Unit - V
Declaratory Decrees [S. 34 & 35 of Specific Relief Act]
Section 34: Discretion of Court to grant declaration of status
or right
Section 34 of the Specific Relief Act, 1963 gives powers to Courts to
pass declaratory decrees.
This section empowers the court to declare the legal rights of the
parties when the rights are disputed by the other party.
It confirms the legal status or entitlement of the parties.
A person can file a suit for declaration when his legal right or status
is threatened or denied.
The court may make a declaration as to right and status.
Exception – Court can refuse to grant declaration when Plaintiff
fails to claim consequential relief in the nature of damages or
specific performance of contract in spite of being entitled to claim it.
Essential Requirements:
Essential requirements to be proved for getting a declaratory relief
under the said section are:
Plaintiff should have title or legal character or right over a
property
Defendant should deny the title or right of the Plaintiff over the
property
Plaintiff’s prayer for declaration should relate to such title or
right which is denied by the Defendant
The discretion while granting a declaratory decree has to be
exercised with due care and caution by the court. This remedy
should only be granted in genuine cases.
Sec. 35 – Effect of Declaration
A declaration is binding only on the
parties to the suit
persons claiming under parties to suit
Provisions relating to Recovery of possession of Movable
and Immovable properties – [Section 5 to 8 of Specific
Relief Act]
Introduction:
Section 5 to 8 of the Specific Relief Act deals with the recovery
of possession of movable and immovable properties.
In order to recover possession of specific movable and
immovable property, the Plaintiff is required to approach Civil
Court by filing a suit in terms of Code of Civil Procedure
Provisions under the Specific Relief Act:
A. Sec. 5 – Recovery of specific immovable property
A person to get possession of a specific immovable property
can recover it as per the Code of Civil Procedure.
As per this section, if a person is entitled to possession of
specific immovable property then his remedy is to file a suit as
per the Code of Civil Procedure.
Example: A and B are brothers. Both of them jointly own lands
and both of them have right over the land. But, only A is in
possession of the land and refuses to give possession to B.
Then, the remedy to B is to file a suit as per Code of Civil
Procedure.
B. Sec. 6 - Suit by person dispossessed (removed) from
immovable property
Essentials of Sec. 6(1)-
A person is dispossessed from immovable property
Without his consent
Without following due course of law
Person can filed a suit to recover possession irrespective of
any claim for title by the opposite party
Plaintiff need not establish/show title in the suit. He must only
show that he is in Possession from a long period of time.
K.K. Verma V. Union of India it was held that – even after
the expiry of rental agreement, if the tenant continues in
possession then he cannot be dispossessed/removed without
getting a decree of eviction from Court.
Objective of Sec. 6
To prevent people from taking law into their hands
To provide quick remedy and relief to the person dispossessed
from property
C. Sec. 7 – Recovery of specific movable property
A person to get possession of a specific movable
property can recover it as per the Code of Civil
Procedure.
As per this section, if a person is entitled to possession
of specific movable property then his remedy is to file
a suit as per the Code of Civil Procedure.
Example: A and B are brothers. Both of them jointly
own certain jewells and both of them have right over
the jewells. But, only A is in possession of the jewells
and refuses to give possession to B. Then, the remedy
to B is to file a suit as per Code of Civil Procedure.
D. Sec. 8 – Liability of person who is not the owner to
give possession to person entitled to it.
Essentials of Sec. 8-
A person has possession or control on a movable
property
He is not the owner of it
He can be compelled to deliver it to the person entitled to
it in the following cases:
(a) When it is held by the Defendant as an agent or
trustee of Plaintiff
(b) Compensation in money in not an adequate
relief
(c)It is difficult to ascertain (find out) the actual damage
or loss caused to the Plaintiff
(d) When possession of the property is taken
wrongfully from the Plaintiff
Reasons for ordering delivery of possession
If the possession is held by a trustee. Then he is liable to return
the property to the owner/beneficiary when is asked to give
possession. He cannot refuse it. Because the trustee holds the
property in fiduciary relationship
It is difficult to know the proper value of movable property.
Hence, when value of the property cannot be determined,
compensation in money will not be adequate relief. In such
cases, Defendant would be directed to return the movable
property to Plaintiff.
Example – A is in possession of an ancient idol of God which
belongs to B. It is difficult to value the said idol in terms of
money. Hence, Court will direct A is liable to handover the idol
to B
When actual damage or loss cannot be ascertain then Courts
direct the Defendant to return the property. For example, in
respect of properties like antique jewellery or old paintings, the
actual loss caused if it is lost or damaged cannot be ascertain.
When Defendant gets property wrongfully from Plaintiff, then
Courts direct the Defendant to return it. This can happen when
Defendant uses fraud, coercion or misrepresentation to get
property from Plaintiff.
Example – A takes jewels belonging to B for the purpose of
marriage. X tells A that he is agent of B and he is sent by B to
collect the jewels. Believing his words, A hands over the jewels
to X, who is not the actual owner of the jewels. Hence, X is
bound to return the jewels as he has obtained it wrongfully
from A.