Ownership and Possession: Distinction

Possession is a relation of a person to an object which law recognizes as

has been trcated as an external evidence of ownership. According to Ihering. possession. It
is the obicctive realization of ownership. Ownership is a relation of a person to possession
an obiect
which is exclusive or absoluteand ultimate. it may be noted that possession isprima fucie
evidence of ownership only in certain situations.
Salmond makes a distinction between the two on the basis of fact and riohs
*Possession is in fact what ownership is in right. Possession is the de facto exercise of
aclaim; ownership is the de jure recognition of the facts". For example, a
rented house
is actually in poSsession of the tenant, but the ownership of it is vested in that of
the
landlord. A claim to possession may be maintained by one's self-asserting will but a claim
to ownership is legally protected by the will of the State.
It is submitted that a distinction on the basis of fact and
right is not tenable. To say
that one is fact and other is right is misleading. Though there may be a
degree, both the things (fact and right) are present in both the concepts. Salmonddifference of
out that ownership has the guarantee of law but
pointed
possession has Some measure of security
and value from the facts, without any possibility of support from
law.
The separation of possession and ovwnership is an exceptional incident, due to
accident, wrong or the special nature of the claims in question. Possession without
ownership is like body without soul' (Dr. Sethna). The two things stand mutually to
coincide. Ownership strives to realize itself in possession and possession
endeavours to
justify itself as ownership. Salmond pointed out that the law of prescription determines
the process by which through the influence of time, possession without title ripens
into
ownership and ownership without possession withers away and dies,"
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 and vice versa. There
are, however, certain exceptions to this general principle. Man may possess
copyrignb
trademarks and other forms of monopoly though law may refuse to defend the sanie.
 which can be owned but not possessed, e.g. right of the creditor
torecover his debt. A right in rem can both be owned and possessed but a right in
Nrsonam can be owned but it cannot be possessed.
The rights of poSsession and owmership are substantially the same. Howeve,
possession
msession and ownership differ in their mode of acquisition. The transfer of
ownership in most cases
is comparatively easier and less technical, but the transfer of
concept and
involves a technical process of conveyancing. Lastly, possession is a juridical
also a social concept
an instrumnent of judicial policy. Ownership is more than that; it is
and an instrument of social policy.
Ownership -Whether Best Right to Possess?
segregated into two parts: Possession in fact and Possession in law. As
Possession can be
ownership, it cannot be segregated into two parts of fact and law. It is always a
regards
of law and factual ownership can only mean to have the possession of the subiject
matter person who is entitled
best available at all times with the
matter. Right to possession is the subject matter. Thus, in case of a
not to the owner of
to possession in law and best right to possess lies with the
mortgagor whereas the
mortgage, the owner is the very essence of distinguishing
this is the
mortgagee at a particular point of time and
between ownership and possession.
not and should not be confused with the right to possession.
Thus, oWnership is it and possession may be one of those
contains a bundle of rights with
Though ownership absence of the right of possession.
only right and even in the
Tights but it is not the to be correct to say that ownershbip
Though, superficialy it seems
OWnership may exist. be not foolproof for various reasons.
technically it seems to
Is "the best right to possess",