any person who has taken forcible possession from him. Even without legal title, the person has a possessory title of his own entitling him to assert his right against wrongful dispossessions.

It is settled legal principle that a possessor of immovable property in undisturbed and long-continued possession has the right to protect his possession against everybody except the true owner. It is also well established that the true owner should seek recourse in law to recover possession. This is by filing a suit through the process provided under the Code of Civil Procedure.

Section 6: Suit by person dispossessed of immovable property

Section 6 of the Specific Relief Act pertains to a suit by a dispossessed party for recovery of immovable property. It states, If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he may, by filing a suit, recover possession thereof.

No suit under this section shall be instituted after Six months from the date of dispossession have expired, against the Government.

No appeal shall lie from any order or decree made in a suit instituted under this section nor shall any review of any decree passed in such suit, be entertained.

For Section 6 to apply, the plaintiff needs to prove that:

-He was in legal possession of the immovable property in question.
-He was dispossessed without his consent and not in due course of law.
-The dispossession has taken place within six months next before the institution of the suit.

Under Section 6, 'possession' implies Jural possession, meaning thereby, that it may exist irrespective of actual possession or rightful origin. In a Section 6 suit, the plaintiff is not obliged to prove title. Long and undisturbed possession would be enough to prove actual possession.

Case: K.K. Verma v. Union of India

In the case the tenancy has expired, the tenant is taken to be in juridical possession and cannot be ejected without a decree for ejectment.

The main objectives of Section 6 is to prevent persons from taking the law into their hands, even though their title may be valid and to afford a cheap and speedy remedy to persons dispossessed of immovable property.

Case Law:

K. Krishna v. A.N. Paramkusha Bai,

In this case a tenant who was forcibly dispossessed by the owner of the property later regained possession by force. The Court held that though the tenant could have immediately filed a suit for repossession on his wrongful ouster, his act of regaining possession by force made him a trespasser and not in lawful possession.

Part B: Recovery of possession of Movable property

Section 7: Recovery of Specific Movable Property

As per section 7 of the act, A person entitled to the possession of specific movable property may recover such property in the manner prescribed by the Code of Criminal Procedure, 1908.

A suit under this section may be instituted by a trustee on behalf of the person entitled to the beneficial interest in movable property.

Even when the plaintiff has only an incomplete or special right to present possession, a suit under this section may be maintained.

Essential Elements:

-The plaintiff should have the title to the movable property. Title may arise either from ownership or by a temporary or special right. Such a right can be evidenced through acts of the property owner, such as bailment or pledge, or through other circumstances such as finder of goods who holds a special right of possession against all but the true owner.

-The action under Section 7 can be maintained only by a person in actual possession of the movable property. A person not in immediate possession cannot file a suit under this section.

-The property must be specific and identifiable. It should be capable of delivery as well as seizure. If, by whatsoever manner, the property has become non-recoverable or is no more under the control of the defendant, the plaintiff shall not be entitled to a recovery decree.

-According to Article 91(b) of the Limitation Act, 1963, a suit for recovery of specific movable property shall be instituted within three years from the date on which the property was wrongly taken or when possession became unlawful.

Section 8: Liability of a Person in Possession Not as Owner

Section 8 of the Specific Relief Act professes liability whereby a person is in possession of any movable property not belonging to him, to deliver it to a person entitled to immediate possession.

It states, any person in possession or control of a particular movable property, of which they are not the owner, may be compelled to specifically deliver it to the person entitled to immediate possession in the following circumstances:

-The property is held by the defendant either as an agent or trustee of the plaintiff.
-Damages would be inadequate to compensate for the loss of the property.
-It is exceptionally difficult to ascertain the actual damage caused by the loss of the property.
-The possession of property has been wrongly transferred from
The court shall presume, unless the contrary is proved, that -
-the compensation in money could not be an adequate relief for the loss; and
-it would be hard to ascertain actual damages caused by the loss.

Section 8 can be applied when the following are satisfied

-The movable property is in possession or control of the defendant.
-The property in dispute must be movable.
-The plaintiff must have a right to immediate possession.
-The defendant should not be the owner of the property.

- Under the section, it shall be necessary for the plaintiff to prove the existence of the fiduciary relation.

- The plaintiff shall have to prove under clause 'd' that a wrongful transfer of possession was done.

Specific Performance of Contracts

Introduction:

The Specific Performance is a remedy under the Specific Relief Act, 1963, which aims at the compelling of a party to perform the contractual obligation. This remedy is resorted to in cases where monetary compensation is inadequate to repair the breach of contract.

Circumstances for Granting Specific Performance:

-Specific performance is usually granted in cases where the contract concern involves the sale of immovable property or other unique items. According to Section 10 of the Specific Relief Act, 1963, SP can be granted in the case of a contract that relates to the sale of immovable property, or it involves the performance of an agreement whose determination cannot be ascertained.

-The contract in question must be legal and valid. The terms of the contract must be specific and unmistakable. The contract must not be determinable, meaning it must not depend on one of the parties' discretion to end unilaterally.

-It should also be established by the party seeking Specific Performance that their performance of the contract is continuing, or at least that they are ready and willing to perform their contractual obligations. It is also necessary to determine whether or not the party seeking acted in good faith or was also partially responsible for the breach of the contract.

-Specific Performance is granted only when the conditions of the contract are mutual and capable of enforcement in a way that is fair and practicable. The court should be able to supervise the performance of the contract effectively.

-The contract should be capable of being performed. Specific Performance will not be granted if the performance of the contract is rendered impossible due to circumstances beyond the control of the parties to the contract.

-An action for Specific Performance must be made within a reasonable time. Any undue delay in filing the suit may result in the court's discretion in refusing to decree, particularly if such delay is unjustified.

Grounds on Which Relief of Specific Performance is Refused:

-Determinable Contracts:

Sec 14 of the Act enumerates contracts where Specific Performance cannot be granted. These include contracts, which by its very nature, are determinant. For example, contracts for personal services are not specifically enforceable.

-Impossibility of performance:

The Specific Performance will not be granted if due to some unavoidable and supervening circumstances, it becomes impossible to carry out the contract performance.

-Unfair or unconscionable terms:

Specific Performance can also be denied if the terms of the contract are found to be unfair or unconscionable. This provision secures the remedy will not lead to unjust or oppressive results.

-Want of Readiness and Willingness:

Specific Performance will be refused where the plaintiff has not shown a readiness and ability to perform their part of the contract. This is so because the requirement ensures that the remedy is not abused by parties that have not acted in good faith.

-Delay:

Undue delay in instituting a suit for Specific Performance, especially when it results in prejudice to the defendant or the situation has changed substantially, may defeat the grant of relief.

-Non-Unique Subject Matter:

In general, specific performance will not be available for a contract of sale of nonunique goods, or where an award of monetary damages would be adequate. As such, simple contracts to sell standard or generic items cannot be enforced through SP.

-Contracts Involving Personal Service:

Contracts that call for personal service or even personal relationships, therefore, cannot fall under Specific Performance. Examples include agreements to provide a service requiring personal skills or relying on trust, which equally are difficult to police or enforce effectively.

Substituted Performance

Introduction:

Substituted performance is an important remedy under Section 20 of the Specific Relief Act, 1963. It would basically refer to an occurrence when specific performance as promised under a contract either becomes impossible or cannot be carried out in that very manner due to inability. The principle of substituted performance thus enables the court to grant such a relief whereby performance, although not strictly according to the contract, nonetheless achieves the substantial purpose intended by the parties. The court has discretionary power to grant specific performance of contract but it is not bound to grant such relief solely because it has power to do so.

Salient Features:

-It empowers the court to permit substituted performance of a contract. The relief may take the form of either actual execution of the contract by a third party or with a different method of performance, provided the main purposes of the contract will be thereby attained. This elasticity within flexibility ensures that even if literal compliance with the contract is impossible, its essence is never defeated.

-The provision for substituted performance is applied to cases where the original terms of the contract become impossible or impracticable to perform. The concept meets the actual fulfillment of the underlying purpose of the agreement, even though some deviations from the original terms of the contract have been made.

-The court may at its discretion order substituted performance, having regard to considerations of equity and the purposes to be achieved by the contract. The court may, at its discretion, allow substituted performance with a view to achieving fairness.

Effect of the 2018 Amendment:

-The Specific Relief Amendment Act, 2018, amongst other sections, made considerable amendments to Section 20 of the Specific Relief Act, 1963, it give statutory recognition to Substituted Performance.

-The amendment in 2018 brought substituted performance under the express provision of Section 20. Substituted performance has, therefore, been accorded a statutory recognition as an express remedy in cases where specific performance of some terms of contract cannot be made by the parties.

-The amendment redefined the scope of specific performance and outlined those conditions under which it may be ordered. Substituted performance is an accepted alternative, the amendment extended the range of remedial choices to parties, thus making contract enforcement more flexible and effective.

-It states that party not in default must give a notice of at least 30 days to the defaulting party. Also, according to Sub-section, in cases where a party has suffered a breach, is entitled to an amount in respect of expenses and cost only when the contract was performed through an agent or by his servant.

-Sub-section (3) of Section 20 thus gives a fair deal to the defaulting party that if substituted performance is opted for, then the aggrieved party shall not be entitled to specific performance against the defaulting party. This is analogous to Section 41 of the Indian Contract Act, 1882, which has a similar effect in disentitling the promisee from demanding the performance of a promise against the promisor if he has accepted performance of the promise from a third party.

-It also provides that Section 20 does not exclude the injured party's right to claim damages against the defaulting party. With the introduction of the 'substituted performance' remedy, the Amendment Act undertakes to reinstate the innocent party into the position it would have found itself in had the contract been fulfilled as contracted.

-The amendment thus provided more flexibility by recognizing that for one reason or another, it may not be practical or feasible to adhere to the exact terms of a contract.

-Substituted performance seeks to offer an equitable remedy in cases where original performance is impossible, with a view to continuing benefit to the parties as intended under the contract.

Substituted performance, in a nutshell, is a formal legal explanation wherein the party entitled, against whom this can be claimed, defenses available, and compensation, as provided under the Specific Relief Act, 1963.

Eligibility to Claim the Remedy:

-Contractual Party:

Substituted performance may be sought by the original party to the contract, either the promisee or a third-party beneficiary who is entitled to the benefit of the contract. A party seeking substituted performance must be able to show that it has become impracticable or impossible to perform the contract specifically in terms of its original agreement.

-Performance by Third Parties:

When the original promisor is unable to execute their contractual duties, the injured party can request permission from the court to allow a third party to execute the contract on behalf of the promisor, thereby achieving the results expected from the contract.

Parties Against Whom the Remedy Can Be Claimed:

-Original Promisor:

Usually, the remedy is sought against the original promisor, i.e., the party originally undertaking the contract but failing to carry out his part of the performance of the contract.

-Alternative Performer:

Sometimes in situations where the original promisor cannot perform, the court may be asked to allow performance by another party able to accomplish the purposes of the contract.

Defences Available to the Defendant:

Under Section 9 of the Specific Relief Act, 1963, the following are the various defences that may be raised by the defendant in a suit for specific performance:

-Contractual Impossibility:

The defendant can argue that the performance of the contract has become impossible due to some unforeseen events or conditions beyond his control and thereby question the feasibility of the specific performance.

-Lack of Mutuality:

The defendant may argue that the contract is not mutual or that the claimant cannot perform his part of the agreement; hence, specific performance will not be available.

-Insufficient Remedy:

The defendant may say that specific performance is not an adequate remedy for the claimant's case and that damages or some other relief will be more adequate.

-Void or Voidable Contract:

Where the contract is void or voidable on the grounds of misrepresentation, fraud, or absence of real consent, the defendant may show such defects barred specific performance.

Compensation in Addition to Specific Relief:

1) Section 21: Power to Award Compensation in Certain Cases

-Compensation for breach of contract, under Section 21, both as an alternative and in addition to specific performance, plaintiffs may seek. Damages may be awarded where specific performance is refused or where specific performance is not sufficient to carry out the justice when it is granted. The calculation of compensation is covered under Section 73 of the Indian Contract Act, 1872.

- In an action for specific performance of a contract, the plaintiff may claim damages for the breach of the contract either in addition to or in lieu of the specific performance.

-If the court decides against granting specific performance but is of the view that indeed there has been a breach of contract by the defendant, it shall award compensation to the plaintiff on account of such a breach accordingly

-If the court believes that the defendant ought to perform the contract specifically but that he is not bound to do so in the particular manner prayed for by the plaintiff, and that it would not be just to compensate the plaintiff by awarding him money damages for the breach, the court may direct the specific performance in such modified manner as may, under the circumstances of the particular case, appear just.

-In assessing the amount of compensation, the court shall follow the provisions contained in Section 73 of the Indian Contract Act, 1872.

-The power of awarding compensation under this section does not affect, and is without prejudice to, the right of theCourt to award compensating under or otherwise, damages, either in addition to, or in substitution for, specific performance of a contract.

2) Section 22: Power to Grant Relief for Possession, Partition, Refund of Earnest Money, etc.

-The plaintiff, under Section 22, may claim further relief for possession or refund of earnest money in suits for specific performance of immovable property. Relief must be expressly claimed but at any stage can be added to the plaint.

-A plaintiff may seek a relief alongside the specific performance of a contract for transfer of immovable property for Possession, partition or separate possession of the property, or for refund of earnest money or deposit paid, in case the application for specific performance is refused.

-If the plaintiff does not claim any such relief initially, the court shall, at any stage of the suit, allow the plaintiff to amend the plaint on the same.

-The relief provided is in addition to and not in derogation of the court's power to award damages under Section 21.

3) Section 23: Liquidation of Damages Not a Bar to Specific Performance

-Section 23 explains that a contract can be specifically enforceable even though it contains a stipulated sum in damages for its breach, if the sum represents liquidated damages and not a penalty. A court will not order any amount named in lieu of performance if specific performance is awarded.

-Where a contract is otherwise suitable for specific performance, the simple stipulation of a sum to be paid in case of breach will not preclude specific performance if it appears that the sum named was merely intended as a security for performance and not as an option either party at his choice.

-When ordering specific performance under this section, the court shall not also award the sum specified in the contract for breach.