of the Specific Relief Act for recovery of possession but
the defendant subsequently instituted a title suit in respect of the same land
praying for stay of the previously instituted Suit under section 10 C.P.C.

Subsequent
suit and not the previously instituted suit could be stayed under section 10
C.P.C.— Court can, however, stay the previously instituted Suit under section
151 C.P.C., if circumstances demand to stay the suit for the ends of justice.

Mst. Arifa
Begum Vs. Khaleque Muhammad Nakvi, (1969) 21 DLR (WP) 209.

 

—Section 9
is concerned with physical possession but not with title.

Before a
person can come under section 9, he has to show that he had actual physical
possession of the immovable property from which he was dispossessed without his
consent by the defendant within 6 months prior to the intuition of the suit.

The rule is
now well-established that where allegations in a plaint arc those of ownership,
no decree can be passed under section 9 of the Act.

Abdul Jameel
Vs. Haroon, (1969 )21 DLR (WP) 293.

 

—Possessor’s
possession is good against all but the real owner.

C having
purchased the property from a person in possession is entitled to recover
possession from those who dispossessed him without any semblance of right,
title and interest in the property. Possession on the basis of purchase is good
against all except the true owner. His title cannot be questioned by a stranger
nor his possession disturbed.

Abdul Salam
Vs. Abdul Soban, (1970) 22 DLR 310.

 

—In due
course of law.

The words
“in due course of law” in section 9 do not mean that the party against whom a
suit for recovery of possession is filed must, in due course of law, be in
possession as a result of the proceedings between the same parties.

Abdur Rahman,
Vs. Mofizuddin Bhuiya (1955) 7 DLR
335.

—In order to
bar a suit under section 9 it is not necessary that the possession in “due
course of Law” must be possession as a result of the proceedings between the
parties.

Abdur Rahman
Vs. Mofizuddin Bhuiya (1955) 7 DLR 335
.

 

—No appeal
or review lies from an order or decree under the section.

Section 9 of
the Specific Relief Act, 1877, provides a quick remedy for the recovery of
possession, where a person is dispossessed of immoveable property. In other
words, the object of the section is clearly to discourage forcible
dispossession. The last part of the section expressly prohibits an appeal from
or review of any order or decree passed in any suit under this section. A party
adversely affected in a suit under the section has an alternative remedy by way
of a regular suit for establishing title and it covering possession or by way
of revision to High Court under section 115 of the Civil Procedure Code, but
any order passed in appeal, against the express provisions of law, as contained
in the last part of section 9, Specific Relief Act, must be held to be without
jurisdiction and a nullity in the eye of law.

Nawabzada
Muhammad Umar Khan Vs. Muhammad Asif (1964) 16 DLR (WP) 164.

 

—On the date
of dispossession the defendant dispossessed the plaintiff otherwise than in due
course of law. The subsequent acquisition of title, if any, by way of lease
from Enemy Property Authority did not validate the illegal dispossession by the
defendants.

Pramatha Nath Das Vs. Shamsur Rahman (1977) 29 DLR 347.

—In a Suit
under section 9 of the Specific Relief Act, the Court will not adjudicate upon
the title of the parties.

Dr. Kudrat
Ali Vs. Munsur Ali (1964) 16 DLR 599.

 

—Possessor’s
possession is good against all but the real owner.

A person who
first succeeded in taking possession of a thing which belonged to none, becomes
the owner of t. If he takes possession of a property which belongs to another
he does not become the owner but his possession is good against all except the
true owner. If he is dispossessed by a stranger he is entitled to recovery of
possession as of possessory owner. If a possessory owner is wrongfully deprived
of the thing by a person other than the true owner, he can recover it.

The
expediency of this doctrine of possessory ownership is based on sound reason.
Were it not for such a rule, force and fraud would be left to determine all
disputes as to possession between persons of whom neither could show an
unimpeachable title to the thing as the true owner of it.

Where a
trespasser has got no semblance of title, the observation of the Privy Council
in the case of J.P. Wise has got no application.

The
plaintiff company were let into peaceful possession of the disputed land and
the plaintiff company. was found to be in possession till it was dispossessed
by the defendant who had no title to the property.

The
plaintiff is entitled to get a decree for recovery of khas possession after
evicting the defendant from the disputed land on the basis of the possessory
title even if they had not acquired any valid title.

Aminul Islam
Vs. M/S. Kilburn & Co. Ltd. Paikstan (1966) 18 DLR 691.

 

—Suit for
possession—Title cannot be pleaded in bar of a suit or this nature.

Any
discussion in respect of title to a holding is beyond the scope of a suit for
recovery of possession inasmuch as to do so would be to Trespass into the field
of a suit for declaration of title.

Debendra
Mohan Das Vs. Mohd. Afazuddin (1965) 17 DLR 187.

S. 11—When the plaintiff in effect asks for delivery of a specific
moveable property in terms of section 11—Proper relief for delivery of the
property can be granted to him under Or. 7, r. 7 C.P. Code.

S. Sibtain
Fazli Vs. Star Film Distributors (1962) 14 DLR 308.

 

S. 12—Onus of proof is on the transferee who purchases while there is a
subsisting contract between the vendor and the plaintiff to prove his bona fide
purchase—Quantum of such proof is light—mere denial is held to be sufficient.

Dula Mia Vs
Haji Md. Ibrahim, (1956) 8 DLR 616=8 PLR (Dac) 326.

 

Subsisting
contract for sale—
When a vendor executes a deed of sale but it remains unregistered
and the vendee sues for specific performance of the original contract the
question that is to be considered is whether there is a subsisting contract for
sale or not. If the contract be subsisting the vendee has a statutory right
subject to the provisions of the Specific Relief Act to have the contract
performed. The suit cannot be defeated merely because the deed which was
executed had not been registered.

It will have
to be decided on the facts of each case whether there is still a subsisting
contract and the suit cannot be barred by the mere fact that the document
already executed remains unregistered. 1953 PLR (Lah) 210.

An equitable
relief only—
Specific performance of contract is an equitable relief, and
though it may be lawful to grant it, the Court may yet refuse to do so.

In the
circumstances of the case, the plaintiff is not entitled to a decree of
specific performance of contract. It will be more in accord with principles of
equity to release the parties from the contract subject to the equitable relief
to the plaintiff.

Banka Ch.
Das Vs. Abdul Wahed Bhuiya (1955) 7 DLR 556.

 

Presumption
under the section—
Presumption under the section is that breach of contract for sale
of immovable property cannot be adequately compensated by money payment.

This presumption is rebuttable and onus lies on the person who seeks to avoid it—Alternative
method of performance by payment of money— stipulation must clearly provide for
such alternative.

Dula Mia Vs.
Haji Md. Ibrahim (1956) 8 DLR 616=8 PLR (Dac) 326.

—Onus of
proof is on the transferee who purchases while there is a subsisting contract
between the vendor and the plaintiff to prove bona fide purchase—quantum of
such proof is light—mere denial is held to be sufficient.

Dula Mia Vs.
Haji Md. Ibrahim (1956) 8 DLR 616=8 PLR (Dac) 326.

 

Specific
performance of contract re-execution and registration of document.

—Where the
suit is brought within three years of the contract, the court is competent to
award a decree for specific performance f the contract directing the legal
representatives of the original vendor to execute a kabala in accordance with
the terms of the original kabala and have the same registered,

Hafez Ahmed
Vs. Obedur Rahman (1955) 7 DLR 263.

 

—A contract
relating to sale of immovable properties cannot be said to have been
specifically performed till the kabala embodying the terms of the contract is
presented for registration either by the executants or his legal
representative.

Hafez Ahmed
Vs. Obedur Rahman (1955) 7 DLR 263.

 

—Onus of
proof when contract is subsisting contract.

In a suit
for specific performance of a contract against a transferee who took subsequent
to the contract sued upon, the burden of proving good faith and lack of notice
is upon the defendant.

Sekandar Ali
Vs. Anwar Ali (1959) 11 DLR 177.

 

—Suit for
specific performance of contract wilt not be decreed, where it will defeat the
provision of existing law, is opposed to public interest and adversely affects
the Government financially—Relief by way of specific performance of contract is
an equitable relief and will not be granted where it will be unconscionable to
allow it.

Mir Hasmat
Ali Vs. Birenda Kumar Gosh (1964) 16 DLR 239.

 

—Contract in
favour of several persons jointly—One of them can bring a suit for enforcement
of contract on payment of the entire amount due
.

Certain
property was sold by several persons who secured a condition of repurchase
within a certain stipulated Lime on payment of a fixed sum. Only one of the
vendors applied, in terms of the agreement of repurchase, for reconveyance of
the property but was met with the defense that in order to succeed in the Suit
for repurchase, all the vendors must be parties to the suit.

Held: The Suit
must be decreed for reconveyance. Though the reconveyance will be executed in
favour of plaintiff No. 1 it will ensure to the benefit of all other
co-contractors subject to the payment of their share of the money to the
plaintiff and it is no concern of the vendee how they arrange this among
themselves.

Niranjan Das
Vs. Charu Bala Das (1963)15 DLR 611
.

 

Mortgage—piecemeal
redemption not allowable—
In a contract of mortgage one out of several mortgagors cannot
enforce his right of redemption against the mortgagee in respect only of his
share of property on payment of proportionate mortgage money unless the
mortgagee agrees to it. If he is to redeem the mortgage he is to redeem the
whole of the mortgage on payment of the entire mortgage money. Similarly, here
the right created by the agreement for reconveyance is joint and several and
any one of them can enforce it in respect of the whole and cannot enforce it in
respect of his share only.

Niranjan Das
Vs.
Charu
Bala Das (1963) 15 DLR 611.

—Suit under
Specific Relief Act would lie for registration of a document when registration
has been refused under section 77 of the Registration Act.

Hazi
Goyzuddin Vs. Mahammed Serajul Haq Mia (1962) 14 DLR 148.

 

—Specific
performance of contract—Court can grant relief treating the prayer as one for
relief sought in a suit for specific performance of contract, when the required
court-fee has been paid, even though the prayer in a particular case was made
in the form of a mandatory injunction.

Court’s
discretion to grant or refuse relief in a suit for specific performance of
contract is similar to a suit for injunction and as such it exercises a similar
discretion in granting or refusing relief in respect of a Suit for injunction.

Any
equitable ground of refusal of relief which would have been open to the
defendant for resisting a suit for specific performance would also be open to
him in a suit for injunction.

S. Sibtain
Fazli Vs. M/S. Star Film Distributors (1964) 16 DLR (SC) 200.

 

—After the
completion of contract and the land having vested in the purchaser who obtained
a decree for specific performance of the contract, Government acquired a
portion of the land sold—Vendee becomes the owner of the land sold and
compensation money assessed will be received by the vendee—No frustration of
contract.

The suit for
specific performance of a contract for sale of land was decreed on 3.11.51. An
appeal to High Court against the decree was dismissed on 6.2.58.

The contract
was entered into on 30.9.47 and sonic consideration passed to the vendor by way
of earnest money and the vendee was put in possession of the land under
contract.

On 13.12.58
a portion of the land was compulsorily acquired by the Government and
compensation for the acquired land was assessed.

In May 1959,
the decree-holder (in the suit for specific performance of the contract)
applied for amendment of the decree for the purpose of getting a kabala in
respect of the compensation money awarded by the Government and the Court
accordingly directed that the defendant shall execute the kabala in respect of
the award money as fixed by the government on account of compensation. An
appeal was preferred against this order to the High Court which was rejected.
Special leave was granted by the Supreme Court to consider whether a decree for
specific performance of a contract for sale of land could be modified as has
been done in the case.

It was
argued that the contract had become frustrated in respect of the land which had
been compulsorily acquired by the Government and could not be enforced to that
extent.

When there
is a contract by A to sell land to B at a certain price, B becomes the owner
subject to his obligation to perform his part of the contract by paying the
purchase money; but subject to that the land is the land of B, the purchaser.
The whole of the compensation money under the compulsory purchase order in the
present case will have to go to the purchaser. There being no frustration of
the contract, and it being clear that at least after the making of the decree,
the land vested in the purchaser-Company which had already gone into
possession, the right to the compensation money for the land lost by reason of
the acquisition by Government clearly vested in the purchaser-Company, and it
was in all respect just and proper that the decree to be executed should make
it clear that the purchaser should have exclusive claim to this compensation
money.

Joydeb
Agarwala Vs. Baitulmal Karkhana Ltd. (1964) 16 DLR (SC) 706.

 

—Creation of
equitable estate enforceable in law under Specific Relief Act.

An important
principle which has been certified in Specific Relief Act is the creation of an
equitable estate by the making of contract for sale of immovables. The
ascertainment and enforcement of .such equitable estates forms the main burden
of the Specific Relief Act. A decree for specific performance, made for the
purpose of such enforcement, cannot but have the effect of confirming the
equitable estate in question.

Joydeb
Agarwala Vs. Baitulmal Karkhana Ltd (1964)16 DLR (SC) 706.

 

—Petition of
compromise which formed part of the decree of suit No. 189 of 1957 shows that
the defendant No. 1 had contracted to sell the land in the said title suit No.
189 of 1957, to the other defendants of that suit, if the latter would pay him
Rs. 100/- as price per bigha.

The
defendant on agreeing to sell the lands as per compromise-decree the plaintiff filed
the present suit for specific performance of contract.

Question
arose whether a separate suit would lie on the defendant’s failure to honour
the contract or the plaintiff could seek the relief u/s 47 of the C.P.Code.

Held: The term
embodied in the solenama has created a contractual obligation and as such an
independent suit instead of taking recourse to the provision of section 47 of
the Code of Civil Procedure is not maintainable. The contractual obligation
created on the basis of the solenama appears to have constituted a question of
adjustment within the meaning of section 47 of the Code of Civil Procedure. So
the suit of the plaintiff is not maintainable being hit by the provision of
section 47 of the Code of Civil Procedure.

Syed Ali
Mridha Vs. Hamida Khatun (1974) 26 DLR 279.

 

Sec.
12—Explanation

Breach of Contract—Compensation

The
principle relating to specific relief’s are contained in the Specific Relief
Act, 1877. The explanation to section 12 of the Specific Relief Act raises a
presumption that the breach of a contract to transfer movable-property can be
adequately relieved by compensation unless and until the contrary is proved.

Bazlur
Rahman

Bhuiyan Vs. Bangladesh Shipping Corporation (1982) 34 DLR (AD) 42.