Possession

1. Introduction:-

Possession is the most basic relation between man and things.

Possession is a prima facie evidence of ownership and it is also one of the
modes of transferring ownership. Possession is said to be nine out of ten points
of law meaning thereby that is an evidence of ownership and he who interferes
with the possession of another, must show either title or better possessory right.
e.g. a thief, A, who steals a watch from B has a possession which the law will
protect against everyone except B.

2. Possession under Roman law:-

Under Roman law, the concept of possession was used in

two different senses. This difference is made on the basis of simple possession
and legal possession.

(a) Corpus possessionis:- when person simply has physical control over the
thing, it is called corpus possessionis or physical possession. In this case,
the person having only corpus possession and there is no animus, i.e.
mental element to hold possession and exclude others from interference
in his possession.
(b) Civilis possessionis:-when person having exclusive control over a thing,
it is called civilis possessionis, or legal possession. In this possession,
both elements corpus and animus exists. The person is in physical control
of the thing and also had the power to exclude others from interference in
his possession.

3. Possession under English Law:-

The importance of possession has equally been
recognised in English law. The term is used both in civil and criminal
law.
In civil law, namely, the law of torts, contract, property etc. may wrongs
are defined in terms of possession.
e.g. trespass is a wrong relating to possession of land.
In criminal law, theft is dishonestly taking away any movable property
out of possession of any person without that person’s consent.
4. Possession under Indian Law:-
In ancient Indian law, title to land depended on personal possession of it.
Katyayan speaks of two kinds of possession, namely, (a) possession with
title; (b) possession without title.
Yajnavalkaya Smriti contains a reference to the right of prescription
wherein if a person having in possession of property of another person
uninterruptedly for a continuous period of 20 years and the real owner
raises no objection to it, then he shall lose his ownership over that
property.
Consequent to the introduction of common law in India during the British
colonial rule, corpus and animus came to be recognised as essential
elements of possession.
The right of possession has been protected under Section 145 of the
Cr.P.C. 1973, which provides as under:-
Section 145(1): whenever an Executive Magistrate is satisfied from report
of a police officer or upon information that a dispute likely to cause a
breach of peace exists concerning any land or water or the boundaries
thereof within his local jurisdiction, he shall require the parties concerned
in such dispute to attend his court and put in writing their respective
claims regarding the fact of actual possession of the subject of dispute.
In the case of Puran Singh v. State of Punjab (1975 SC) and reiterated
in Ram Ratan v. State of U.P. (1977 SC), held that where a trespasser
has continuous, absolute and settled possession over another’s land, he
can’t be ejected without the recourse to due procedure of law and he is
entitled to retain possession even against the rightful owner unless the
latter proves a better title over the land.

5. Definitions of term ‘Possession’:-

Jurists have defined possession according to their own
notions. Some of the definitions are as follows:-
(i) Salmond, “the possession of a material object is the continuing
exercise of a claim to the exclusive use of it”.
Thus, according to Salmond, possession involves two things:-
(a) Claim of exclusive user; (this is mental element and called
animus posssessionis).
(b) Conscious or actual exercise of this claim. (this is physical
element and called corpus possidendi).

(ii) Pollock defined possession as having physical control over a thing

constitutes possession. He said that in common parlance, a man is
said to possess or to be in possession of anything of which he has
the apparent control or from the use of which he has the apparent
power of excluding other.
(iii) Savigny says that the essence of corporeal possession is to be
found in the physical power of exclusion. The first is corpus, i.e.
physical power to possess a thing for the first time. The second is,
after acquiring the thing, the power to retain it to the exclusion of
others.

6. Elements or characteristics of possession:-

(i) According to Holland, legal possession has two essential elements:-

(a) corpus; (physical control) (b) animus (which means intention to
exclude others from interference).
(ii) According to Savigny, the essential elements of possession are:-
(a) Corpus possessionis; which means effective control over the thing to
the exclusion of others.
(b) Animus domini; which means intention to hold the thing as an owner
of it.
(iii) According to Salmond, “Possession consists of corpus possessionis
and animus possidendi.”
(iv) Henry Maine pointed out that in early stages of development of law,
physical possession must have been deemed necessary to constitute
legal possession but in actual practice, possession does not mean mere
physical control but the intention to possess a thing to the exclusion of
others is also equally important.
(v) Justice Holmes of USA after analysing the different theories of
possession concluded that both corpus (it is the physical or objective
element) and animus (it is the mental or subjective element) are the
essential for legal possession.

Corpus Possessionis Animus Possidendi /Domini

It is the physical element. It is the mental element in possession.
Possession implies the relation It is the intention of the possessor to
between the thing and the exclusive use and enjoyment of the
person. Hence corpus implies thing possessed and to exclude others
physical control over the thing. from interference.
It has the following characteristics:- It has following characteristics:-
(a) Power to use and to hold:- (a) Intention to possess:-
It is the power to There must be
use the thing possessed and intention to exclude others from
existence of the assumption that possession.
the others will not interfere with (i) This exclusion need not
possessor’s right to use and be absolute. E.g. a person
enjoyment of that thing. shall still be deemed to be
(b) Continuous control not in legal possession of land
necessary:- notwithstanding the fact
To possess a thing it is not that some other person or
necessary that one must be able public at large, may
to exercise a continuous control possess a right of way
over the thing. What is over that land.
important is that one must be (ii) Animus need not be
able to resume control whenever specific. It may be
he wants. general. E.g. a person
(c) Extent of Power:- who has caught fishes in
Whether physical his net has possession
control is sufficient enough to over all of them although
be regarded as possession he does not know their
depends on various factors. exact number.
Thus, extent of power is a (iii) Animus need not be
deciding factor. Higher the necessarily be rightful. It
degree of control, stronger the may be wrongful. E.g. A
proof of its possession. thief has a possession of
e.g. complete absence of power stolen goods no less real
means absolutely no possession. than the true owner of
Possession of small objects those things.
would be in holding it. Even (iv) Animus need not be
immovable property like a necessarily that of
house can be possessed while possessor himself. E.g. a
miles away from the house. servant, agent, trustee or
(d) Power of excluding others:- bailee does not keep
When there is absence things in possession for
of actual control, it must be find his own use but holds
out whether there is power and them for some other
ability to exclude others. person.

7. Theories of Possession:-
Various jurists have developed their theories of
possession on the basis of analysis of the concepts of possession in fact
and possession in law.
(i) Savigny’s Theory of Possession:-
Savigny founded his theory of possession
of the text of Roman jurist Paul and emphasised that possession has
two basic elements, namely, (a) corpus possessionis, and (b)
animus domini.
By corpus, he meant effective physical control of the thing, that is,
immediate physical power to exclude others from interference.
By animus, he meant mental conscious or intention to hold the
object or thing as owner against all others.
Savigny asserted that there can be no possession without animus,
i.e. mental element.

(ii) Ihering’s Theory of Possession:-

Ihering’s theory of possession appears to be more
practical and realistic. He adopted sociological approach in order to
explain the concept of possession.
According to Ihering, whenever a person looked like an owner in
relation to a thing, he had possession of it, unless possession was
denied to him by rules of law. The element of animus was
therefore, merely an intelligent consciousness of the fact of
possession. Thus, he didn’t insist on presence of animus as an
element of possession. He considered animus only as a
supplementary element of possession

(iii) Kant’s Theory of Possession:-

According to Emanuel Kant, men are born free and
equal. Freedom of will is the essence of man. Possession is the
embodiment of the will of a man. By taking possession of a thing,
a man incorporates his will. Thus, it can be said that the will of an
individual is exhibited in possession and it need to be respected.

(iv) Holland’s theory of Possession:-

Holland’s theory of possession is founded on
preservation of peace in society. According to him, the law
provides protection to the possession only because it concerns with
preservation of peace. Possession connotes respect for rightful
claim of a person.

8. Kinds of Possession:-
Possession may be of different kinds. Examples are as
follows:-
(i) Corporeal and Incorporeal Possession:-
Corporeal possession Incorporeal Possession
(a) Possession of material (a) Possession of immaterial
objects/things like land, or intangible things
house, building and (things which we can’t
movables like books etc. see, tough or perceive) is
is corporeal possession. called incorporeal
(b) Actual use of thing or possession. E.g. right of
object is not necessary in way or right to light,
case of corporeal copyright, trademark,
possession. What is more right to reputation.
necessary is the existence (b) In case of incorporeal
of the legal right to possession, actual use and
exercise exclusive control enjoyment is deemed as
over corporeal thing. e.g. an essential condition
a person may keep his because possession is
watch locked in a safe for visible only when it is
several years without actually used or enjoyed
using it, he would over an incorporeal thing
nevertheless be deemed to and non user may give
be in possession of it as h rise to the extinction of
he has the right to the right of incorporeal
exclusive control over it. possession.
(c) Corporeal possession is (c) Incorporeal possession is
called the possession of a called as the possession of
thing. a right.

(ii) Mediate and Immediate Possession:- (this distinction is only

recognised under the German law and the English law does not
recognise the distinction as under English law a servant or agent
does not have possession over the thing, but only have custody of
it).
Mediate Possession/Indirect Immediate Possession/Direct
Possession. Possession
(a) Mediate possession is (a) Immediate Possession is
the possession of a thing the possession of a thing
which is acquired which is acquired or
through another person. retained directly or
It is also called indirect personally. It is also
possession. e.g. if I ask called direct possession.
my friend or servant to e.g. if I purchase a book
buy a book for me, I myself, I have immediate
acquire mediate possession of it.
possession over the book (b) In case of immediate
through him. Once he possession the thing is
hands it to me my possessed by only one
possession becomes person at a time.
immediate.
(b) In case of mediate
possession two persons
have the possession of
the same thing at the
same time. E.g. the thing
or object is possessed by
the agent or servant
(having immediate
possession) for another
person, i.e. landlord,
master etc. (having
mediate possession) at
the same time.
(iii) Concurrent Possession or Duplicate Possession:-
Concurrent possession:-
(a) General Rule of Law:- It was the maxim of English civil
law that two person can’t be in possession of the same
thing at the same time. It is provided in the maxim “plures
eandem rem in solidum possidere non possunt”.
This principle is based on the thought that exclusiveness is
the essence of possession because two adverse claims of
exclusive use are not capable of effectual realisation.
Exception:-
There are certain claims which are not adverse or
are not destructive to each other can be held by two persons
at the same time.
e.g.
(a) mediate and immediate possession can co-exist in two
persons at the same time.
(b) two or more person may possess a thing in common just
as in the case of co-ownership.
(c) corporeal and incorporeal possession may co-exist. E.g.
B has a right of way over the land of A. In this case, A’s
possession is corporeal and B’s possession is incorporeal.

(iv) Constructive Possession:-

Constructive Possession:-
It means having power and intention of retaining
control over property but without actual control or actual presence
over it.
e.g. the delivery of keys of a building or a warehouse may give rise
to constructive possession.

(v) Adverse Possession:-

Adverse Possession:-
It implies the possession by a person initially holding the
land on behalf of some other person and subsequently setting up
his own claim as a true owner of land.
This rule of adverse possession provides that if any adverse
possession continues peacefully and undisturbed for a prescribed
period (12 years in India), the title of the true owner is extinguished
and the person is adverse possession becomes the true owner of
land.
The 3 elements are necessary for establishing the adverse
possession, i.e.
(a) Continuity;
(b) Adequate publicity; and
(c) Peaceful and undisputed possession for a prescribed period.

(vi) De-facto Possession and De-jure Possession:-

Possession in Fact/De-facto Possession in Law/ De-jure

possession (de facto is a Latin possession (de jure is a Latin
term which means- ‘in fact’ or term which means –‘by law’
‘as a matter of fact’. or according to the law.

The actual physical possession of It is called position in the eyes

the property. of law.
The relation of a person and a
thing which he possesses is
called possession in fact or de-
facto possession. It indicates
physical control over a thing.
e.g. if a person has caged a
parrot, he would be deemed to
have possession of it till he set
the parrot free.
Some important point on
possession in fact:-
(a) There are certain things
over which a person can’t
have physical control. e.g.
the sun, the moon, etc.
(b) The physical control over
the object need not be
continuous. But one
should be in a position to
resume the possession
over it whenever one
desires. E.g. I possess my
coat when I am wearing it,
but I still have possession
of it when I take it off and
hang it.
(c) In order to constitute
possession in fact,
physical control must be
accompanied by capacity
to exclude others from the
possession of it.

9. Modes of Acquisition of Possession:-

The different modes of acquisition of the possession may
be summarised in a tabular form as follows:-
There are 3 known mode of acquiring possession which are as
follows:-
(a) By taking;
(b) By delivery; and
(c) By operation of law.

(a) By Taking:-
Taking is the acquisition of possession without the consent
of the previous owner. However, it is not necessary for taking that the
thing taken in possession must necessarily be in possession of any
previous owner. For example, res nullius (a thing belonging to no one)
has no previous owner.
Taking may be original or derivative.
Original taking: the taking is original when the object taken has no
owner (res nullius). E.g. when a person catches a wild animal or bird
etc.
Derivative taking:- when the possession of a thing which already has
a previous owner is taken, it is called derivative taking. This derivative
taking may be rightful or wrongful. E.g. when the shopkeeper to
whom watch has given for repair and the person doesn’t pay the bill
for repair, then he can keep the possession of the watch till the
payment is made, tt is rightful taking the possession. But when the
person paid the repair bill but the shopkeeper does not give the
possession of watch to the rightful owner, it is taking the possession
wrongfully.

(b) By Delivery:-
When the person acquires the possession of a thing
with the consent or co-operation of the previous owner, it is known as
acquisition of possession by delivery.
Delivery is of two kinds: actual and constructive.
Actual Delivery Constructive Delivery
Actual delivery is the transfer of In case of constructive delivery,
immediate possession. It is the goods or things are not physically
transfer of a thing or object transferred. It is the intention
physically from one possessor to (animus of the persons concerned)
another. It involves immediate which is essential.
transfer of possession. E.g. sale, Constructive delivery is of 3
delivery of the keys of the house kinds:-
is delivery of the house itself (a) Traditio Brevi Manu(there is
because it gives access to the no equivalent term of this in
house. English law so the same
term has been adopted) :-
The
surrender (transfer) of
mediate possession was
called ‘traditio brevi manu’
in Roman law. In this, there
is surrender of the mediate
possession to one who is
already in immediate
possession of it. E.g. if a
person gives his watch to a
watch-maker for repair and
subsequently sells it to him,
there is surrender of mediate
possession to the watch-
maker who already has
immediate possession of the
watch.
(b) Constitutum Possessorium:-
This is
just the opposite of traditio
brevi manu, that is, in this
there is surrender (transfer)
of mediate possession while
the immediate possessioin
remains with the transferor.
E.g. a warehouseman
(suppose A) is in control of
100 bags of cement which
belongs to him. If I purchase
those 100 bags of cement
from him and asks him to
have continue possession of
those bags on by behalf and
he agrees to hold them then
this is the case of
constitutum possessorium.
(c) Attornment:-
In this type of
constructive delivery, there
is transfer of mediate
possession while immediate
possession is in the hands of
a third person. E.g. if in the
above example, if I sell those
100 bags of cement which
are in the warehouse of A to
another person (suppose B),
then in this case I have
actually delivered the
cement to B as soon as A has
agreed to hold them for B
and longer for me.

(c) By Operation of Law:-

Possession may also be obtained by operation of law.
The possession of a thing can be obtained by operation of law in two
ways:-
By Inheritance By Prescription
e.g. if a person dies, the When a property is in the adverse
possession of his property is possession of any person,
transferred to his successors and continuously, uninterrupted and
legal heir. for a period of 12 years, then it
extinguishes the title of the true
owner and the person in adverse
possession becomes the owner.
This effect of lapse of time on title
is called ‘prescription’.

[Link] Remedies
The legal remedies which exist for the protection of
possession are known as possessory remedies. Possession operates as a
temporary title even against the true owner. Even a true owner can’t
throw out the wrongful possessor by using force. He has to take recourse
to legal measures for recovery. Before studying the possessory remedies,
it is essential to study why possession is protected by the law.
Why possession is protected by law? Or why law protects Possession?
Salmond attributes three main
reasons for extending provisional protection to possession under the law.
They are:-
(i) It seeks to prevent the evils of violent self-help. He who tries to
restore his possession by violence and excessive use of force
commits an offence in the eyes of law.
(ii) Another reason for giving provisional protection to possession is
that the possession is considered the nine points of law so it is
necessary that in case of dispute regarding the ownership, the
possession of the property must be given to the person who had it
first. It is only then the law shall decide the ownership of the thing.
(iii) Another reason for giving provisional protection to possession is to
be found in the difficulty of the proof of ownership. It is far more
easy to prove one’s possession than his ownership. Since
possession is prima facie evidence of ownership, the law presumes
that continuous possession for a long time entitles the possessor to
claim the right of ownership.
The principle as incorporated in section 110 of the Indian Evidence
Act, makes it clear that possession being the prima facie evidence
of ownership. Continuous long possession is deemed sufficient to
confer ownership to the person in possession. In other words, the
person in possession of a thing is deemed to be the owner of it
unless someone else proves a better title (ownership) than him.
Another Reaons:-
(iv) Possession provides possessory remedies which protects the right
of the person in possession. E.g. in case of long adverse possession,
where law confers title even to property of another person.
(v) Possession is considered as one of the essential conditions for
acquiring ownership.
(vi) Transfer of possession is one of the modes of transferring
ownership.
(vii) The possession over rus nullies, (things belongs to no one) confers
a good title of right over that thing.

Possessory Remedies:-
Sections 5, 6,7 and 8 of the Specific Relief Act, 1963 deal
with possessory remedies.
(a) A person entitled to possession of specific immovable property may
recover it in the manner provided by section 5 of CPC, 1908.
(b) Under section 6 of SRA, if a person in possession of immovable
property whatever be his title, is ousted illegally from his possession
without his consent is entitled to recover back his possession,
provided:-
(i) He must institute the suit within 6 months of his dispossession.
(ii) No such suit can be instituted against the Government.

Further, any other person can establish his title to such property and
recover the possession under Section 6 of SRA.

(c) Under section 7, a person entitled to the possession of specific

movable property can recover the same in the manner provided under
CPC, 1908.
(d) If a person has possession of a movable property and he is not the
owner of it he can be compelled to specifically deliver it to the person
who is entitled to the immediate possession of it under section 8.

[Link] between Possession and Ownership

Possession has been treated as an external evidence
of ownership. A person in possession of a thing may be presumed to be
the owner of it. The person in possession of a thing need not prove the
ownership (as possession is considered prima facie evidence of
ownership), instead, the burden of disproving ownership of the possessor
lies on the person who challenges his possession.
According to Salmond, the subject matter of possession and ownership is
more or less the same. A thing which may be owned, may also be
possessed. Similarly, a thing which may be taken into possession may
also be owned.
According to Sir Henry Maine, the concept of possession is prior to that
of ownership. In fact, right of ownership has taken birth from the right of
possession.