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2. Nature of possession 3

3. Possession under Roman Law 3

4. Possession under English Law 4

5. Definition of possession 5

6. Possession in fact 7

7. Possession in law 9

8. Cases 9



“Possession" is polymorphous term which may have different meaning in different contexts.
It is impossible to work out a completely logical and precise definition of “possession ”
uniformly applicable to all situations in the context of all statues1.

It is the most difficult conception of the legal theory. Since very early times attempts have
been made to analyze and theorize it and various theories have been given about it. The
courts in their decisions on "possession” have not followed any preconceived theory. This has
made the conception a very complicated one. Therefore, “possession ” is a subject of great
academic interest. At the same time it is of utmost practical importance.

Possession is an evidence of ownership2 . It transfer is one of the chief methods of

transferring ownership. The possession of a thing “even if it is wrongful" is a good title
against the whole world except the real owner. That is why it is said that "possession is nine
points of the law”. Long possession creates ownership by prescription. Possession is the basis
on ground of obtaining certain legal remedies, for example, the possessory remedy. In certain
cases the possessor of a thing can confer a good title on a transferee of it though he himself
has none. Possession plays a very important role in criminal law. In a number of offences
against property possession becomes the main issue to be determined'3.


Possession is the most basic relation between man and things4. Possession of material things
is essential to life because the existence of human life and human society would be rather
impossible without the consumption and sue of material things. Many important legal
consequences flow from the acquisition and loss of possession. Besides being a “prima-facie”
evidence of ownership, it is also one of the modes of transferring ownership. Possession is
said to be nine out often points of law meaning thereby that it is an evidence of ownership

Supdt. V. Remembrancer, Legal Affairs V. Anil Kuar, AIR 1980 SC 52.
Section-110 of the Indian evidence act, 1872 says ‘.-“when the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that is not the owner is on the person
who affirms that he is not the owner ".
Theft, defined -the term "theft" is defined under section-378 the Indian penal code, 1860. “whoever, intending
to take dishonestly any movable property out of the possession of any person without that person‘s consent,
moves that property in order to such taking, is said to commit theft".
SALMOND . Jurisprudence (12'" Ed.) P.265

and he who interferes with the possession of another, must show either title or better
possessory right. For example, a thief who steals may watch has a possession which the law
will protect against everyone except myself or some person acting on my behalf. Not forcibly
is a wrongful act though the possession of the person turns out to be wrongful. The defendant
cannot take the defence that some other person than the other person dispossessed, had a title
to the land5. The remedy to recover possession is called “possessory remedy” as provided by
the statues6.

Accroding to HENRY MAINE, possession means that contact with an object which involves
the exclusion of other person from the enjoyment of it. Possession denotes physical contact
resumable at will. In other words, it does not signify mere physical detention but physical
coupled with the intention to hold the thing detained as one’s own7.


Under Roman law, the concept of possession was used in two different sense. To be in
possession of a thing was different form having legal possession over it.

The former denoted that a person simply has physical control over the thing and it was called
“corpus possession’s” - while the later meant having exclusive control over a thing. The
Roman called as “civil possessions” which denoted legal possession.

In Roman law, certain important consequences were attached to “civil possessions ”

According to XII tables a continued possession of an immovable property for a long period
which was not detention gave to the possessor ownership or “dominium " over the property.
The property disputes were mostly decided on the basis of legal possession only and the
courts thought it unnecessary to decide the question of ownership.

A person was deemed to be in legal possession of a thing when they not only think was in his
physical control or he had custody over it, but he also had the power to exclude other form
interference in his possession. This mental element to hold possession and control over a
thing to the exclusion of all others was called “animus Thus possession to be legal, required
two essential elements i.e.

JAFARIES V. Great Eastrn Rly. 5E & B 802 (802).
Section-6 of the specific relief act, 1963.
MAINE HENRY : Ancient Law, P.47

i) Corpus, and

ii) Animus

Roman law distinguished “detention ” from custody. In case of detention, a person was to
have real possession and control over a thing though he may or may not have ownership of it.
The "custody" on the other hand, involves possession and control without ownership. The
English law, however, did not recognize this distinction.


The importance of possession has equally been recognized in the English law also. The term
is commonly used in both,

i) Civil, as well as

ii) The criminal law.

In civil law, viz. the law oftorts, contract, property, specific relief, etc. many wrongs are
defined in terms of possession.

For instance, trespass is a wrong relating to possession of land or goods, conversion is wrong
affecting possessory right in goods and is known as “trover”.

In law of crimes, theft is dishonestly taking away any movable property out of the possession
of any person without that person’s consent8.

The English law recognizes that acquisition or loss of possession results into many important
legal consequences. Possession has been given protection under the law of varied reasons.

Section 378 fPC (in English law "theft" is called "larceny")


Jurists have defined possession according to their own notions.

POLLOCK says...that having physical control over a thing constitutes possession.

According to SALMOND "the possession of a material object is the continuing exercise of

a claim to the exclusive use of it”. Thus, possession involves two things.

1) Claim of exclusive user; and

2) Conscious or actual exercise of this claim i.e. physical control over it. 754 The
former is mental element called “animus possessions” and the latter is physical element as the
“corpus possidendi".

Professor ZACHAIAE observes that possession is a relation between a person and a thing
which indicates that the person has an intention to possess that thing and has the capacity of
disposing it of.

SAVIGNY in his theory of possession 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 having initially acquired the thing, there must be physical power to retain it.

SALMOND, however, does not agree with SAVIGNY’s view that possessor must have
physical power to exclude alien interference. The true test according to him is not the
physical power of exclusion. But the “improbability of interference by other”.

HOLMES writes, “to gain possession a man must stand in certain physical relation to the
object and to the rest of the world, and must have a certain intent”.

POLLOCK pointed out that in common speech 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 others.

According to MARKBY possession is the determination to exercise physical control over a

thing on one's own behalf coupled with the capacity to do so,

MAINE defines possession as “physical detention coupled with the intention to hold the
thing detained as one's own".

KANT defines possession and says, that , “there must be empirical fact of taking possession
conjoined with the will to have external object as one’s own".

This definition shows that possession involves in the first place a claim of exclusive user and
secondly this claim should be actually exercised, that is, brought under physical control.

In other words, there are two elements which are essential to constitute the concept of
possession as complete and valid.

These are ;-

i) Physical element which consists in physical control over the thing,

ii) A mental element which consists in the determination to exercise that control.

The physical element is called the “corpus possession ” is and the mental element is called’
as the “animus possidendi ”. It is said that to constitute a valid and complete possession both
these elements must be present i.e. there must be “animus possidendi" which means the
intention to possess as well as “corpus possessions” i.e. the thing must be actually possessed
by the person who has intention to possess it.

To constitute possession it is essential that following elements must be present, viz.

1) “animus possidendi ”, i.e. intention to possess and

2) “corpus possessions ” i.e. the thing is in actual possession.

But these elements but must be present in the case of possession and neither of them alone is
sufficient to constitute possession.

Corpus is the effective realization in fact of the claim of the possessor while animus is the
subjective element. SAVINGNY was of the view that both the elements i.e. corpus and
animus must be there to constitute possession.


Possession is divided into two categories, viz.

1) Possession in fact, and

2) Possession in law

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 possession 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.

Of possession in fact and in law there may be three situations viz.,

1) Possession in fact as well as in law

2) Possession in fact not in law

3) Possession in law and not in fact

The first type of possession is the perfect possession while the second type of possession is
not called as the possession actually simply a custody as the possession of servant over the
thing of his master, and the third types of possession is property called as construction
possession as 1 have a railway receipt for the goods which are with the railway.

A tenant may be occupying a particular building but the landlord has the constructive
possession of the same. The same is the case with the things in the possession of servants,
agents and bailees.

The relation between a person and a thing which he possesses is called possession in fact or
"de facto possession ”.

It indicates physical control of a person and a thing.

For instance, if a person has caged a parrot, he would be deemed to have possession of it so
long as the parrot is in the cage but as soon as the part escapes fro the cage of set free, he

would have possession over it. Certain points regarding possession in fact must be carefully
rated. They are.

1) There are certain things over which a person cannot have physical control e.g. sun, moon,
stars, etc.

2) The physical control over the object need not be continuous. For instance, I possess my
coat when I am wearing it, I still have possession of it when I take it off and hang it on a pag
when I go to sleep. The basic idea is that I should be in a position to resume control over it in
normal course whenever I so desire. In other words physical control may continue even if a
person relinquishes actual control temporarily.

3) In order to constitute possession in fact, merely having physical control of a thing is not
enough but it must be accompanied by capacity to exclude others from the possession of it.
However, some jurists do not consider the element necessary for possession.

4) In order to determine the question of acquisition, abandonment or termination of

possession, the distinctive feature is the desire of the person whether he desires to retain
possession or not.


Possession in law is also termed as “de jure " possession. It has already been stated that the
law protects possession for two obvious reasons, namely,

i) By conferring certain legal rights on the possessor;

ii) By penalizing the persons who interfere with the possession os a person or by
making him pay damages to the possessor.

Whenever a person brings a suit for possession the first thing that the court ascertains is
whether the plaintiff was formerly in real possession of the thing in dispute. It is true that in
most of the actual or factual possession testifies legal possession yet there are many situations
when a person does not have possession in law although he is in actual possession of the

In the legal sense, possession is used as a relative term. The law is generally not concerned
with the question as to who has the best title, but it is concerned as to which of the parties
before it has a better title. A few cases may be cited in support of this contention.



In this case it was decided by the court that the bundle of notes found on the floor of a shop
passed into the possession of the finder rather than the shopkeeper. The decision has been
supported by POLLOCK and SALMOND. POLLOCK holds that since the shop-keeper
“defendant" has no “corpus” in the bundle of nots, he has no “de facto" control over it.
SALMOND has taken this view that the shopkeeper has no “animus ” for possession. The
decision has, however, been criticized by Prof. GOODHART and GAVNILLE WILLIAMS.
In their opinion this case was wrongly decided because the defendant shopkeeper had a
general "animus ” and sufficient control requisite for legal possession of the notes were
physically found in the shop itself10.

(1851)21 LJ QB 75 I.
GOODHART : Essays in Jurisprudence & Common Law P.83.


In the instant case the accused was convicted of stealing a raincoat from a maid servant who.
as against the master, had more custody of the raincoat and could herself have been convicted
of larceny had she dishonestly made-off with it. In the eyes of law she had possession as
against the thief but not as against the employer.


A person went in a shot and took some cloth to see. Then he ran away with the cloth. He was
convicted for larceny as the court held that he had not obtained the possession of the cloth
merely by taking it and it was still in possession of the shopkeeper.

SALMOND observed that possession in sometime possible without knowledge of the

subject-matter and sometimes knowledge is a necessary requirement for possession. He
explains this by a hypothetical illustration. If A momentarily hand his wallet to B, fro whom
it is stolen by C, who then losses it on D’s property, where it is found by E, the question who
has the right to possess or who has legal possession - will depend on who brings actions
against whom.

As against all subsequent parties, E’s title would prevail because finder acquires a good title.
In an action between D and E, however, it would seem that D would have a better title if he
could prove that the article was found on property from which he had a general intention to
exclude others.

As against C, neither D nor E would be said by law to have possession since C had a good
right against all except the true owner. In an action by C against D and E, the alter would not
be allowed to plead just tertii, than is, they cannot argue that tire wallet belongs to someone
other than C and therefore C should not succeed against D and E. To allow this, would be to
allow anyone who cold prove a defect in a possessor’s title to dispossess him of his goods.
The plea of “jus tertii” is allowed only to the true owner and/ or his agent.

Obviously, as against A or B, C would have no defence, B would recover the wallet because
he had actual possession of it. A could recover it from C because, though it was in B’s hands,

(1929) 142 L.T583.
(1678) T. Ramn, 275

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he “i e A” had to immediate right to possess. Therefore, A or B whosoever brings action
against C, would be deemed to have legal possession to the wallet as against C.

It would, therefore, be seen that in common law, possession is a relative matter. The law is
not normal concerned with the question which of the parties before the court had a best right
to possess; it is concerned with the question as to which of the parties has the better right to


In this case the owner of house permitted a lay to keep her luggage in some of his rooms. The
lady sent her luggage through someone who kept the luggage in the rooms shown by the
owner and locked the same and handed over the keys to the lady. Deciding the dispute as to
possession of the luggage, the exchequer chamber ruled that though the luggage was in real
possession of the owner of the house "rooms’’, but still the lady had the legal possession of it.
The keys of the locked room being with the lady, it was sufficient evidence of the fact that
she still had the physical control over the luggage. The court laid down the principle that, "a
bailor who had delivered the good to a bailee to keep them on account of the bailor, may still
treat the goods as being in his own possession, and can maintain an action for trespass
against a wrongdoer who interferes with them''.


The defendant company took the land of the plaintiff for erecting a gas plant. When the
excavation work was on, the defendant lessee company discovered a pre-historic boat six feet
below the surface of the land. The court held that lessor had the first possession of the boat
and not the lessee.

SALMOND : Jurisprudence (12th Ed.) P.279.
(1876) 1 ExP 285 (292)
(1886) 33 Ch D 562

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The defendant was employed by the company, to clean out a pond upon their land. He found
certain gold rings at the bottom of the pond while cleaning it. The court held that the
company had the first possession of the rings and not the defendant.


The defendant purchased a house in 1938 but he never occupied it. In 1940 the house was
requisitioned by the government royal artillery. The plaintiff, a soldier who was stationed in
the house found a brooch on the top of the window-frame covered by dust.

The brooch was handed over to the police who without attempting to discover the rightful
owner delivered it to the defendant who was the owner of the house. The defendant sold the
brooch "jewel” for $ 66. The defendant contended that he being the owner of the house in
which the brooch was found, was entitled to it as the owner of it.

The court, however, ruled that the plaintiff was entitled to the brooch or its value since his
claim as finder prevailed over all others excepting the rightful owner. The court further
observed that since the defendant was never in possession of the house and had no knowledge
of the brooch until it was brought to his notice, he neither had “de facto ” possession of it nor
the “animus ” of excluding others, therefore he had no right over the brooch.

The decision has, however, been criticized by Professor GOODHART as having been
wrongly decided18.

(1996) 2 QB 44.
(1945) l KB 509
For details see Acthuthan Pillai’s Principles ofTorts (8lh Ed.) PP.171-72.

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