Vol. 12 · pages 311–315

290 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Section 9. This Section deals with the subject of unlawful dispossession, and gives to the person dispossessed the alternative of two remedies.— (i) He may simply prove the fact of his unlawful dispossession, in a suit instituted by him within six months thereof, recover possession of the property. The question of his title to the property is quite immaterial. (ii) He may recover possession by relying on his title in a suit brought by him for that purpose. Here his success depends upon his proof of title. The former remedy is called remedy by way of a possessory suit and is enacted in Section 9. The latter is the ordinary remedy of a suit based on title and is embodied in Section 8. Nature and object of Section 9. (i) To prevent people from taking the law into their own hands, however good their title may be. (ii) To prevent the shifting of the burden of proof owing to dispossession—Possession being prima facie evidence of title. Anterior possession per se constitutes a perfect title to property as between the dispossessed and the dispossessor, in a suit under Section 9, i.e. within six months of the dispossession. Question.—What is the effect of anterior possession in a suit for possession by a person, who is dispossessed after 6 months have elapsed and a suit under Section 9 is barred ? The following propositions have been judicially established :— (i) Possession for a period of sixty years and upwards is sufficient to create a title in the possessor which no one can question.—8 D.R. 386. (ii) Adverse possession for 12 years under article 142 is itself title even against the rightful owner himself. Consequently, where in a suit for possession, a plea of adverse possession during the prescribed period of limitation is set up by the Defdt. the question of limitation becomes a question of title, and the Piff. must furnish prima facie proof of subsisting title at the date of his suit, before the Defdt. is required to establish his adverse possession.

291LAW OF SPECIFIC RELIEF (iii) Prior possession, however short, is itself a title against a mere wrong-doer and a bare plea of anterior possession, and dispossession, is in fact a good ground for recovery of possession, (1) Where the dispossessor can prove no title, or (2) Where neither party can prove a title. Statement of the Position A is B in Possession dispossessed by (a) with title (b) without title (a) without title (b) with title I. Suit brought within 6 months.— (a) and (a) A can recover possession under Section 9 irrespective of title.(b) and (b) (b) and (a) II. In a suit brought after six months.— (a) and (a) A can recover, because the title is in A. (b) and (b) A cannot recover, because the title is in B. (b) and (a) A can recover, because of A’s anterior possession. Entitled to Possession A right to possession exists either.— (i) as a part of ownership or (ii) independently of ownership, as a temporary or special right. These special rights arise either.— (i) by the act of the owner or, (ii) otherwise than by the act of the owner.

292 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES I. By act of the owner (1) Bailment and (2) Lien Bailment is (1) simple and (2) special of Pawn and Hire (i) Simple Bailments e.g. loan, custody, carriage and agency. In simple Bailments, the Bailor has a right to Possession and the Bailee has legal possession. A is Bailor and B is Bailee. Both can recover possession against C. A can recover possession as against B. (ii) Special Bailment.— Pawn and Hire Bailor has no right to possession during the continuance of the bailment and he only can recover possession. Lien. Arises out of debt—the Vendor having the right to possession of the thing sold, until the purchaser has paid the purchase money. II. Right to possession otherwise than by act of owner Finder of lost goods—entitled to possession as against all the world except the owner.

293LAW OF SPECIFIC RELIEF PART II DIVISION II Performance of Contract Specific Performance of a Contract is “its actual execution according to its stipulations and terms; and is contrasted with damages or compensation for the non-execution of the contract. It is a species of Specific Relief, afforded by ordering a party to do the very act which he is under an obligation excontractor to do. Specific Performance of a Contract Sections 12 and 21 deal with Specific Performance of a Contract. Section 21.—Defines contracts which cannot be specifically enforced. Section 12. —Defines contracts which may be specifically enforced. Section 21. —There are eight sorts of contracts which are not specifically enforceable.— (i) Contracts for the non-performance of which money compensation is an adequate relief. (ii) Contracts (i) running into minute details. (ii) dependent on personal qualifications or volition of parties. (iii) is such that Court cannot enforce Specific Performance of its material terms. (iii) Contracts the terms of which the Court cannot find with reasonable certainty—e.g. necessary appliances. (iv) Contracts which in its nature is revocable e.g. Partnership without duration. (v) Contracts by trustees in excess of their powers, or in breach of their trust.

294 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (vi) Contracts by company in excess of its powers. (vii) Contracts the performance of which involves the performance of a continuous duty extending over a longer period than 3 years from its date. (viii) Contracts material part of the subject-matter supposed by both to exist has ceased to exist. (ix) Contracts to refer a controversy to arbitration. Note. Practically Specific Performance because no right of suit is given. Specific Performance of Contracts Section 12 1. There are four cases in which Specific Performance may be enforced. (i) Where act promised is in performance of a trust. (ii) Where there is no standard to ascertain actual damage. (iii) Damages, no adequate relief. (iv) Compensation for non-performance cannot be got. Contract The first question to be determined by the Court in a suit for Specific Performance of an agreement is, whether the agreement in question is a contract or not. Section 4 (a) — right to relief unless agreement is a contract. The following agreements are not contracts because they are not enforceable and are therefore excluded:— (i) Incomplete agreements—Parties not gone beyond the stage of negotiations; (ii) Agreements which are void. (iii) Contingent agreement—until the contingency has applied . . . should be “arisen”. Voidable contracts are not excluded. There must always be a contract before the Court which has been unperformed. Mutuality—The remedy by way of specific performance is mutual, i.e., the vendor may bring his action in all cases where the purchaser can be sure for specific performance.