Bombay HC: Remedy U/S 6 Of Specific Relief Act Cannot Be Granted To Person Having No Intention To Reside In Suit Premises

 Considering the overall conspectus of the case, I am of the view that Plaintiff has thoroughly failed to prove prima facie case of being in settled possession of the suit premises as on the date of alleged dispossession. He is a permanent resident of Jordan. He has neither resided continuously or permanently in the suit premises nor has any intention of doing so. Restoring his alleged occupation of suit premises would merely result in Plaintiff locking the suit premises and returning to Jordan. Relief under Section 6 of the Act cannot prima facie be granted in favour of Plaintiff who never had the intention of possessing the suit premises. In absence of element of animus possidendi, Plaintiff ’s settled possession of the suit premises is prima facie not established. Plaintiff would also not suffer any irreparable loss if temporary injunction is refused as he is otherwise not a resident of the suit premises. He will not lose his shelter on account of non-restoration of possession during pendency of the suit. The balance of convenience is also heavily tilted against the Plaintiff. If Plaintiff claims tenancy right in the suit premises, he can file a declaratory suit in Court of Small Causes and secure appropriate relief for restoration of possession of the suit premises. If on the other hand, Plaintiff claims ownership in respect of the suit premises, he can institute a suit for recovery of possession based on title. In both his capacities as alleged tenant or owner, he will have to ‘claim’ possession of suit premises, which was with Radheshyam. Thus, there are ample remedies available to the Plaintiff to seek possession of the suit premises and no loss or prejudice would be caused to him if he is not immediately put in occupation of the suit premises. {Para 24}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L)NO. 30022 OF 2025

IN SUIT (L) NO. 30021 OF 2025

Gaurav Sri Kalyan Vs Ram Naresh Singh and Others 

CORAM : SANDEEP V. MARNE, J.

DATED : 13 OCTOBER 2025.

Citation: 2025:BHC-OS:19047.

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Questions and answers on law part 22

 Q 1:- Landlord has wrongfully dispossessed tenant from tenanted premises. Tenant has filed suit under S 6 of specific relief act for recovery of possession of tenanted premises. Whether suit is maintainable before city civil court or small cause court?

Ans: S 41 of Presidential Small cause court Act

"41. (1) Notwithstanding anything contained elsewhere in this Act but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

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Whether in suit U/S 6 of Specific relief Act wife can claim right to residence in shared household as per DV Act?

Plaintiff was examined as PW1. He deposed in tune with the plaint averments and stated that he purchased the vacant site under Ex. A1 in the name of his son. Since he was retired and it was difficult to get loan in his name, hence, the loan was obtained in his name and in the name of his son. Plaintiffs claim is that he paid the loan instalments out of his own money. His case is that inasmuch as the suit property belongs to him, his son executed two gift deeds under Exs. A2 and A3 in his favour and thereby, the plaintiff became the absolute owner of the suit property. This is the evidence of plaintiff with regard to the origin of the suit property. It must be noted that plaintiffs son Maddimsetti Vasudeva Nrusimha Satyanarayana is not a party to the suit but his wife i.e., D1 is the party. Be that it may, D1 also did not dispute about the factum of execution of the gift deeds. Her case is that the suit property belongs to her husband and in view of the matrimonial disputes between herself and her husband, he colluded with his parents and executed sham and nominal gift deeds in favour of plaintiff obviously to smother her right of residence in the suit property. So from the pleadings and evidence, it is clear that plaintiffs son executed two gift deeds in favour of plaintiff in respect of the suit property and though D1 claims the same as sham transaction, she has not so far filed any independent suit questioning the validity of the gift deeds. It is already discussed supra that in a suit of this nature filed under Section 6 of Specific Relief Act, title of the parties is rot germane for consideration except possession. In that view, for the sake of this suit, the contentions of defendant with regard to the validity of the gift deeds cannot be taken into consideration. On the other hand, having regard to the fact that Exs. A2 and A3 are registered gift deeds, the title of the plaintiff for the sake of this suit can be accepted though the same is the subject-matter in a comprehensive suit based on title.

15. The next crucial aspect for consideration is whether the plaintiff was in possession of the suit property and he was dispossessed by D1 to D3 on the evening of 10.5.2015.

15A. A perusal of Exs. A4, A6 to A15 and A20 to A22 would show that plaintiff has been paying the house tax, electricity bills and water tax to the authorities in respect of the suit property which implies that he has been in occupation of the suit property. Apart from the documentary evidence, the oral, evidence of PWs. 1 and 3 would also confirm the same. Though D1 contended that the plaintiff was never in possession but she has been in possession of the suit property, the same is not borne out by any record except her parole evidence. 

The plaintiff and his wife are aged persons and the record shows that they have been in possession of the suit house and therefore, it is highly unbelievable that seeing the defendants, they would leave the house. So the evidence on record clearly establishes the fact that the defendants have highhandedly dispossessed plaintiff and his wife. The suit was filed on 2.11.2015 seeking recovery of possession and it is clear that the suit was filed within six months from the date of dispossession and the ingredients of Section 6 are complied with.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CRP No. 619 of 2019

Decided On: 12.06.2019

 Maddimsetty Ramana Kumari Vs.  Maddimsetty Narasimha Rao and Ors.

Hon'ble Judges/Coram:

U. Durga Prasad Rao, J.

Citation: AIR 2020 AP 2

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Whether title suit filed by defendant will be barred by res judicata if plaintiff's suit U/S 6 of specific relief Act was decreed?

Consequently, very obviously, even as per sub-section (4) of Section 6 of the Specific Relief Act, the principle of res judicata does not get attracted when a suit instituted under that provision is decreed, except perhaps to the extent that any finding on who actually was in possession of the suit property at the relevant time, cannot be re-agitated in a separate suit.

As regards title to the suit property, to repeat, the principle of res judicata is specifically ousted by sub-section (4).

Naturally, that is the basic principle of res judicata, which however has absolutely no applicability when a suit under Section 6 of the Specific Relief Act is instituted and even decreed in favour of the plaintiff therein, with the defendant therein still not barred from raising the question of title in a subsequent suit.

14. Coming to the argument raised by learned counsel on the touchstone of Section 40 of the Evidence Act, though that provision would obviously be otherwise relevant even to apply the principle of res judicata, however, in the face of a statutory provision under a special Act enacted for the purpose of granting relief in specific circumstances, i.e. the Specific Relief Act, 1963, the aforesaid provision of the Evidence Act would not be applicable, because once the Act of 1963 stipulates that a suit brought under Section 6 of that Act would not debar a party to that lis from instituting a separate suit to prove his title thereto, naturally Section 40 of the Act of 1872 can have no application.

The said provision reads as follows:-

"40. Previous judgments relevant to bar a second suit or trial.- The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial."

15. Consequently, in view of the above discussion, finding no ground to reverse the order of the trial court, this petition is dismissed.

It is however again made clear that as regards any finding on possession of the suit land as was recorded by the trial court in the previous lis (the judgment dated 03.10.2017 in the suit instituted under Section 6 of the Act of 1963), such finding of course cannot be adjudicated upon in the suit in the present lis, at least qua those who were parties to the suit under Section 6.

The suit in the present lis qua title and right of lawful possession of any of the parties thereto, and on the validity of the sale deeds dated 30.03.2007, would therefore be decided wholly on the merits thereof, as per evidence led by both the parties, with no observation made by this court in the present petition to be treated to be having any bearing on such merits of the case of either of the parties, except to the extent of any finding of possession of the suit property as recorded in the previous lis under Section 6 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 2230 of 2019 (O&M)

Decided On: 31.05.2019

Rani  Vs.  Manoj and Ors.

Hon'ble Judges/Coram:

Amol Rattan Singh, J.

Citation: AIR 2019 (NOC) 729 P& H

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Whether Dispossession of tenant by third party is dispossession of landlord?

 A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant. The view of Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. We find ourselves in agreement with the view of Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1930 of 2010

Decided On: 22.02.2010

Sadashiv Shyama Sawant  Vs. Anita Anant Sawant

Hon'ble Judges/Coram:

P. Sathasivam and R.M. Lodha, JJ.

Citation: (2010) 3 SCC 385

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When a person is not entitled to recover possession of property as per S 6 of specific relief Act?

 Section 6 of the Specific Relief Act, 1963 provides a special and speedy remedy for particular kind of grievance to replace in possession a person who had been evicted, from the immovable property of which he had been in possession otherwise than by process of law. Therefore, possession of the plaintiff over the immovable property on the date of dispossession is the condition precedent to invoke the jurisdiction of Section 6 of the aforesaid Act. Investigation into the title favouring such possession is irrelevant in the proceeding of such nature.

11. The plaintiff in the present suit has filed some documents to prove his tenancy over the suit property the said documents do not establish the possession of the plaintiff over the suit property. The said documents are the attested photo copy of the tenancy agreement dated January 25, 2006 being Exhibit 4 which does not speak that pursuant to the said agreement the plaintiff was put into possession of the suit property and the rent receipts also does not establish the possession of the plaintiff over the suit property, particularly when the landlord himself being the DW. 2 disputes the veracity of the said documents. The police complaints are self-serving documents in the absence of any other evidence aiding such document, only on the basis of the said complaints with the police the possession of the plaintiff over the suit property cannot be inferred. The plaintiff at best can rely upon the said documents in a suit or proceeding to establish his right of tenancy over the suit property. The present suit being under Section 6 of the Specific Relief Act, 1963 investigation into such question is totally unnecessary and irrelevant.

12. It appears from the cross-examination of the plaintiff dated December 2, 2014 that he admits that earlier Raghunath Kori was the tenant in the suit property. He also admits that he knew Raghunath Kori and his wife Durga Devi Kori and Raghunath Kori is dead. He further stated that he has no blood relation with Raghunath Kori. He also stated that there is eviction suit filed against Raghunath Kori by the landlord. He in his said cross-examination admits that Raghunath Kori has two sons. Therefore, it is an admitted position that the tenant of the suit property was said Raghunath Kori and on his death the said tenancy devolved upon the heirs of the said tenant and the landlords have filed eviction suit against the said tenant.

13. The cross-examination of the plaintiff clearly demonstrates that that the possession of the suit property could not be with the plaintiff as on the alleged date of his dispossession from there. The plaintiff when has failed to prove his possession over the suit property is not entitled to recover such possession by taking recourse to the provisions of Section 6 of the Specific Relief Act, 1963. 

IN THE HIGH COURT OF CALCUTTA

C.O. No. 3302 of 2017

Decided On: 19.09.2018

Ramesh Chnd Koiri  Vs.  Chandan Koiri and Ors.

Hon'ble Judges/Coram:

Biswajit Basu, J.

Citation: AIR 2018 Cal 314

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Whether plaintiff can recover possession of property even if suit is filed after expiry of six month?

 It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within 12 years. According to the appellant, except in a suit under Section 9 of the Specific Relief Act, the plaintiff, for succeeding in the suit, has to prove both existing title to the suit property and its possession within 12 years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff v. Mohamed Ghouse, I.L.R.20 IndAp 99 the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant.

10. In Narayana Row v. Dharmachar, ILR. Mad. 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ. held that possession is, under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrong doer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2342 of 1966

Decided On: 16.10.1969

Somnath Burman Vs. Dr. S.P. Raju and Anr.

Hon'ble Judges/Coram:

J.C. Shah and K.S. Hegde, JJ.

Citations: 1970 AIR 846, 1970 SCR (2) 869.

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When possession of one co-owner can not be treated possession of all co-owners?

It is not the case of the respondents/ defendants

pleaded   in   the   written   statement   that   they   were   in   joint
possession of the suit block as co­sharers at any time after
the year 2000 i.e. when the respondent no.2 married with the
respondent   no.1.     There   is  no   such   evidence   led   by  the
defendant that they were in joint possession along with the
plaintiff in respect of the suit block.   On the contrary, it is
admitted in the oral evidence that Dr.Dubey was in actual
possession of the suit block from 10.07.2008 to 31.08.2011
and was paying monthly maintenance charges of Rs.3,500/­
to the plaintiff.  Merely because the property is the joint family
property, it does not follow that for the purposes of Section 6
of  the  Specific  Reliefs  Act,  the  possession   of  one  of  the
co­owner   can   be   treated   as   the   possession   of   all   the
co­owners.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO. 58 OF 2015
Mahesh Zangoji Ghotekar,

...VERSUS...
Prayas Sakhare,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM: R. K. DESHPANDE, J.
DATE    :    18thFEBRUARY, 2016 .
Citation: 2016(4) MHLJ134

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Whether landlord can recover possession of tenanted premises when sub-tenant is in possession of property with consent of tenant?

Since the admitted position in this case is that the petitioner herein came into possession of the suit premises with the consent of the first defendant tenant, the remedy under section 6 of the said Act was not available to the plaintiff as the landlord of the recalcitrant tenant, whatever the plaintiff's other rights may be.

Equivalent Citation: (2015)1CALLT118(HC),AIR2015(NOC)662 Cal

IN THE HIGH COURT OF CALCUTTA

C.O. No. 3100 of 2014

Decided On: 18.11.2014

 Gurdeep Singh
Vs.
Chaturbhuj Pandey and Ors.

Coram:Sanjib Banerjee, J.

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Whether suit of plaintiff for restoration of possession U/S 6 of specific relief Act is maintainable even after passing of six month?

 Possessory title is a good title as against everybody other than the lawful owner. Therefore, in an action of ejectment against a wrong doer, Prior possession of the plaintiff is sufficient title even if the suit was not brought within 6 months of dispossession as required by's. 9 of the Specific Relief Act, 1877. The wrongdoer (trespasser) cannot successfully resist the suit by showing that the title and right to possession are in a third person. 

Supreme Court of India

Somnath Barman vs Dr. S. P. Raju & Anr on 16 October, 1969

Equivalent citations: 1970 AIR 846, 1970 SCR (2) 869

BENCH:
HEGDE, K.S.
SHAH, J.C.

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