The Bombay High Court has reaffirmed that a suit under Section 6 of the Specific Relief Act, 1963, is not a vehicle for general equity but a narrowly tailored summary remedy requiring precise proof of possession on the very date of alleged dispossession. Failure to establish this foundational fact renders the suit unsustainable, regardless of prior occupancy or moral claims.
Background & Facts
The Dispute
The dispute centers on possession of residential and dispensary premises at Kannamwar Nagar, Vikhroli, Mumbai. Plaintiff No. 1, a qualified Ayurvedic physician, purchased the property in 1972 - 73 but registered it in the name of his brother, Defendant Deoram Gawande, under a family arrangement. The Plaintiffs claimed continuous use of the premises for medical practice by Plaintiff No. 1, his son (Plaintiff No. 2), and daughter-in-law (Plaintiff No. 3).
Procedural History
- 2009: Defendant filed L.E. Suit No. 177/2009 in the Small Causes Court seeking possession from Plaintiffs.
- February 2010: Defendant amended the L.E. Suit to implead Cosmos Prime Projects Ltd., alleging the developer had trespassed and occupied the premises.
- October 2011: Defendant claimed he found the premises unlocked and unoccupied, and installed his own lock.
- November 2011: Plaintiffs alleged forcible dispossession on 28 November 2011, after which they filed a criminal complaint and later a writ petition.
- April 2012: Plaintiffs filed S.C. Suit No. 3192/2012 under Section 6 of the Specific Relief Act seeking restoration of possession.
- December 2022: City Civil Court decreed the suit in favor of Plaintiffs, ordering restoration and restraint against Defendant’s heirs.
- January 2023: Bombay High Court stayed the decree pending revision.
Relief Sought
The Plaintiffs sought immediate restoration of possession under Section 6 of the Specific Relief Act, without proving title, on the ground of forcible dispossession on 28 November 2011. The Defendant’s heirs contended that Plaintiffs had abandoned possession long before, and Cosmos had been in actual occupation.
The Legal Issue
The central question was whether the Trial Court correctly held that Section 6 of the Specific Relief Act entitles a plaintiff to restoration of possession based on historical use, or whether the law requires conclusive proof of settled possession on the precise date of alleged dispossession.
Arguments Presented
For the Appellant/Petitioner
The Appellants argued that the Trial Court ignored critical evidence: (1) Defendant’s 2010 amendment to the L.E. Suit impleading Cosmos as trespasser; (2) Defendant’s testimony that the premises were unlocked and unoccupied on 3 October 2011; (3) absence of any witness who personally observed Plaintiffs in possession on 28 November 2011. They contended that the Trial Court conflated past permission with present possession, violating the summary nature of Section 6. Reliance was placed on ITC Ltd. v. Adarsh Coop. Housing Society and Jayashree Jaisingh Babar v. Shirish Ramdas Sarode to emphasize that possession must be proven on the date of dispossession.
For the Respondent/State
The Respondents argued that Plaintiffs had been in continuous possession for decades, and Defendant’s act of breaking the lock constituted unlawful dispossession. They relied on oral testimony of eight witnesses who attested to Plaintiffs’ medical practice at the premises. They contended that Defendant’s admission in the L.E. Suit that Plaintiffs were gratuitous licensees established prior possession, which should suffice under Section 6.
The Court's Analysis
The Court undertook a rigorous doctrinal review of Section 6 of the Specific Relief Act, emphasizing its summary, exceptional nature. It reiterated that Section 6 does not adjudicate title, nor does it presume possession from past conduct. The three essential ingredients are: (i) plaintiff’s possession on the date of dispossession; (ii) dispossession without consent or due process; and (iii) suit filed within six months.
"The remedy under Section 6 is special and summary, and is different from the ordinary remedy of filing suit for recovery of possession, on account of four factors viz.-(i) Plaintiff need not prove his title or right to occupy the property..."
The Court found the Trial Court’s finding that "possession of the plaintiffs and then the possession of the deceased defendant is not in dispute" to be patently perverse. The Defendant never admitted possession on 28 November 2011; he claimed Cosmos had occupied the premises since 2009 - 10. The Trial Court’s reliance on the 2009 L.E. Suit as proof of possession on 2011 was legally flawed.
The Court noted that none of the eight witnesses examined by Plaintiffs testified to seeing them in possession on or around 28 November 2011. Most deposed only to hearsay knowledge of the lock-breaking on 29 November. The Court held that settled possession cannot be inferred from circumstantial or historical evidence alone.
The Court further observed that Defendant’s 2010 amendment to implead Cosmos was not a fabricated defense but a contemporaneous legal step taken 19 months before the alleged dispossession. This rendered the Plaintiffs’ claim of possession on 28 November 2011 inherently improbable. The burden of proving possession under Section 6 is on the plaintiff, and it must be met with credible, direct evidence.
The Verdict
The Appellants won. The Bombay High Court set aside the Trial Court’s decree and dismissed the suit. The Court held that Section 6 of the Specific Relief Act requires proof of possession on the exact date of dispossession, and the Plaintiffs failed to discharge this burden. The remedy under Section 6 is not available where possession is unproven on the critical date.
What This Means For Similar Cases
Possession Must Be Proven on the Exact Date
- Practitioners must identify and lead direct evidence - witnesses, documents, photographs - establishing possession on the precise date of dispossession.
- Hearsay, historical use, or prior licensees are insufficient. The burden is strict and non-negotiable.
Amendments in Prior Suits Are Critical Evidence
- If a defendant has previously impleaded a third party as possessor, this directly undermines the plaintiff’s claim of possession on the date of dispossession.
- Courts will treat such amendments as contemporaneous, credible indicators of actual occupancy.
Summary Remedies Cannot Substitute Title Suits
- A failed Section 6 suit does not bar a subsequent title-based recovery suit.
- Lawyers must advise clients to file Section 6 suits only when possession on the critical date is demonstrable; otherwise, a substantive suit for recovery of possession under Section 9 of the Specific Relief Act is the proper remedy.
