Vol. 12 · pages 306–310

285LAW OF SPECIFIC RELIEF 7. Requirements of Section 9. 1. Prove that you were in possession within six months prior to the date of suit. 2. Prove that you were dispossessed without your consent or otherwise than in due course of law. A in possession is dispossessed by B I. a with title “ is “ without title II. a without title “ is “ with title III. a without title “ is “ without title 1. In all three cases A can recover possession if he brings suit under Section 9 i.e. within six months—irrespective of the question of title. 2. If he brings a suit after six months, he must rely on title so that A can recover possession in (i) ——because he has a title. (iii) ——because he has a possessory title. But cannot recover in (ii) because B has title and A has not. Who can maintain a suit under Section 10 1. According to Section 10, only a person entitled to the possession of the suit property can sue. 2. Meaning of “entitled to possession”. 3. Title to possession may arise (i) as a result of ownership or (ii) independently of ownership, as a temporary or special right to present possession 4. Title to possession as a result of ownership. (i) Ownership may be bare legal ownership or it may be legal ownership coupled with beneficial interest. (ii) It is not necessary that a legal owner must have also a beneficial interest in the property to have a right to maintain a suit under Section 10. (iii) This is made explicit in Explanation I, where a trustee is permitted to sue for the possession of the trust property although he has no beneficial interest in it.

286 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 5. Title to possession independently of ownership 1. Title to possession independently of ownership may arise in two ways.— (i) By the act of owner. (ii) Otherwise than by the act of the owner. (I) TITLE TO POSSESSION BY THE ACT OF THE OWNER (i) The owner may by his own act create in another person a right to the possession of the thing which belongs to him as owner. (ii) Illustrations of such a right to possession are to be found in Bailment and lien. (1) Simple bailment cover the cases of.— (i) loan (ii) custody (iii) carriage (iv) agency. (2) Other Bailments. 1. Pawn 2. Hire. 2. Difference between Simple Bailment and other Bailments of Pawn or Hire.— (i) In Simple Bailment the owner (Bailer) has a right to possession and the Bailee has legal possession. The Bailee being entitled to possession can maintain a suit to recover possession. The Bailer having a right to possession can also maintain a suit to recover possession against any person other than a Bailee. (ii) In other Bailments of Pawn or Hire—The Bailer has no right to possession. The right to possession is vested in the Pawnee or Hirer during the continuance of the Bailment and it is only the Bailee (Pawnee or Hirer) who can maintain a suit for the recovery of possession. 3. Lien is an illustration of a right to possession arising out of the act of the owner.— (1) Lien is a right to possession of a thing which arises out of debt due by the owner. (2) The right to possession of the owner is thus temporarily vested in another.

287LAW OF SPECIFIC RELIEF 4. All that is necessary to maintain a suit is a right to present possession.— (i) The right of present possession may arise out of ownership or may not. (ii) Right to present possession may be special or temporary. (II) R IGHT TO POSSESSION OTHERWISE THAN BY THE ACT OF THE OWNER .— (1) The founder of lost goods has a right to possession. (2) It is not the result of the act of the owner. (3) But it is good against all the world except the true owner. II. Against whom can such a suit be maintained 1. A suit under Section 10 can be maintained against any one and can be maintained even against the true owner. 2. All that is necessary is that the Plaintiff must be entitled to possession. Section 11. Moveable Property 1. Q. 1.—Who can maintain a suit under Section 11. A.—The person entitled to immediate possession. 2. Q. 2.—Against whom can such a suit be maintained ? A.—Against any person if he is not owner. The Defendant must not be the owner. If he is, then Section 10 would apply. 3. Q. 3.—In what case will there be specific relief by way of recovery of possession ? A.—(i) Where the person who holds the thing is the agent or trustee of the claimant. (ii) Where compensation for money would not be adequate compensation to the claimant for the loss. (iii) Where it is extermely difficult to ascertain actual damage caused by its loss. (iv) Where the possession of the person is the result of a wrongful transfer from the claimant.

288 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Specific Relief regarding Possession of Property They are dealt with in Sections 8—11. Section 8. Recovery of specific immovable property by a person entitled to the possession thereof. Section 9. Recovery of posssession of specific immovable porperty by a person who is dispossessed. Section 10. Recovery of possession of specific movable property by a person entitled to its possession. (1) By reason of ownership (2) By reason of temporary or special rights (Trustee) Bailment Pawn. Section 11. Recovery of possession of Specific immovable property by a person who is entitled to its immediate possession. This applies when the person having possession is not owner What is meant by possession in Law ? Legal possession is a compound of two ingredients: Corpus and animus domini. Note:— (i) Legal Possession does not involve the element of title or right. Legal Possession is wholly independent of right or title. Legal Possession may be lawful or unlawful. If a possessor acquired his de facto possession by a means of acquisition recognized by the Law (Justis fitulus) he has a lawful possession ; if he did not so acquire it (as in the case of a thief) he has legal possession, but it is an unlawful one. (ii) Legal Possession confers more than a personal right to be protected against wrong-doers : it confers a qualified right to possess, a right in the nature of property, which is valid against every one, who cannot show a prior and better title. There are two elements in legal possession. (i) Corpus, i.e. the physical relation. (ii) Animus, i.e. the mental relation. Corpus or physical relation does not mean physical contact only. It also includes physical contact resumable at pleasure.

289LAW OF SPECIFIC RELIEF The essence of corpus is the power, to exclude others from the use of a thing, i.e. an effective occupation or control according to the nature of the thing possessed. Animus is the intention of exercising such power of dealing with a thing at pleasure and excluding others—animus domini. Three forms of animus The mental attitude of the physical possessor in regard to the object of his possession may assume three degrees.— First.—His intention may be merely to protect the thing. There is no assertion of right—Servant’s possession of masters goods. Second. —Intention to control for certain limited purposes —e.g. tenant—intention to exclude every one except the owner. Thirdly. —Intention amounting to a denial of the right of every other person—This is the real animus domini. Distinction between Possession and Trespass 1. What the plaintiff is to prove in such cases is possession of the disputed property and not mere isolated acts of trespass over that property. He must prove— (i) That he exercised acts which amounted to dominion, the nature of these acts of dominion varies with the nature of the property. (ii) That the act of dominion was exclusive. 2. If the occupation of the plff., as indicated by those acts, has been peaceable and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the plaintiff was in possession. Objects of Section 8 and 9. (i) Section 8 of the Act provides dial the person entitled to the possession of specific immovable property may recover it in the manner prescribed by the C. P. C, i.e., by a suit for ejectment on the basis of title. (ii) Section 9 gives a summary remedy to a person, who has, without his consent been dispossessed of immovable property otherwise than in due course of Law for recovery of possession without establishing title.