SRA
sections:-
5 - recovery of immovable property
two ways
1. on the basis of possessory title article 64 r/w section 5
sra COA - settled possession and dispossession
2. on the basis of ownership title article 65 r/w section 5
sra COA - title and denial
3. limitaion period is 12 years
5. in a suit for section 5 r/w article 64 -- title cannot be
raised by plaintiff
unless defendant raises title in ws
6. execution for both 5 and 6 order 21 r 35 - 36
section 6
FASTEST PROCEDURE
REQUIREMENT of POSSESSION - ANIMUS posssidendi /
CORPUS i.e., intention to exclude others from interfering
and physical control over the property.
1 recovery of possn of immovable property
2 titles cannot be raised in this
3 suits can be filed by any person interested
4 suits cannot be filed after 6 months of dispossession
5 suits cannot be filed against govt.
6 section 6 does not take away the remedy of section 5
7.neither appeal nor review.
8.RJ will apply only on the issue of possession or
possessory title and not on ownership title question /
issue.
9. Who can file the suit
1. Person dispossessed
2. Any person claiming through the person
dispossessed
3. Any person through whom the person dispossessed
was put in possession
SECTION 110 IEA – possessor presumes owner
rebuttable presumption BOP on person who denies the
ownership.
CASE - NAIR SERVICE SOCIETY LTD. V. K.C. ALEXANDER
(1968 SC)
• whether suit under s. 5 r/w 64/65 be clubbed
together with section 6 suit ?
ANS. NO AS RESULT IN DELAY AOF REMEDY OF
SECTION 6 OTHERWISE NO PROHIBITION ON
CLUBBING.
• does section 6 bar suit under section5 r/w section
64 ?
ANS. no bar but not needed one is enough.
• RJ point.
section 7
• Entitlement – ownership or possessory eg. Bailment
pledge or trust
• recovery of movable property
• talks about immediate possessor
• O.20 r.10 cpc courts duty to mention money
equivalent.
• Appendix a form 32
• O 31 R1 – beneficiary can be made party for suit filed
herein
• Relief – delivery of good or money equivalent +
compensation for detention
section 8
• Order 21 r. 31 (2) form 39 appx A
• recovery of possession of movable property
• suit cannot be filed against true owner (having
immediate possn)
• suit can be filed against the trustee and agent
(PLAINTIFF)
• when the property is such difficult to ascertain value
in terms of money or money is not adequate relief
(shall presume such situation ) ( BOP – DEFENDANT
as in explanation provided that court will presume
the plaintif assertion)
• wrongfully transferred (PLAINTIF )
• relief – injunction if threat + compel delivery of
property
SECTION 27
LIMITATION ACT perfecting title by adverse
possession.
PERMISSIVE POSSN AND ADVERSE POSSN
12 YEARS OF ADVERSE POSSN WITHOUT INTERRUPTION
EVERYTIME INTERRUPTION IN PEACEFUL LIVING NEW
TIME PERIOD START RUNNING ( nec vi – peaceful, nec
clam – open, nec precario – continuous)
LANDMARK JUDGEMENT
1. CASE – RAVINDER KAUR GREWAL AND ORS.
V.
MANJIT KAUR AND ORS. (2019 SC) 3JB
HELD – from 7/8/2019
. declaration of title by adverse possn
. sword not shield
. no declaration then still use as shield.
2. CASE – MARIA MARGARITA SEQUERIA FERNANDES
V.
ERASMO JACK DE SEQUERIA (2012 SC )
HELD-
• permissive possn / gratuitous living no title
• Caretaker servant watchman etc no title long stay
immaterial
• Court only recognize title with lease rent license etc.
• TENANT CAN NEVER PERFECT TITLE IF ADMITTED
TENANT AS PER SECTION 116 OF IEA
EXCEPTIONS TO SP
1)SUBSTITUTED PERFORMANCE
section 20 –
• one of exception to SP
• get it done by his own agency or 3rd party + get
compensation + cost.
• actual substituted performance needed for
compensation.
• Damages u/s. 73 ICA
• Before SUP notice in writing of 30 days
SECTION 14
bars as to subject matter of suit
• Substituted performance
• Continuous duty
• Personal qualification
• Nature determinable
SECTION 16
• Bars as to the person
• Substituted performance
• Readiness ( actual tendering of money not necessary
)and willingness
• Variance, terms violates, subversion, fraud etc (
section 18 - when defendant sets up variation)
• Earlier requirement of averment in pleading not
anymore
CASE – AATMA RAM
V.
CHARANJIT SINGH (2020 SC)
HELD-
• READINESS AND WILLINGNESS
• ISSUES NOTICE AND INSTITUTE SUIT MANY YEARS
LATER
CASE – JP BUILDERS
V.
A. RAMADAS RAO (2011 SC)
HELD –
• Even if no averment then no sp.
CASE- JASBIR SINGH
V.
PHOENIX ARC PVT. LTD. (2019 DHC)
HELD-
• Essential to aver in pleadings
CASE- VIJAY KUMAR
V.
OM PRAKASH ( 2018 SC)
HELD-
• Readiness and willingness to be shown throughout
thus averment necessary.
CASE – SUGHAR SINGH
V.
HARI SINGH (2021 SC)
HELD-
• Not sure whether this amendment of s. 16© is
retrospective or not but one can check from the
facts whether the readiness or willingness even if
not aver .
SECTION – 21
COMPENSATION
• Sp + compn
• Section 73 follow for calculating
• Claiming compn is necessary + o6 r 17 allowed
• Court can give if thinks fit both or any if Sp not
adequate relief
SECTION 22
Other reliefs with sp (may)
• Partition, possn , etc.
• Refund of earnest money + mesne profits + deposit
paid + needs to be claimed specifically.
• Compesn u/s. 21 + other reliefs + sp
SECTION 23 –
Liquidation of damages doesn’t mean bar to sp.
SECTION 24 –
• SP + COMPN
• no comp. asked and suit for sp dismissed = bar on
compn relief.
• Suit decreed then 02 r2
• Each COA new relief. Section 24 bars compn only
and o2 r2 bars fresh suit w.r.t any relief.
SECTION 12 –
PART PERFORMANCE
• General rule – pp not allowed ( EXCEPT SRA
PROVISION IF ANY )
• Small proportion – pp allowed + admits compn
• Considerable part + admits compn – residue part
perform and pay for that only
• doesn’t admit compn – whole amt. paid doesn’t
matter considerable or small proportion.
+
Relinquish any sp claim + compn.
• Separable part sp do it and leave other part
CASE- B. SANTOSHAMMA
V.
D. SARALA (2020 SC )
HELD –
• Purposive interpretation and liber promotes justice.
NEXTTOPIC - RECTIFICATION SECTION
26
• Mutual mistake and fraud ( instrument or contract )
• Either part or their LR may claim, plaintiff in any
already going on suit,defendant same thing with any
of his defence
• If court thinks no real intention of party shown due
to mutual mistake or fraud may direct rectification
subject to rights of third party in good faith and for
value.
• O6 r17
NEXT TOPIC –
RECISSION ( section 27 – 30 )
Section 27 –
• contract -
• Who can file – any person interested in © (
REPRESENTATIVE / ASSIGNEE)
• When granted –
1) © is voidable and terminable by plaintiff
2) When © unlawful and defendant more to blame
3) Pari delicto both at fault then no rescission.
• When can it be refused
1) When plaintiff ratifies it ( expressly or impliedly )
2) Status quo ante cant be done due to changed
circumstances
3) 3rd party interest good faith
4) Non – severable.
Section 28 –
• Suit for rescission when SP decreed
• Court passes preliminary decree for sp and direcyed
to pay amt. within 3 months as per o20 r 12A
• Amt. not paid may give more time check readiness
and willingness, still no payment then rescission
(section 148)
• Apply for rescission in same suit on application +
may earnest money /deposit/ mesne profits + shall
possn
• If amt. paid the – give possn and etc.
• Cost court discretion
SECTION 29 –
• One can ask alternatively for rescission in suit for sp
SECTION 30 –
• Restore benefits if any to prevent unjust enrichment
• party receive any – EQUITY
CASE – ABRAHIM STEAMSHIP CO.
V.
WESTWILLE SHIPPING CO.
(1923 )
HELD –
• Rescission puts party in status quo ante position.
CASE – KAMAR BAI V. BADRI
NARAYAN (BOMB.HC 1977)
HELD –
• Sale in favour of mistress
• Both at fault no rescission.
TOPIC – CANCELLATION ( 31 &
33 )
SECTION – 31 not a right in rem
• If any person having strong apprehension ( legal
heirs not strangers)
• Void or voidable contract or instrument ( written )
• Cause serious injury later
• Get it cancelled
• If registered then copy to registrar of such
cancellation
SECTION – 32
• If severable then cancel the part
SECTION – 33
• Based on restoring benefits + compensation plaintiff
if received any
• Defendant take defence and succeed
1) Defence of instrument being voidable – then
defendant resore benefit + compensation
2) Defence taken instrument void – due to
section 11 of ICA restore benefits
CASE - SUHRID SIGH @ SARDOOL
SINGH V. RANDHIR SINGH ( 2010 SC )
HELD -
• Conditions-
• Instrument void or voidable
• Serious apprehension
• Court adjudged instrument as void or voidable.
NEXT
TOPIC – DECLARATION (SECTION34 &
35)
Limitation period given under 56 -58 = 3 years
SECTION 34
Jus in personam
• Any peron entitles to
Legal character or righ to property
Denied or in future interested to deny
• Institute suit for declaration against those.
• Proviso – if any further relief is there do ask or else
suit will dismiss
• Declaration simplicitor non executable , if with F.R.
then executable.
SECTION 35
• Decleration bound now and future trustees.
NEXT TOPIC
– INJUNCTION ( 36 – 42 )
SECTION 36
Two types of injunction
SECTION 37
Defines injunction
• TI – filed at any stage
• Regulated by cpc order 39
• Application not suit
• Decided upon application not merits and order
passed
• Continues till specified time
PI
• CONTINUES TILL PERPETUITY
• DECREE PASSED
• Suit filed
• Merits of suit
TEMPORARY INNJUNCTION O.39
ORDER 39 R1
WHEN TI CAN BE GRANTED
• Either of the party when alienate sell etc.
• PROVED ON AFFIDAVIT
• Plaintif when threatened to dispossess or alienate
intends to do so etc
• Plaintiff when alinate, wasted, damaged property
• Can be filed at any stage of suit
R2
• Restrain defendant from breach of contract or any
injury which might be caused to him from same
property.
R2A
• If disobeyed injunction order
• Sell attached property can remain in force for 1 year
if still breach then sold
• Civil prison for 3 months atleast
R3
• Exparte ad-interim injunction
• If court thinks that notice to defendant will result in
delay record reasons on no notice
• Condition of exparte injunction
1) Copy of plaint / documents relied upon/ copy of
affidavit
2) Send to the defendant immediately
3) Send an affidavit to court same day or next day of
conditions being complied with.
R 3A
• Court try to dispose appln in 30 days from date of
injunction
• If doesn’t then record reasons.
R4
Order can be set aside /discharged/ varied
• Upon parties application
• If found that appln for TI was false and misleading –
vacate order unless recorded reasons justice
requires
• Order passed after hearing both parties still can
vacate if change of circumstances undue hardship to
party
CASE – GUJARAT BOTTLING CO.
V. COCA COLA LTD. (1995 SC)
HELD – TRIPLE TEST FOR GRANTING TI
• Prima facie case
• Balance of convenience in favor of plaintiff
• Irreparable loss / injury.
TEMPORARY
MANDATORY INJUNCTION
CASE - SAMIR NARAIN BHOJWANI V.
AURORA PROPERTIES AND INVESTMENTS ( 2018 SC )
HELD –
• Ccircumstances show that status quo
altered
• Justice and parties demands that anti
status quo to be done.
CASE - HAMMAD AHMAD V.
ABDUL MAJEED ( 2019 SC )
HELD –
• Court to be cautious while granted
• Strong circumstances to be checked.
TYPES
OF TI ORDERS
ANTON PILLER ORDER
CASE - ANTON PILLAR KG V.
MANUFACTURING PROCESSES LTD. (1976 )
HELD -
• Order to inspect document without warning to other
party can be given
• Take in custody docs.
CONDITIONS
• Extremely strong prima facie case
• Irreparable loss
• Clear evidence that defendant has docs.
MAREVA INJUNCTION
CASE - MAREVA COMPANIA NAVIERA SA
V. INTERNATIONAL BULKCARRIERS SA
(1980)
HELD-
• FREEZING OF ASSETS
• NO ALIENATION
JOHN DOE ORDERS / ASHOK KUMAR ORDERS /
ROLLING ANTON PILLAR ORDERS
CASE - TAJ TELEVISION V.
RAJAN MANDAL (2003 DHC )
• When defendant not known
• Generally used in IPR situations
• Artistic works etc.
• Allow plaintiff to search and seize and prevent
evidences from being destroyed.
DYNAMIC INJUNCTION
CASE - UTV AND ORS. V.
1337 X . TO AND ORS. (2017 DHC )
CASE- DISNEY ENTERPRISES INC. V.
MI LTD AND ORS. (2018 HC OF REPUBLIC OF
SINGAPORE )
• PASSED AGAINST WEBSITES
• BORROWED FROM SINGAPORE COURTS
NEXT TOPIC
PERPETUAL INJUNCTION ( 38 – 42 )
SECTION 38 – subject to injunction ch.
• When no sp can be granted there no perpetual
injection can also be granted as the PI will be
guided by the principles of chapter 2 that is
specific performance. (41 e)
• Prevent Breach of obligation whether express
or implied.
• Grant PI in case of immovable property ( not let
pf enjoy his property or rights invasion)
1) Defendant trustee
2) Actual damage can not be ascertained
which will be caused by invasion
3) Compensation in money is not
inadequate relief
4) Prevent multiplicity of procee. O1r8
SECTION 39 – MANDATORY INJUNCTION
• SOMETHING POSITIVE
• Direct / compel someone to do something
• Restitutory + prohibitive
SECTION 42
• Directs to do something negative
• As per (41 e ) a contract which cannot be specifically
performed cannot ask to do it but can ask something
not to do.
SECTION 40 –
• Damages/ compensation can be asked in addition or
substitution to MI OR PI
• Claiming necessary
• O6 r17
• Suit of injunction dismissed no relief od damages
claimed then bar to fresh suit as per s. 40 (1)proviso
• If suit decreed then o2 r2
SECTION 41 TOO MUCH READ FROM NOTES
SECTIONS
20A 20B 20C
• INFRASTRUCTURE PROJECTS
• No injunction id will cause delay
• Central govt. can notify changes
• Procedure
• Special courts under 20B by state govt. in
consultation with the CJHC
• Dispose within 12 months extra 6 months may be
allowed 20C
• Schedule 5 categories
1) Transport
2) Energy
3) Water and sanitation
4) Communication
5) Social and commercial infrastructure
SECTION 14 A
• If expert evidence needed
• Court decide cost
• Record such evidence
• Cross examination allowed
2018 amendment act 1/8/2018
Substituted sections
10 / 14 / 20 /
Added articles
20 A B C / schedule
ARTICLES OF LA
Article 54 for sp – 3 years
For compn breach of cont – 3 years article 55
