What are the main points of difference between actions for possession under Sections 5 and 6 of the Specific Relief Act?

The Statutory Text

Section 5 states: "A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908." Section 6 states: "If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit."

The distinctions between the two actions may be examined across several dimensions.

Comparative Analysis

Nature and Character of the Suit

Basis of the Claim

A suit under section 5 may be grounded on three different legal foundations:

·       Title by ownership — the plaintiff proves a legal or equitable title entitling him to possession.

• Possessory title — the plaintiff proves prior peaceable and settled possession, sufficient against all without a better title.

• Prior possession alone — after six months from dispossession have elapsed, the plaintiff may sue on the strength of mere anterior possession; the defendant cannot then resist by proving only that title vests in a third person (Somnath Burman v Dr SP Raju, AIR 1970 SC 846).

A suit under section 6 rests solely on possession and forcible dispossession. The plaintiff need not allege or prove title at all. As the Supreme Court stated in Lallu Yeshwant Singh v Rao Jagdish Singh, AIR 1968 SC 620, the court under section 6 is concerned only with "the restoration of possession to a party dispossessed by another, leaving them to fight out the question of their respective titles if they are so advised".

The Role of Title

The sharpest doctrinal divide between the two provisions lies in the treatment of title. In a section 5 suit, once the period of six months has expired after dispossession, the defendant may raise the question of title, and if he does so, the plaintiff must prove a better right to possession — either through ownership or a superior possessory title — or fail. Under section 6, by contrast, the words "notwithstanding any other title that may be set up in such suit" conclusively exclude title as a defence: even the true owner who has wrongfully dispossessed a peaceful possessor may be made to restore possession. A decree under section 6 decides nothing about title and does not operate as res judicata in a subsequent title suit.

Limitation and the Shift Between the Two Provisions

The six-month limitation in section 6(2)(a) is not merely a procedural bar but a period of limitation governed by section 4 read with section 2(j) of the Limitation Act, 1963, and cannot be condoned: Mohd Mehtab Khan v Khushnuma Ibrahim Khan, AIR 2013 SC 1099, (2013) 9 SCC 221. Once six months expire, the summary relief is lost. However, the plaintiff may still sue under section 5 within 12 years, either on title under Article 65 or on prior possession under Article 64 of the Schedule to the Limitation Act, 1963. The consequence of this transition is important: the same plaintiff who needed no title to succeed under section 6 must, if suing under section 5 beyond six months, now overcome any title set up by the defendant — the defendant's title, which was wholly irrelevant under section 6, becomes a full defence under section 5.

Locus Standi

Section 5 permits suits by any person entitled to possession — owner, lessee, licensee with a grant, mortgagee in possession, purchaser in possession under an agreement, or any person with juridical possession. Section 6, as amended by the Specific Relief (Amendment) Act, 2018, extends standing to: (i) the person directly dispossessed; (ii) any person through whom he has been in possession (such as a landlord through a dispossessed tenant); and (iii) any person claiming through him. This amendment codified the position laid down by the Supreme Court in Sadashiv Shyama Sawant v Anita Anant Sawant, AIR 2010 SC Supp 798, (2010) 3 SCC 385.

Effect of Decree and Finality

A decree under section 5 is a full, appealable decree, operating as res judicata on all issues raised and decided, including title where title was in issue. A decree under section 6 is final in the sense that no appeal and no review lies — section 6(3) — but it decides only the question of possession; a Letters Patent Appeal from an original side High Court decree does lie as held in Sathappan v Andhra Bank Ltd, (2004) 11 SCC 672. Sub-section (4) expressly saves the right to file a subsequent suit establishing title to the property, so the losing party — whether plaintiff or defendant — may convert the question into a full title suit.

Pleading and Proof

In a section 5 suit, where the plaintiff relies on title, the plaint must contain sufficient averments to establish the basis of title; and where the defendant raises a cloud on title, a prayer for declaration of title must accompany the prayer for possession: Anathula Sudhakar v P Buchi Reddy, (2008) 4 SCC 594. In a section 6 suit, where the plaintiff merely alleges previous possession and dispossession within six months, he cannot be put to proof of title: Ganga Din v Gokul Prasad, AIR 1950 All 407. If the plaint is framed as a title suit but the plaintiff fails to establish title, the court cannot grant a decree on the basis of section 6 possessory principles: Nagar Palika, Jind v Jagat Singh, AIR 1995 SC 1377, (1995) 3 SCC 426.

Interplay and Election

The two remedies are available in the alternative, and the plaintiff's election between them has significant consequences. A person dispossessed within six months faces a choice:

·       Section 6: Swift summary relief, no need to prove title, no appeal by the defendant, but the suit must be filed within six months and the decree settles nothing as to title.

• Section 5: Regular plenary suit, title may be adjudicated, twelve-year limitation, full appellate rights for both parties.

A conjoint reading of sub-sections (1) and (4) of section 6 reveals an asymmetry: while a plaintiff who fails in a section 6 suit may file a fresh title suit under section 6(4), a plaintiff who has already litigated the question of title and failed under section 5 cannot thereafter seek the summary relief of section 6.

Current Position

The settled law is that sections 5 and 6 operate as complementary, not competing, provisions. Section 6 provides an immediate, title-blind possessory remedy designed to punish those who take the law into their own hands; section 5 provides the comprehensive remedy that adjudicates both possession and title on the merits. Together, they form a complete code for the recovery of immovable property — the one addressing urgency, the other addressing finality.