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Possession : Meaning, Definition and Kinds of possession

According to Salmond, in the whole range of legal theory, there is no conception more difficult than that

of Possession. Possession is the most basic relation between man and a thing. Possession is an evidence of

ownership.

1) Meaning:

"Possession" literary means physical control over a thing or an object. It expresses the closest

relation of fact that can exist between a thing and the person, who possess it. In law, possession means it

includes not only physical control over a thing but also an intention to exercise that physical control.

Example: A has an article in his hand. In other words, he is in possession of that article. The person who is

in possession is called a 'Possessor'. In human life, consumption of material things is very essential and it

would be Impossible without the position of the material things. Therefore the concept of possession is of

utmost practical importance in human life.

2) Definition:

The concept of possession is though basic and essential in human life, it is a difficult to define.

There is no fixed or precise definition of possession because it is legal as well as factual concept. Supreme

Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that it is

impossible to work out a completely logical and precise definition of Possession uniformly applicable to all

situation in the context of all the statutes.

It is very difficult to define the term Possession. Some Jurists have given different definitions.

John Salmond:

Salmond defines Possession as, "possession is the continuing exercise of a claim to the Exclusive

use of an object."

Savigny:

Savigny defines Possession as, "intention coupled with physical power to exclude others from the

use of material object.


Salmond criticized Savingy's definition and ground that Savingy committed an error by including

the element of physical power in his definition.

O.W. Holmes:

Holmes defines Possession as, "To gain Possession a man must stand in a certain physical

relation to the object and to the rest of the world, and must have certain intent."

Maine:

Maine defines the possession as, "physical detention coupled with the intention to hold the

things detained as one's own.

Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In common speech a man is said to possess to be

in possession of anything of which he has the apparent control from the use of which he has apparent power

for excluding others."

Ihering:

The best among them is the definition given by Ihiring. According to him, "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 based on practical convenience."

3) Elements of Possession

From the above definition we could see in that possession has two essentials -

1) Actual power over the object possessed. i.e. corpus possessionis and

2) Intention of the possessor to exclude any interference from others. i.e. animus possidendi.
According to John Salmond, both corpus and animus must be present to constitute Possession.

Ownership is a legal concept whereas Possession is factual as well as legal concept.

The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman Law.

4) Categories of Possession: Possession is divided into two categories.

a) Possession in fact and

b) Possession in law.

Possession in fact is actual or physical possession. It is physical relation to a thing. Possession in law

means possession in the eye of law. It means a possession which is recognized and protected by law. There

is sometimes a discrepancy between possession in fact and position in law, although usually possession

exists both in fact and in law in the same person. A person who is in de facto possession of a thing also

comes to have de jure possession.

6) Modes of acquiring possession:

There are two modes of acquiring possession i) Delivery and ii) Possession.

i) Delivery: Delivery completes voluntary act from one person to another. The transferor gives actual

position to the transferee. It is usually a lawful mode of possession. Delivery may be actual of constructive.

In actual delivery the thing is physically delivered.

ii) Taking: Taking implies an Act exclusively on the part of the person who physically takes the Possession.

It is acquisition of the Possession without the consent of previous Possessor. It is the possession without the

consent of the Possessor. Sometimes it is said to be unilateral act. Transferee acquires the possession

without the knowledge or consent of the former Possessor of the thing. It is usually possessio-civilis. It may

or may not be lawful. If it is lawful then it is legal possession. i.e. possessio-juri.

See in Detail Methods of Transfer of possession


7) Kinds of possession: See ⏩⏩ Important Kinds of possession.

8) Possessory Remedies:

Possessory Remedies are those which exists the protection of Possession even against ownership.

Proprietary remedies are those which are available for the protection of ownership. In many legal systems,

possession is provisional or temporary title even against the true owner. Even a wrongful Possessor who is

deprived of his possession can recover it from any person whatsoever on the ground of his possession. Even

the true owner, who retakes his own, must first restore possession to the wrongdoer and then proceed to

secure a possession on the ground of his ownership.

9) Why law protects possession?

There are many reasons for the protection of possession Read here → Reasons Law protects

Possession

10) Relevant case law:

a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Fact:

In this case the plaintiff was the owner of the land. He gave his land to defendant Company on lease

for the purpose of excavation and erection of gas works thereon. During the course of excavation one of the

man of the defendants Company found a pre-historic boat buried 6 feet below the surface.

Issue:

Issue before the Court was whether the boat belonged to the landlord or lessee.

Held:

J. Chitty observed that the landlord was entitled to the boat against the Company though it was

discovered by the Company. It was observed that it was immaterial that the landlord was not aware of the
existence of the boat. He was in possession of the ground not merely of the surface. Hence everything that

lay beneath the surface down to the center of the earth consequently in possession of the boat. It did not

matter that the plaintiff was not aware of the existence of the boat.

b) South Staffordshire Waterworks Co. V. Sharman, 1896.

Fact:

In the instant case Plaintiff Company appointed defendant servant to clean out a pond upon their

land and in doing so he found certain gold ring at the bottom of it. Dispute arose between plaintiff Company

and the defendant servant as to the possession of the gold ring.

Issue:

To whom the Gold ring belong?

Held:

The plaintiff Company was in first possession of the gold ring and is not the defendant, who

acquired no title to them. It was observed that the possession of land carries with it in general possession of

everything which is attached to or under the land.

11) Conclusion:

Possession is the most basic relation between man and a thing. Possession is prima facie a proof or

an evidence of ownership there is no fixed or precise definition of possession because it is legal as well

factual concept. The four essentials of possession are subject matter of possession, physical control,

intention and knowledge. Possession is nine points in law and law provides remedies to person having

possession.

Kinds of Possession

The institution of property has indispensable relationship with the mankind. There are two important

rights related to property namely i) ownership and ii) possession.


Possession is an evidence of ownership. It is very difficult conception of utmost practical

importance in legal theory.

Following are the important kinds of possession.

1) Corporeal Possession :

Those things, which are having physical or material existence, wherein direct relationship with the thing, are

possible. for example, House has physical existence which can be perceived by our senses. The possession

in the house therefore is Corporeal Possession. Therefore corporeal possession is the possession of material

things, movable as well as immovable such as the Car , book , pen, wristwatch, etc.

2) Incorporeal Possession :

It means Possession of immaterial or intangible things. These are the things, which do not

have physical existence and therefore cannot be perceived by our senses. Therefore possession in respect of

this thing is known as incorporeal possession. for example - Copyright, Trademark, Patent, Goodwill etc.

According to Salmond, corporeal possession is Possession of an object whereas incorporeal

possession is the possession of a right.

3) Mediate Possession :

It is the Possession of a thing through another, either through his friend, servant for agent. As

the thing remains, in possession with another, the possessor has lesser degree of physical control over such

thing.

Illustration :
a) 'X' has a car, which he leaves with his driver. The possession of the driver will be immediate whereas the

Possession of 'X' will be mediate.

b) 'A' purchased a house through his agent and the agent got the possession. A's possession is said to be

the mediate possession.

4) Immediate Possession :

It is also called as Direct Possession. Direct or primary possession by a person over a

particular object, which acquires or gets directly or personally. In immediate possession, as the thing is in

possession of the possessor directly, he has higher degree of control over such thing. It means that there is

no other person holding the thing.

Illustration :

a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.

b) 'A' purchased a house and takes Possession of the property it is called direct or immediate

Possession.

5) Constructive Possession :

Constructive possession is not actual possession it is a possession in law and not possession in

fact. According to Pollock and Wright, it is a possession which arises only by the construction of law.

Example : The delivery of the keys of a building.


6) Adverse Possession :

It means holding the land on his own behalf of some other person. if adverse possession

continues peaceful and undisturbed for that number of years, he can claim ownership and the true owner's

right( ownership) gets extinguished.

7) De facto Possession :

De facto Possession exists where the thing is in the immediate occupancy of a party. The person

in de facto possession has the physical control of the thing to the exclusion of others and has Animus and

Corpus over the material object. De facto possession may be described as actual Possession.

8) De jure Possession :

De jure possession can be described as posssession in law. De jure possession exists when person

claims a thing as his own in natural normal legal manner by occupying a thing without any dispute as to his

legal right to possess and enjoy the thing. Legal possession may exist with or without property in

possession. In case of De jure possession it is just possible that a man I have ceased to live in a house but

without intending and to abandon it for good as the owner of the house.

Why Law protects Possession ?

The possessor has better title against the whole world, except true owner. Even if the possession is

wrongful, the possessor if deprived of wrongfully, he is protected by law providing for possessory remedy.

There are many reasons for the protection of possession

1) According to the philosophical School of jurists, possession is protected because a man by taking

possession of an object has brought it within the sphere of his will. The freedom of the will is the essence of
personality and has to be protected so long as it does not conflict with the universal will which is the State.

As possession involves an extension of personality over the object, it is protected by law. As the reputation

of a person he is protected against defamatory attack, his possession is protected as he has projected his

Personality over the object possession.

2) Possession is an Evidence of ownership, Section 110 of Indian Evidence Act 1872- Provides '

when any question is whether any person is owner of anything of which he is shown to be in possession, the

burden of proving that he is not owner is on the person who affirm that he is not the owner.

3) The possession even if it is wrongful is a good title against the whole world except the true

owner.

4) Possession is protected for the preservation of peace: It is the natural human Instinct that he does

not easily part of with what he possesses. The interference with the possession leads to violence. Thus the

protection is given to the Possession to aid criminal law and it prevents a breach of peace.

5) Section 145 of CrPC deals with the dispute of immovable property to provide speedy remedy for the

prevention of breaches of peace out of such dispute. The object of this section is to enable an executive

Magistrate to intervene and pass a temporary order in regard to the possession of the property in dispute,

till the competent civil court determines the right of the parties. The executive Magistrate shall determine

the possession of immovable property on a particular date and issue an order declaring such party to be

entitled to Possession, thus restore to Possession to the party who was forcibly and wrongfully dispossessed

of.

6) Possession is protected as a part of law of tort. Law protects possession not only from disturbance

by force but from disturbance by fraud. The protection thus afforded as a part of the law of tort.

7) Section 53a Transfer of Property : Doctrine of part performance which provides, there is a contract of

sale in respect of immovable property where in transferor by writing, signed by him agrees to transfer such

immovable property and the transferee has taken the Possession of the immovable property and continuous

to be in possession of immovable property and the transferee has done something in furtherance of such
transfer and ready and willing to perform transfers have done something his part under the contract of

transfer, then even though such contract is required to be registered by any law and not registered in fact

then also the transferor id debarred from claiming any right against such transferee.

8) Section 47 sale of Goods Act: right of the seller to lien. The seller if unpaid seller is and if the

Possession is still with the seller he can retain the goods.

9) Right of Bailee in contract of bailment: Indian Contract Act 1872, Section. 170, 171. The Bailee

too has a right to lien the goods bailed to unless he is paid remuneration by Bailor till then he is entitled to

keep the position of the goods.

10) In offence of theft in IPC Section 378: Possession is essential element. Even though the possession

was wrongful and the Possession of such thing is taken without the consent of the possessor with dishonest

intention.