A

Project work on

‘ POSSESSION’

submitted by-

Manish Kumar Singh

Enrolment no-CUSB1613125028

Semester -6th

Session -2016-21

Under guidance of

MR. DEEP NARAYAN

CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA (BIHAR)

1|Page
ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from many
people and I am extremely privileged to have got this all along the completion of my project. All that I
have done is only due to such supervision and assistance and I would not forget to thank them.

 I respect and thank MR DEEP NARAYAN sir ,for providing me an opportunity to do the project
work on the topic “POSSESSION” and giving us all support and guidance which made me complete
the project duly. I am extremely thankful to her for providing such a nice support and guidance,
despite having a busy schedule

I owe my deep gratitude towards my seniors , who took keen interest on our project work and guided
us all along, till the completion of our project work by providing all the necessary information .

 I would not forget to remember kumar Sonal for his encouragement and more over for their timely
support and guidance till the completion of our project work.

 I am thankful to and fortunate enough to get constant encouragement, support and guidance from my
parents who helped me in successfully completing this project work.

2|Page
 I.AIMS:

The project titled, ‘POSSESSION”, is basically aimed at understanding:

 WHAT IS AN POSSESSION?

 HOW IS POSSESSION DIFFERENT FROM OWNERSHIP

II. OBJECTIVES:

To find out the status of law of possession and to find out the differences and lacunas in various
theories of possession

III. RESEARCH METHODOLOGY:

 Kinds of methodology applied–

The research methodology applied in this project is doctrinal and not empirical. The doctrinal
research included all the primary resources as well as secondary resources.

 Tools used for research–

The tools used in this project research are Library, Books, Articles, and Journals

3|Page
INDEX

Table of cases.......................................................................................5

Introduction...........................................................................................6

Definition of Possession.......................................................................6

Possession under Roman Law..............................................................7

Possession under English Law.............................................................8

Cases....................................................................................................9

Possession in Fact and Possession in Law...........................................10

Elements Of Possession........................................................................11

Theories of Possession.........................................................................13

Types Of Possession............................................................................18

Conclusion...........................................................................................21

Bibliography........................................................................................22

4|Page
TABLE OF CASES PG NO-

Reg v. Riley 1853 Dears CC 149................................................................................9

R. v. Moore: ..............................................................................................................9

Merry v. Green 1841 7 and W. 623..........................................................................9

Cartwright v. Green [1802] 8 Ves. 405....................................................................9

R. v. Rowe 1859 Bell CC 93......................................................................................10

R. v. Hudson 1943 KB 458.......................................................................................10

R. v. Harding: ...........................................................................................................10

Rose v. Mart: ...........................................................................................................10

Bridges v. Hawakesworth [1851] 15 Jur 1079........................................................10

5|Page
INTRODUCTION

There is no theory in the field of law so difficult as that of possession.the complexity of the concept
arises because of the innumerable legal consequences flowing from the acquisitions and loss of
possession.

Possession , for example is prima facie evidence of ownership . usually the presumption is that the
possession of a thing is the owner of it and the other claimants to have it must prove their title .further
the finder of a thing has a good title to it if he is in the possession of that thing . even a person who
wrongfully possesses a thing has a good title against the world at large except the owner himself
.Again a person derives a good title from a possessor even though the possessor himself has none just
as when a person who obtains a bank note knowing that it is stolen one , in that case he commits an
offence of receiving stolen property under section 410 of the IPC which is punishable under section
411 of the said code

DEFINITION OF POSSESSION

It is said that in legal terminology there is no word more ambiguous in its meaning than possession
whether considered in relation to immovable or movable property. It is not only an abstract and highly
imaginative concept but it is also most difficult and controversial concept. It nature, scope, extent, and
limits vary from time to time and system to system. It is a variable term having different meaning
depending upon the circumstances in which this is used.

In law possession means a fact or condition of a person having such control of property that he may
legally enjoy it to the exclusion of other except against the true owner or prior possessor.

An old proverb says, ‘it is nine point of law”, which implies that he who has conscious control of an
object need only surrender his control in one who can establish superior claim in law1. That is,
possession constitutes ninety percent of ownership1.

To a layman possession implies a relation to an object which involves exclusion of other person from
enjoyment of it.

 Oxford English Dictionary says, ‘the visible possibility of exercising over a thing such
contact as attaches to lawful ownership. The detention or enjoyment of a thing by a person
himself or by another in his name, the relation of a person to a thing over which he may at his

1
Gleanwill Wiliams, Learning the Law
6|Page
 pleasure exercise such control as the character of the thing permits to the exclusion of other
persons.
 Bentham says, ‘possession is to recall the image which presents itself to the mind when it is
necessary between two parties which is in possession of a thing and which is not’.
 Maine says, ‘physical detention with the intention to hold the thing detained as one’s own’.
 Savigny says, ‘intentioned coupled with physical power to exclude others from the use of
material object’.
 Salmond says, ‘possession of material thing is essential to life, it is the most basic
relationship between man and things’.

POSSESSION IN ROMAN LAW

Roman law recognized two degree of possession:

1. Possessio naturalis, and

2. Possession civilis.

Roman law was mainly concerned with developing a theory to distinguish between detention and
possession from each other. It was this possession civilis which gave rise to the special protection
conferred by the possessor interdicts2 These interdicts went on the general principle that one who was
in possession was not to be disturbed therein, whether he had legal title or not except by a legal
proceeding. Unless one’s possession was tainted by certain forms of wrong-doing, the possessor had
the protection of these interdicts3. In Roman law possession was also important in connection with
acquisition of ownership by possession if possession is acquired for a certain time and barring of
claims by lapse of time.

As broad generalization, facts needed to acquire possession was physical control ‘corpus
possessionis’, and will to exercise such control, ‘animus’, which was based on Paul’s text. Savigny
thought that since the detentor and possessor have the same physical relation to res, the difference
between must be found in the mental element. The intent, which distinguishes a possessor, is the
animus ‘domini’, which meant, the desire to hold for oneself. This theory explains why the tenant, the
borrower, and the agent did not have possession in Roman law, for they did not hold in their own
right. On the other hand this theory faced difficulties because Roman law sometimes gave a non-
owner possessory rights. These examples he explained as ‘anomalies’. Jhering can explain those
2
These were formulas framed and used by the procter, by which he ordered something to be done, chiefly in
disputes about possession
3
Dias, Jurisprudence(3rd Edition) p. 334
7|Page
cases which Savigny found difficult, but it itself cannot account for those where the law refuses
possessory rights to those who are in effective physical control4.

Fewer facts were needed to continue possession then to acquire it, but they varied from case to

case. In some cases possession continued despite loss of animus, whether temporarily or permanently,
and the rule was expressly grounded on convenience. In some cases a person did not lose possession
by loosing corpus alone, and this rule is also expressly based on convenience (e.g., a runaway slave, is
under continued possession). It was said both corpus and possession has to be lost before possession is
lost, but at other times that possession was retained even though both were lost. The element common
to all these application seems to be that it was a device of convenience, utilized chiefly to effectuate
the policy of the law in different branches. It is thus obvious these cannot reflect any single principle.
Most of the decision were given in actual situations and were designed to meet the practical
requirements of a particular case.

POSSESSION IN ENGLISH LAW

Possession was termed ‘Seisin’ in early English law and was used to describe possession of both
chattels and real property. A modified version of Savigny’s theory has exercised considerable
influence on English writers. The term possession didn’t confine to physical control. As

Roskikill LJ has said; ‘having something in one’s possession does not mean of necessity that one
must actually have it on one’s person’5. This is to some extent reflected in the phrases sometimes
encountered, such as ‘possession in fact’ and ‘possession in law’. Salmond6 has distinguished
between them. According to him, possession in fact is an actual relation between a person and a thing.
Law does not define the mode in which it may commence or cease. A servant is not deemed to be in
possession of the master’s good while things are in his master’s control or a buyer in whom the title to
goods is vested but he has, for the time being, only a letter with him addressing to the warehouse
people to deliver the goods to him. So long he does not get the thing he has possession in law, not in
fact. Possession in law has a legal relation. It implies a manifest intention to exclude the world at large
from interfering with the thing in question and to do so on one’s own account and in one’s own name.
Law defines the modes in which it commences and ceases. The master has possession in law because
the intention to possess is attached to the master. Possession in fact and possession in law are co-
terminus but are not necessarily available at the same time.

4
Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 715
5
R. v Prudy (1975) QB 288
6
Salmond on Jurisprudence ch.6
8|Page
CASES

 Reg v. Riley7: In this case the accused drove off amongst his own lambs, but without
knowing it, the lamb belonging to the prosecutor. After he had discovered the error he even
sold the lamb as his own. He was convicted of larceny.
 R. v. Moore: the prisoner had picked up and converted to his use a bank note which had
been dropped on the floor of his shop. He converted it in spite of the fact that he knew the
owner of it could be found. It was held that he was rightly convicted of larceny- that is he had
not obtained possession of the note while it was lying on the floor of his shop before he had
discovered it, and further that the owner’s possession was in some way extended, at least
fictionally, after he had lost the note in the accused’s shop.
 Merry v. Green8: An action for assault and false imprisonment- the defense was that the
assault and imprisonment was justified because the plaintiff had committed larceny. The
relevant facts were that the plaintiff had purchased a bureau at an auction and subsequently
discovered a purse in a secret drawer. The purse contained money and other valuable things.
The plaintiff appropriated that property to his own use. At first instance the plaintiff obtained
judgment in his favor. On appeal the matter was sent back for a new trial because it was not
clear from the evidence just what the terms of sale the bureau had been. In his judgment Baron
Parke laid it down that if the auctioneer had sold the bureau with express notice that the
purchaser was not gaining title to the contents of it, if there happened to be any, then the
plaintiff’s appropriation of the purse and other valuable could constitute larceny- is to say that
the mere delivery of the bureau did not necessarily carry with it delivery of possession of its
contents, at best if it was made clear that the contents were not being sold with bureau.

 Cartwright v. Green9: a bureau was delivered to a carpenter for repairs. The carpenter
discovered money in a secret drawer which he appropriated to his own use. It was held that he
committed larceny by feloniously taking the money into his possession. In this case of course
the carpenter was merely a bailee of the bureau but none the less by ordinary rules would be
held to have possession of it. It follows from the decision that he did not obtain possession of
the money when he obtained possession of the bureau, but only at the time he discovered it and
formed the intention to convert it to his use.

7
[1853] Dears CC 149
8
[1841] 7 and W. 623
9
[1802] 8 Ves. 405
9|Page
  R. v. Rowe10 this accused had taken piece of iron which he found on the bed of a canal when
the canal was drained of water. The iron had fallen overboard from barges. The accused was
convicted of larceny of the iron from the company which owned the canal- that is to say the
company had possession of the iron merely because it was resting upon the company’s land.
 R. v. Hudson11: by mistake the department of government posted the accused a letter in
which was a cheque intended for someone else. The accused appropriated the cheque to his
own use and it was held that he was guilty of larceny. Although the accused had received
possession of the cheque innocently, the view taken was that he could not have been said to
have acquired possession of the cheque until he was aware of its existence and at the time he
became aware of its existence he took it animus furandi.
 R. v. Harding: the court of criminal appeal upheld a conviction for larceny of mackintosh
from servant of the person who would, for other purposes, have certainly been held to not only
the owner but the possessor of the mackintosh.
 Rose v. Mart: the respondent, when purchasing some goods, deposited a clock which he
owned, with the vendor, as security for the price of the goods he was purchasing. It was agreed
between them that the vendor would be entitled to sell the clock if the respondent did not pay
the goods within one month. The respondent later returned to the vendor’s shop and took the
clock without paying the price of the goods. On appeal it was held that the respondent should
have been convicted of larceny.
 Bridges v. Hawakesworth12 the plaintiff found a parcel of notes on the floor of the
defendent’s shop. It was held that the plaintiff had acquired a good title to them, as against the
defendant, as he was the first to acquire possession of the notes. The defendant had not
previously acquired possession because he had not known of the notes’ existence until after
they were found by the plaintiff.

Possession in Fact and Possession in Law:

Possession in law is also known as dejure possession. It exists when a person claims a thing as
his own in a natural normal manner by occupying a thing without any dispute as to his legal
right to possess. Legal right may exist with or without possession. It is just possible that a man
may have ceased to live in a house but without intending to abandon it for good as the owner
of the house. Possession in Fact is also known as defacto possession. It exists when the thing is
in immediate occupancy of a person. The person has physical control of the thing to the
exclusion of others. And has animus and corpus over the material object. It is actual
10
1859] Bell CC 93
11
1943] KB 458
12
[1851] 15 Jur 1079
10 | P a g e
 possession, which can be held to be prima facie evidence of ownership. Of all the divergences
between legal and actual possession what is most notable is that outside the law possession is
used in an absolute sense whereas within the law it is employed in a relative sense. Outside the
law we do not speak of a person having possession as against someone else; we say that he
either has or has not got possession.

ELEMENTS OF POSSESSION

Both in English and Roman laws possession has two distinct elements. They are:

1. Physical control or power over the object possessed called corpus possessini, and

2. Intention or will to exercise that power, called animus possidendi.

Both these are necessary to constitute possession. The term corpus or physical control means the
power to use the thing possessed and the existence of grounds for the expectation that the possessor’s
use will not be interfered with the intent consists the desire and the will to use thing so possessed. A
person cannot be said to be in possession of a thing unless he has animus possidendi. Markby in this
context says; ‘there are physical element and mental element in the legal conception and in order to
constitute possession in a legal sense there must exists not only the physical power to deal with things
as we like and to exclude others but also the determination to exercise that power or control on our
own behalf’.

1. Corpus (physical control): it implies two things;

 The possessor’s physical relation to the ‘res’ i.e., the object.

 The relation of the possessor to the rest of the world i.e., ability to exclude others. Physical
control of the thing lies at the bottom of possession. Possession must consist in the undoubted
control over a thing to the exclusion of others. Possession must be direct, physical and actual
and not merely symbolic or fictitious. However direct contact need not be necessary with the
thing although it is true that most of the things that we possess are in direct contact with us.
For example a man walking along the road with a bundle sits down to rest and place his bundle
on the ground at a short distance from him. No one thinks of doubting that the bundle remains
in his exclusive possession not symbolically but really and actually. ‘Physical contact’,
therefore, is not necessary for possession. It is rather the possibility of dealing with a thing as

11 | P a g e
 we like and of excluding others. According to Holland and keeton the question whether corpus
(physical relation) exists or not depends among other things upon the nature of the thing itself
and the probability that others will not interfere with the enjoyment of it. Thus corpus may be
secured by:
 Continued physical control of the thing;
 Presence near the thing;
 . Exclusive knowledge of the situation of the thing,
 Continuous possession of the thing unless it is disturbed by some physical force or violence.
A man who leaves home and goes to neighboring town for his business still retains possession
of his land or house. So is the case with movable and domestic animals which live in domestic
state. As regard wild animal which are in the wild state are only in our possession as long as
they are in our captivity. A wild animal that has been wounded by us mortally is not in our
possession until we have laid hold of it. Possession therefore, lasts so long as there is any
physical control over things and ceases when that control ceases.

The second element of corpus is that the possessor must have the ability to exclude others. There is no
hard and fast rule regarding the amount of power to exclude others. Therefore, ‘physical control’ does
not mean ‘physical power’ to exclude others. Even the weakest person may have the corpus element
(physical control). It depends more upon the general expectation that the possessor must have the
ability to exclude others. There is no hard and fast rule regarding the amount of power to exclude
others. There is a case on this point. In R v. Chissiers13, a person came to a shop and asked for a
particular a particular kind of cloth (linen). The shopkeeper handed over some piece of cloth to him
but before any sale was completed, he ran away with it. This was held to be larceny as there was no
change of possession until he ran away. It is clear from this case that the corpus of possession is not
necessary synonymous with the physical power to exclude others.

Concept of Corpus in International Law:

The problem of corpus is also equally important in International Law. The question here

arises is whether mere discovery or planting of a flag of a state by it’s nationals gives exclusive
control over the things which so far belonged to none. Several states have discovered in Modern times
have explored Antarctica, Moon and other satellites and there may be conflicting claims for their
possession on the basis of discovery or planting of flag as in the case of USA which may claim
possession of the Moon on the ground that it’s astronauts were the first to plant it’s flagon the moon. It

13
1678] L. R. 275
12 | P a g e
is understood that mere discovery or planting of flag will not create possession but it must be
accompanied by colonization and settlement in a peaceful and undisturbed way.

2. Animus: another aspect is mental element without which the physical control would remain only
as a mere fact having no legal consequence. Animus is the conscious intention of an individual to
exclude others from the control of an object. The mental element in possession may be manifested in
the following ways:

 The person holding the property need not be the owner and may exercise
animus to exclude others on behalf of the owners. A tenant or a morgagee, e.g.,
may have possession no less than that of the owner himself. (it may be
described as representative possession)
 b. The animus to exclude others need not be in the interest of the possessor or
on his own behalf but in the interest of bailee or lessor. A carrier of goods, a
servant or agent or a trustee may have true possession (by having corpus as well
as animus) though he makes no claim to the thing possessed on his own behalf
but on behalf of the owner.
 c. Animus to exclude others need not be specific. A person having a library has
the possession of every book in the library though he might have forgotten the
existence of some of the books.
 d. The animus to exclude others need not be based on a legally enforceable
claim. It may be the result of a wrongful act. Thus if ‘B’ steals goods from ‘A’
and ‘C’ in turn steals it from ‘B’, then although ‘A’ has a right of claim against
both ‘B’ and ‘C’ yet in spite of this ‘B’ as a prior possessor (although a thief)
against ‘C’ and theoretically he can legally recover possession of the goods
from ‘C’.
 e. The animus to exclude others need not be absolute. Sometimes a person may
possess a piece of land notwithstanding the fact that some other person or even
the public at large, possess a right of way over it.

Classical theories of Possession

Savigny’s theory: Savigny was the first to give a theory on possession. He based his work on the
text of Paul. He said possession consists of two ingredients, first is corpus possessionis (effective
control) and other being animus domini (the intention to hold as owner). He believed since possession

13 | P a g e
involved both of these, the permanent loss of one or the other brought possession to an end. Savigny
further observed that the essence of possession is to be found in the physical power of exclusion. He
says that the corpus possesionis maybe of two kinds, one relates to the commencement of possession
and the other relates to the retention of possession. The corpus required at the commencement of
possession is the present or actual ‘physical power’ of using the thing by oneself and excluding others
from the use of it., whereas the corpus required for the retention of possession once acquired may
consists merely in the ability to reproduce that power at will. Thus, according to Savigny, for getting
the possession of a horse, ‘I must take him by the bridal or ride upon him or have him in my
immediate presence, so that I can prevent all other persons from interfering with me. And since
detentor and possessor have same physical relation to the res, the difference between them must be
found in the mental element, animus domini. He says possession exists when

 the holder believes himself to be the owner of the object, or

 b. having merely found it, means to keep it subject to the possibility of the
owner making his presence, or
 c. Having stolen it he means to keep it against all comers.

Thus, he emphasizes intention as well as physical control to complete possession. Salmond and
Pollock also agree with Savigny on this point.

Criticism of Savigny’s Theory:

1. He used the expression ‘physical power to exclude others’ without adding any qualifications to it.
He did not mention the fact that the exclusion is subject to one exception, i.e., the possessor cannot
exclude a person who has better title over the use of that particular material object.

2. Salmond has rightly criticized Savigny’s definition and observes that even at the commencement a
possessor need not have physical power of excluding other persons. It is the absence of an
improbability of foreign interference that constitute the physical element and not the existence of any
power of exclusion. He further adds that a little child and a man in death bed may have no physical
power as against a strong man and yet possess the money in their hands. He thus says that savigny
committed an error by including the element of physical power in the definition of possession.

3. Dias has also criticized Savigny’s definition and raised the following objections:

 That it was erroneous to assume that corpus and animus, which were only
conditions sometimes for required for acquisition and loss of possession,

14 | P a g e
 constitutes possession itself. Even Paul’s text on which he relied so much also
says ‘we acquire possession by means of corpus and animus not that possession
is both these things’.
 b. Savigny’s idea of animus domini, the intention to hold as owner fails to
explain the cases of the pledgee, leasee, who had possession but did not intent
to hold as owners.
 c. The application of Savigny’s rigid theory of the continuation and loss of
possession reveals its weakness. Possession did sometimes continue despite loss
of animus or corpus or even both. On his theory it should follow that possession
was lost if even one or the other element was lost.

Ihering’s Theory: He approached possession as a sociological jurist. He posed the question why
Roman law protected possession by means of interdicts. It was devised to benefit the owners by
protecting their holding of property and so placing them in the advantageous position of defendants in
any action as to Title. He said, ‘whenever a person looks like an owner in relation to a thing he has
possession, unless possession is denied to him by rules of law based on practical convenience. He did
not emphasize on animus like Savigny. What is necessary according to him is the awareness of the
thing which can give possession to the person. His approach was said to be more practical than
Savigny. He gave a functional definition of possession. However gives no clear idea of possession.
But was important in a sense that it brings out the notion of policy and convenience implying that the
concept may have a changing meaning for different purposes and in different frames of law.

Salmond’s Theory: he began by distinguishing between ‘possession in fact’ and ‘possession in

law’Possession in fact is a relationship between a person and a thing. I possess, roughly speaking,
those things which I have: the things which I hold in my hand, the clothes which I wear, and the
objects which I have by me. To possess them is to have my physical control. If I possess a wild
animal, I get possession of it; if it escapes from my control I lose possession of it. It can be said to
have actual control. It is said that whether possession has been acquired, lost or abandoned intention in
assessing that is highly relevant. But in certain cases it is doubtful whether in ordinary usage
possession could be ascribed to a person utterly to form any intention whatsoever: it would be odd to
describe a day old baby or a man in coma as actually (as opposed to legally) possessing anything at
all. As against this, however, we may find counter example of possession unaccompanied by
intention. I should normally be said to possess a coin in my pocket, even if unaware of their existence
and so unable to form any intention in respect of them. We can say then that what possessor needs is a
minimum intention, intent to exclude others from whatever may be in his pocket. Salmond further

15 | P a g e
clarified that we have to ask whether the facts are such that we can expect him to be able to enjoy the
use of it without interference on the part of others. Corpus possessionis he thought comprised both the
power to use the thing possessed and the existence of ground for the expectation that the possessor’s
use will not be interfered with. An ‘expectation of non-interference’ is not necessary for the
continuation of possession for, as Mr. Parker, a former editor of Salmond, pointed out; a man
continues to possess his pocketbook although he is being pursued by swifter bandits, who will
interfere with his use of it in a few moments. Nor is it necessary even for the commencement of
possession for, taking an example from Holmes, a child and a ruffian may both make for a purse lying
in the road, but if the child is the first to pick it up, it cannot be doubted that he gets possession even
though the ruffian is certain to interfere in few moments. The trouble arises from the assumption that
corpus and animus, which are only conditions for the acquisition of possession, are possession itself.
Salmond denied that possession is one thing at its commencement and something else later on, and he
therefore declared that possession is lost when either corpus or animus is lost. Professor G L Williams
the learned editor of the 11th edition, altered the text on this point, and said that assuming that both
corpus and animus are required to initiate possession, ‘ the possession once acquired may continue
even though corpus or animus, or even both, disappear. This it is submitted, is true, but destroys the
foundation of Salmond’s contention that possession is corpus and animus.

Possession in Law exists when a person claims a thing as his own in a natural normal manner by
occupying a thing without any dispute as to his legal right to possess. Legal right may exist with or
without possession. Law can provide protection in two different ways. Firstly, the possessor can be
given certain legal rights, such as a right to continue in possession free from interference by others.
This primary right in rem can then be supported by various sanctioning rights in personam against
those who violate the possessors primary right; he can be given a right ot recover compensation and a
right to have his possession restored to him. And obviously there will be a need for legal criteria to
determine whether a person is in possession of an object. Indeed the protection would be of little point
if legal protection ceased the moment possession was lost. In common law possession is a relative
matter. If A momentarily hands his wallet to B, from whom it is stolen by C, who then loses it on D’s
property, where it is then found by E, the question who has the right to possess- will depend on who
brings action against whom. Against all subsequent parties E’s title would prevail (except against the
true owner, who is not claiming in this case), for finding confers a good Title. In an action between D
and E, however, it would seem that D would have a better right if he could show that the article was
found on property from which he had a general intention to exclude others. In Bridges V.
Hawkeworth14decided that notes found on the floor of a shop passes into the possession of the finder

14
1851] 15 Jur 1079
16 | P a g e
rather than the shopkeeper. In Hannah V. Peel15, a soldier, who found a brooch in a requisitioned
house, was held entitled to the brooch as against the owner. Here, however, the owner had never been
in possession of the house. In London corp. V. Appleyard and another16, money found on land was
held to be in the possession of the occupier and not of the finder. The concept of legal possession parts
company from ordinary notion of possession. Hence we may find that one who is not actually a
possessor is nevertheless considered as such in the eyes of the law; and vice-versa.

Of all the divergences between legal and actual possession what is most notable is that outside the law
possession is used in an absolute sense whereas within the law it is employed in a relative sense.
Outside the law we do not speak of a person having possession as against someone else; we say that
he either has or has not got possession. Then unnecessary difficulties would arise in understanding
decisions. Like R. v. Harding in which the accused was held guilty of stealing a raincoat from a
servant, who as against master had mere custody of the goods. How could the servant in this case have
possession of the Raincoat, if the law used possession in an absolute sense, then of course servant
could not have had possession of it. As it is she had possession as against the thief but not against the
employer. Salmond then distinguished between possession of physical objects which he called
‘corporeal possession’ and possession of rights (intangible things), which he called ‘incorporeal
possession’

.Fredrick Pollock’s Theory: Pollock17 Said, ‘In common speech a man is said 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’. He laid stress not on ‘Animus’ but ‘de facto’ control (physical
control). For Pollock a general intent seems to suffice.

Holmes’ Theory: Holmes18 began promisingly by rejecting a priori philosophical idea. He also
perceived that fewer facts are needed to continue possession than to acquire it. It is not dissimilar to
that of Savigny and other Roman law jurists. He emphasized that to gain possession a man must stand
in a certain relation to the object and to the rest of the world and must have certain intent2.

TYPES OF POSSESSION

15
1945] KB 509
16
1963] 2 All ER 834
17
Pollock And White, Possession in the Common law
18
Holmes, The Common Law ch. 6
17 | P a g e
  Corporial and incorporeal possession- corporial possession is the possession of
material things like land , house buildings and movables like books , chattels etc. in the case of
corporial possession , the corpus consists firstly in confirming exclusion of others interference
and secondly in the enjoyment of the thing at will without external interference . Actual use of
thing is however , not necessary . thus a person may keep his watch locked in a safe for several
years without using it , he would therefore , consists not in dealing with the things but only in
the powers of dealing with it at will.incorporial possession on the other hand means possession
of immaterial things which we cannot touch see or perceive . the example are possession of
trademark , copyrights goodwill ,right of reputation . unlike corporial possession in case of
incorporeal possession ,actual continuous use and enjoyment is deemed essential condition
 Mediate and immediate possession-mediate possession is the possession of a thing
through other person .it is also known as indirest possession . for instance , if I purchase a
book through any agent or servant , I have mediate possession so long as the books remains in
agents or servants possession .

Salmond points out three categories of mediate possessionas follows:-

 Possession acquired through agent or servant

 Possession held through a borroweror a hirer to tenentwhere the res,i.e-the objects can be
demanded at will ; and
 Where the property is lent for a fixed period of time or delivered as security for the repayment
of debt

Immediate possession is also known as direct possession . if the relation between the possessor
and the and the thing possessed is direct one , it is called immediate possession . for example-if i
purchase a book for myself , i have immediate possession of it without any intervention of any
other agency

The English law does not recognise difference between immediate and mediate possession because at
a time one and only person can have possession

 Quasi Possession-The doctrine of Quasi possession is also known as possessio juris

extends to control which the person exercises over certain advantages , short of ownership,
which may be derived from objects . A right of way or passage over other’s land or perpetual
right of appointment of a beneficiaries etc .is an illustrations of quasi-possession , the rules for
which , are similar to that of possession properly so called

18 | P a g e
  Concurrent possession or duplicate possession – the English law explicitly holds
that two persons cannot be in possession of the same things at one and the same time. Thus
exclusiveness is the essence of possession because two adverse claims of exclusive use are not
capable of effectual realisation. It is however realised that there may be certain claims which
are not adverse and not therefore mutually destructive . such claims could be concurrently
realised . the concurrent possession is also called duplicate possession and salmond has
summarised it as follows:-
 Mediate and immediate possession may co-exist as in case of possession of servant
over his master’s things where the servant has an immediate possession and the master
has mediate possession
 Two or more persons may possess a thing in common just in case of co-owners . This
has been termed as compossessio in Roman law
 Corporeal and incorporeal possession may co-exist in respect of same material objects .
For examples , aperson may possess corporeal possession of a piece of land while
another may have the right of way on the same land which is incorporeal possession of
it.
 Constructive possession – constructive possession means having power and intention of
retaining control over property but without actual control or actual presence over it .
According to Pollock, constructive possession is a possession in law and not actual possession
It is a right to recover possession. For instance, the delivery of key of a warehouse may give
rise to constructive possession to the transferee of the key. However , Keeton does not
recognise this kind of possession because in his view the delivery of key is more than a
symbolic act , witnessing that possession has changed . The key is an instrument by which
control of the building or warehouse is received and therefore , with the keys goes the control
and consequently the possession .
 De Facto possession and De Jure Possession :

Possession in law is also known as dejure possession. It exists when a person claims a thing as
his own in a natural normal manner by occupying a thing without any dispute as to his legal
right to possess. Legal right may exist with or without possession. It is just possible that a man
may have ceased to live in a house but without intending to abandon it for good as the owner
of the house. Possession in Fact is also known as defacto possession. It exists when the thing is
in immediate occupancy of a person. The person has physical control of the thing to the
exclusion of others. And has animus and corpus over the material object. It is actual
possession, which can be held to be prima facie evidence of ownership. Of all the divergences
19 | P a g e
 between legal and actual possession what is most notable is that outside the law possession is
used in an absolute sense whereas within the law it is employed in a relative sense. Outside the
law we do not speak of a person having possession as against someone else; we say that he
either has or has not got possession

 Adverse possession-Adverse possession means 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 that land .If the adverse possession continued peacefully for a prescribed period the
title of the true owner is extinguished an dthe person in possession becomes the true owner of
that land

Three elements are deemed necessary for adverse possession are :-

1. Continuity
2. Adequate publicity
3. Peaceful amd undisturbed possession

POSSESSION UNDER INDIAN LAW

In ancient Indian law ,title to the land dependent upon personal possession of the land , katyayan
speaks of two kinds of possession , namely (1)possession with title (2)possession without title

A person not having title to possession could not claim the right of ownership Yajnavalkya smriti
contains a reference to the right of prescription wherein if a person allows his property being used by
another person uninterruptedly for a continuous period of twenty years but raises no objection to it ,
shall lose his ownership over that property gautam and narada purans also contains reference about
acquisition of ownership of property by uninterrupted continuous possession for twenty years in case
of immovable property and ten years of movable 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 Indian law however , does not
accept the distinction between possession and custody . Undoubtedly the concept has great role in
determining the rights and titles relating to properties . The right of possession has been protected
under section 145 of the code of criminal procedure, 1973 which provides as under:-

Section 145(1) : Whenever an executive Magistrate is satisfied from report of o police officer or upon
information that a dispute is likely to cause breach of peace exist concerning any land or water or
boundaries thereof within his local jurisdiction , he shall require the parties concerned in such dispute
20 | P a g e
to attend his Court and put in writing their respective claims regarding the facts of actual possession of
the subject of dispute

Sub section (4) further provides that the Magistrate shall peruse the statements so put in and hear the
parties and receive the evidence as may be produced to them , take further evidence , if any and decide
whether any and which of the parties at the date of the order made under sub section (1) was in actual
possession of the subjects of dispute.

The party so put in possession by the order of the magistrate shall be entitled to possession until
evicted therefrom in due course of law and forbid all disturbances of such possession until such
eviction .The Magistrate may restore possession to the party which was forcibly and wrongly
dispossessed.

C onclusion

Law in its early stages is fluid, and later a theory is invented as a means of rationalizing decisions that
have already been reached. It is therefore submitted that all that is needed are rules, which determine
what view should be taken of different situations of fact. It should serve as a warning against a priori
approach. Misquoting, misinterpretation and allegations of wrong decisions have been the result of
trying to force the law as it is into preconceived pattern. Thus, no single theory can explain
possession. Analysis reveals the influence of policy and convenience behind these rules (which
Ihering was quick to grasp). Corpus and animus are the conditions which the law generally requires
for the commencement of possession. Though, it is an answer but by no means the only one. Each
case therefore should be looked on its own merit. The question that whether possession is a matter of
fact or of law, is not clearly provided either in English or Roman law. According to Dias, Possession
has three aspects3:

a. The relation between a person and a thing is a fact,

b. The advantages attached by law to that relation is a matter of law,

c. These advantages when attributed to a person in any given type of case in a matter of law.

Bibliography
21 | P a g e
1. Dias, Jurisprudence

2. Prof. S. N. Dhyani, Jurisprudence – a study of Indian legal theory,

3. Salmond, Jurisprudence.

4. Dr. Gokulesh Sharma, An introduction to Jurisprudence.

5. Dr. Harris, The concept of possession in English Law, Oxford Essays on

Jurisprudence.

6. Markby, Elements of Law.

7. Class Notes by Dr. Asad Malik.

8. B.N. Mani Tripathi, Jurisprudence.

9. Pollock and Right, Possession in the Common Law.

10. Mullah, Principles of Mohammedan Law.

11. Abdur Rahim, Mohammedan Jurisprudence

22 | P a g e