1.4.

Concept of Possession
and Ownership

Dhruba Koirala
National Law College
Possession
Two fundamental rights received by a person over a
property are ownership and possession.
Primary evidence of ownership is possession.
However, ownership is the ultimate rights over
property.
The idea of possession came first in the minds of
people and it was later on that the idea of ownership
came into existence.
It is said that the concept of possession is derived
from the Roman law. As per them, for the thing so
possessed may, or may not, already belong to some
other person.
2
Possession…
If when possession of it is taken by the claimant, it is
as yet the property of no one - res nullius (ownerless
object) as the Romans said - the possessor acquires a
title good against all the world. For example: The fish
of the sea and the birds of the air belong by an
absolute title to him who first succeeds in obtaining
possession of them. This mode of acquisition is
known in Roman law as occupatio.
On the other hand, the thing of which possession is
taken may already be the property of someone else.

3
Possession…
Definition:
Salmond says, “the continuing exercise of a claim, to
the exclusive use of a thing constitutes the possession
of it”.
Henry Maine says “physical detention coupled with
the intention to hold the thing detained as ones own”.
Pollock says, “in common speech a man is said to
possess or be in possession of anything which he has
the apparent control, or from the use of which he has
the apparent power of excluding others”.

4
Possession…
Muluki Dewani Sanhita: section 268: Possessory
right to be deemed: Where a person holds any
property with him/her with intention to possess the
property in accordance with law, he/she shall be
deemed to have possessory right over the property.
ef]uflwsf/ /x]sf] dflgg]M s;}n] s'g} ;DklQ ef]u ug]
{ dg;fon] sfg"g adf]lhd cfkm";Fu /fv]df ;f] ;DklQdf lghsf]
ef]uflwsf/ /x]sf] dflgg]5 .

5
Possession…
 Under the definition given by Muluki Dewani Sanhita
(Civil Code), there must be these two elements for
possessory right:
a. Intention to possess the property: In general term,
intention means desire or willingness of mind. Thus
for possession the person must have intention to gain
physical control or possession over the property.
b. Possession must be according to property law: This
creates physical link between possessor and the
property. Illegal control of the property shall not be
considered possession.

6

Possession…
It means there is a lack of completely logical definition of
possession uniformly applicable to all. However, in sum, we can
say that the position of having, owning, or controlling something
is called possession. The term possession expresses the physical
relation of control exercised by a person over a thing.
Muluki Dewani Sanhita, section 269: Acquisition of possessory
right: ef]uflwsf/ k|fKt ug{ ;lsg] cj:yfM A person may acquire the
possessory right over any property in the following
circumstance: b]xfosf] cj:yfdf s'g} ;DklQ pk/ ef]uflwsf/ k|fKt ug{
;lsg]5 M
a. In the capacity of the owner thereof, :jfldTjjfnfsf] x}l;otn],
b. Acquiring the property owned by another person in accordance
with law, cGo JolQmsf] :jfldTjdf /x]sf] ;DklQ sfg"g adf]lhd k|fKt
u/]/,

7
Possession…
c. Obtaining consent of the possessor of such property.
ef]uflwsf/jfnfsf] ;xdlt lnO{ .
 However, only the possessory right acquired peaceably, openly
or in bona fide shall be deemed to have been acquired lawfully.
c;n dg;fo, zflGtk"0f{ jf v'nf ?kdf k|fKt u/]sf] ef]uflwsf/nfO{ dfq
sfg"gL ?kn] ef]uflwsf/ k|fKt u/]sf] dflgg]5 .
 Muluki Dewani Sanhita, section 271: Rights of Possessor:
ef]uflwsf/jfnfsf] clwsf/ M Generally, the possessor, shall have
following rights, subject to the laws:
(a) To uninterruptedly possess the property in his/her possession,
subject to the laws in force, or the contract, if any, entered into
in relation to that property, cfkm\gf] ef]udf /x]sf] ;DklQ k|rlnt
sfg"g jf ;f] ;DklQsf ;DaGwdf s'g} s/f/ ePsf] eP ;f] s/f/sf] cwLgdf /xL
lgjf{w ?kdf ef]u ug{,
(b) To use any benefits of the property in his/her possession.
cfkm\gf] ef]udf /x]sf] ;DklQaf6 k|fKt x'g] h'g;'s} nfe pkef]u ug{
8
 Possession…
Muluki Dewani Sanhita, section 272: Circumstances
where possessory right is lost: ef]uflwsf/ ;dfKt x'g]
cj:yfM
a. If the person abandons the property, lghn] ;DklQ kl/Tofu
u/]df,
b. If the person transfer the property, lghn] ;DklQ x:tfGt/0f
u/]df, jf
c. If the property is totally destroyed or become useless.
s'g} ;DklQ k"0f{?kdf gi6 ePdf jf a]sDdf ePdf .

9
 Possession…
Adverse Possession:
A thing owned by one person and thus adversely possessed
by another has in truth two owners.
Adverse possession is wherein by physically occupying it for a
long period of time. One may acquire property without the
consent of the actual title holder if one possesses it long
enough and meets the legal requirements. It is one kind of
involuntary transfer of ownership rights in property.
Under the doctrine of adverse possession, the true owner of a
piece of land, cannot bring an action to eject someone who
has actually possessed the property for a certain period of
time.

10

Possession…
Muluki Dewani Sanhita, section 273: Adverse possessory right
to be deemed: k|lts"n ef]uflwsf/ /x]sf] dflgg]M Where any
person has possessed any property or land owned by any one
else since more than three years ago in the case of movable
property and thirty years ago in the case of land as if the
property or land were owned by him/her, that person shall be
deemed to have adverse possessory right over such a property or
land. s'g} JolQmn] csf]{ JolQmsf] rn ;DklQsf] xsdf tLg jif{ / hldgsf]
xsdf tL; jif{eGbf a9L ;dob]lv ;f] ;DklQ jf hldg cfk\mg} ;DklQ jf
hldg ;/x ef]u u/]df To:tf ;DklQ jf hldgdf lghsf] k|lts"n ef]uflwsf/ /x]sf]
dflgg]5 .
No adverse possessory right may be acquired over a government,
public, community or trust land despite the length of the period
of possession. ;/sf/L, ;fj{hlgs, ;fd'bflos jf u'7Lsf] hUufdf hlt;'s}
cjlw;Dd ef]u u/]sf] eP tfklg k|lts"n ef]uflwsf/ k|fKt x‘Fb}g .
11
 Possession…
Likewise, where possession is acquired forcefully or by doing
any action secretly or without knowledge of the possessor of
any property or land, no adverse possessory right may be
acquired. tfklg :jfldTjjfnfsf] hfgsf/L ljgf, uf]Ko ?kdf jf ha/h:tL
s'g} rn ;DklQ jf hldg ef]u u/]sf]df k|lts"n ef]uflwsf/ k|fKt x‘Fb}g .

12
Concept of Ownership
A person owning a movable or immovable property is owner.
Thus, the right, by way of which a owner owns the property,
is called the ownership. s'g} rn jf crn ;DklQsf] wgLnfO{ :jfdL
jf :jfldTjjfnf elgG5 . t;y{ h'g clwsf/sf] dfWodåf/f :jfdLn]
;DklQnfO{ cfk\mgf] agfpF5, To; clwsf/nfO{ :jfldTj dfGg'kb{5 .
Under ownership, the owner retains all authority over the
property including enjoyment of the property according to
his wish and under law or abandonment of the property.
Property cannot be without an owner. Till the existence of
the property, ownership shall remain existed.
After the death of owner, the ownership shall be transferred
to successor. Thus, the ownership over property shall remain
perpetual.
Definition of Ownership
Muluki Dewani Sanhita, section 266: Where any person
acquires the right in any property in accordance with
law, his/her ownership in that property shall be
deemed. s'g}klg JolQmnfO{ s'g} ;DklQdf sfg"g adf]lhd xs
k|fKt ePdf To:tf] ;DklQdf lghsf] :jfldTj /x]sf] dflgG5 .
Jurists have defined ownership in different ways. All of
them accept the right of ownership as the complete or
supreme right that can be exercised over anything.
Fredrick Pollock: Ownership is the entirety of the
power of use and disposal allowed. pkof]u ug]{ Ifdtf tyf
rng÷x:tfGt/0f ug]{ Ifdtfsf] ;Dk"0f{tf g} :jfldTj xf] .
Contd…
Austin: Ownership as ‘a right indefinite in point of user,
unrestricted in point of disposition and unlimited in point
of duration’. pkof]ustf{sf] b[li6sf]0faf6 clwsf/sf] clglZrt,
rng÷x:tfGt/0fsf] b[li6sf]0faf6 clgolGqt / ;dofjwLsf] b[li6sf]0faf6
cl;ldt .
 By the right of indefinite user Austin means that the owner of the thing
is free to use or misuse the thing in a way he likes. The owner of a land
may use it for walking, for building house or for gardening and so forth.
 What Austin implies by unrestricted disposition is that the power of
disposition of the owner is unhampered by law meaning thereby that he
is absolutely free to dispose it to remove it to anyone.
 What Austin implies by this is that ownership of a person can not be cut
short and the owner can continue to be the owner as long as he likes.
(CF: Nomita’s book)
Contd…
Holland: Austin’s definition has been followed by
Holland. He defines ownership as plenary control
over an object. j:t'dflysf] k'0f{ clwg .
According to him an owner has three rights on the
subject owned:
1. Possession ef]uflwsf/
2. Enjoyment pkef]u
3. Disposition rng÷gi6÷x:tfGt/0f
Kinds of Ownership
Sole and co-ownership Psn tyf ;x :jfldTj
Vested and contingent ownership k|bQ tyf zt{o'Q
Absolute and limited ownership k'0f{ tyf l;ldt
Corporeal and incorporeal ownership d't{ tyf cd't{
Legal and equitable ownership sfg'gL tyf ;dGoflos
Trust and beneficial ownership u'7L tyf lxtflwsf/L
Contd…
Sole and co-ownership: Psn tyf ;x :jfldTj . When the
ownership is vested in a single person, it is called
sole ownership; when it is vested in two or more
persons at the same time, it is called co-ownership.
For example, the members of a partnership firm are
co-owners of the partnership property.
Contd…
Vested and contingent ownership: k|bQ tyf zt{o'Q .
It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when
the title of the owner is yet imperfect but is capable
of becoming perfect on the fulfillment of some
condition. In the case of vested ownership,
ownership is absolute. In the case of contingent
ownership, it is conditional.
Contd…
Absolute and limited ownership: k'0f{ tyf l;ldt . An
absolute owner is the one in whom are vested all
the rights over a thing to the exclusion of all. When
all the rights of ownership, i.e. possession,
enjoyment and disposal are vested in a person
without any restriction, the ownership is absolute.
But when there are restrictions as to user, duration
or disposal, the ownership is called limited
ownership.
Contd…
Corporeal and incorporeal ownership: d't{ tyf cd't{ .
Corporeal ownership is the ownership of a material thing
and incorporeal ownership is the ownership of a immaterial
thing. Ownership of a house, a table or a machine is
corporeal ownership. Ownership of a copyright, a patent or
a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected
with the distinction between corporeal and incorporeal
things. Incorporeal ownership is described as ownership
over intangible things. Corporeal things are those which can
be perceived and felt by the senses and which are tangible.
Incorporeal ownership includes ownership over intellectual
objects which can not be perceived and can not be felt by
the senses.
Contd…
Legal and equitable ownership: sfg'gL tyf ;dGoflos . There is
no distinction between legal and equitable ownership in
Nepal. In Nepal, a trustee is the legal owner of the trust
property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the
trustees to compel them to carry out the provisions of the
trust.
Legal ownership is that which has its origin in the rules of
common law and equitable ownership is that which
proceeds from the rules of equity. In many cases, equity
recognizes ownership where law does not recognize
ownership owing to some legal defect. One person may be
the legal owner and another person the equitable owner of
the same thing or right at the same time.
Contd…
Trust and beneficial ownership: u'7L tyf lxtflwsf/L . Trust
property is that which is owned by two persons at the
same time. The relation between the two owners is such
that one of them is under an obligation to use his
ownership for the benefit of the other. The ownership is
called beneficial ownership. The ownership of a trustee is
nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship
between the two owners is such that one of them is under
an obligation to use his ownership for the benefit of the
other. The former is called the trustee and his ownership
is trust ownership. The latter is called the beneficiary and
his ownership is called beneficial ownership. ………………..
Contd…
A trustee has no right of enjoyment of the trust property.
The trustee has to use his power for the benefit of the
beneficiary who is the real owner.
Characteristics of Ownership
From above written concept of ownership, jurist view
and kind of ownership, we find the following
characteristics:
1. Ownership is a right over the thing to the exclusion of
all other persons.
2. Though there are various kinds of ownership, in sum
we can say that it may either be absolute or restricted,
that is, it may be exclusive or limited. Ownership can
be limited by agreements or by operation of law.
3. An owner is not allowed to use his land or property in a
manner that it is injurious to others. …………………
Characteristics of Ownership
4. Restrictions may also be imposed by law on the
owner’s right of disposal of the property owned.
5. The rights relating to ownership are subject to the
state law. For example: the right of ownership can
be restricted in time of emergency.
6. The owner has a right to posses, enjoy and dispose
the property that he owns according to the law.
7. The right to ownership does not end with the death
of the owner; instead it is transferred to his heirs.
8. Etc.
Nepalese Context
In Nepal Law, concept of ownership is old one.
However, ownership had not been defined in Nepal law
clearly. The Muluki Dewani Sanhita has been defined
clearly for the first time. Before, court used to decide in
this matter in cases.
Muluki Dewani Sanhita, section 266: Where any person
acquires the right in any property in accordance with
law, his/her ownership in that property shall be
deemed. s'g}klg JolQmnfO{ s'g} ;DklQdf sfg"g adf]lhd xs
k|fKt ePdf To:tf] ;DklQdf lghsf] :jfldTj /x]sf] dflgG5 .
Subject matter of Ownership
Muluki Dewani Sanhita, section 267: Right of an owner
:jfldTjjfnfsf] clwsf/ x'g]M: Subject to laws, a person, in
capacity of the owner of any property, shall have the
following right in that property:
a. To use the property, ;DklQ pkef]u ug{,
b. To sell or otherwise transfer the title to the property, ;DklQ
laqmL jf cGo tj/n] s;}nfO{ xs x:tfGt/0f ug{,
c. To mortgage or pledge the property in any manner,
;DklQsf] s'g} lsl;dn] jGwsL jf lwtf] /fVg,
d. To deal in the property, ;DklQsf] s'g} sf/f]af/ ug{,
e. To take the profits of the property in any manner
whatsoever, ;DklQaf6 h'g;'s} lsl;daf6 kmfObf lng, =========
Contd…
f. To make any kind of physical construction, wall or fence or
delimit boundary, in his/her land, or change the form of
any property or otherwise protect it, cfkm\gf] hUUff hldgdf
s'g} lsl;dsf] ef}lts ;+/rgf lgdf{0f ug{, kvf{n jf af/
nufO{ 3]g{ jf ;fFw ;Ldfgf 5'6\ofpg jf s'g} ;DklQsf] :j¿k kl/jt{g
ug{ jf s'g} klg lsl;dn] ;DklQsf] ;+/If0f ug{,
g. To use his/her land or part below its surface or goods
therein or sky above its surface, cfkm\gf] hldg jf hldgd'lgsf]
efu jf ;f]df /x]sf] j:t' jf hldg dflysf] cfsfz k|of]u ug{,
h. To discharge or liquidate or terminate the property by any
manner, ;DklQ s'g} tj/n] gi6 jf ;dfKt ug{ .
i. To institute legal action in any manner in relation to the
acquisition or security of the property. ;DklQ k|fKt jf ;'/Iff
ug]{ ;DaGwdf s'g} klg lsl;dn] sfg"gL sf/afxL rnfpg .
30