POSSESSION

Dr. Parmila Dhiman

Asst. Prof.
KES’ Shri. J.H.P Law College
Content Credit: Dr. N.V Pranjape
Possession- 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 acquisition and loss of possession.

 Possession, for example, is prima facie evidence of ownership. Usually

the presumption is that the possessor 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 possession of

that thing. Even a person who wrongfully possesses a property, has a good title
against the world at large except the true owner.
Contd…
 Again, a person derives a good title from a possessor even though the
possessor himself has none; just as when a person obtains a bank-note from a
thief. It may, however, be stated that if the person who obtains the bank-note
knowing that it is a stolen one, in that case, he commits an offence of receiving
stolen property under Section 410 of the Indian Penal Code which is punishable
under Section 411 of the said Code.

 Possession is an important condition in the acquisition of ownership. Law

relating to pledge provides that the possession of thing pledged constitutes
creditor's security without any presumption of ownership.
Why law protects Possession?
1. The principle as incorporated in Section 110 of the Indian Evidence Act makes it
clear that possession being the prima facie evidence of ownership, continuous long
Possession is deemed sufficient to confer ownership to the person in possession. In
other words, the person in possession of a thing is deemed to be the owner of it unless
someone else proves a better title than him.

Section 110 of the Indian Evidence Act reads as under "110. Burden of Proof as
to ownership- 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 he is not the owner is on the
person who affirms that he is not the owner.”
Contd…

2. Possession provides a ground for possessory remedies which protect the right of
the person in possession. In other words, long adverse possession confers title even to
property which originally belonged to another.

3. Possession is deemed as one of the essential conditions for acquiring ownership

and it is prima facie evidence of ownership.

4. Transfer of possession is one of the chief modes of transferring ownership.

5. The first possession of a thing which belongs to no one, res nullius, confers a good
title of right over that thing.
Contd..
6. The possession of a thing by a creditor as a pledge serves as a good security for
repayment of the debt.

7. The difficulty of the proof of ownership also accounts for legal protection to
possession because it is relatively easy to prove possession. Many writers, however, do
not accept this reason.

8. A defendant is always at liberty to rebut this presumption by proving that the better
title is in himself. Again, a defendant who interferes with the possession of the plaintiff
is not allowed to set up the defence of just tertii, i.e., the title of a third person.
Definition of ‘Possession’

Meaning of the term 'Possession' Jurists have defined possession according

to their own notions. Pollock, 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. The former is mental element called as animus possessionis
and the latter is physical element known as the corpus possidendi.
Possession in Fact

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
over 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 parrot escapes
from the cage or set free, he would lose possession over it.
Contd…
Certain points regarding possession in fact must be carefully noted. 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 peg 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.
Contd…

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 this 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
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:

1. By conferring certain legal rights on the possessor;

2. by penalising the persons who interfere with the possession of 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 cases 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 object.
Elements of Possession
According to Holland, legal possession has two essential elements, namely,

(1) corpus, and (2) animus.

Savigny also supports this view and considers corpus possessionis and animus domini
as the two essential requisites of possession.

In his view, corpus possessionis means effective control over the thing which in other
words means exclusive use of the thing with capacity to eliminate the interference of
others. By animus domini, Savigny contends intention to hold the thing as an owner of
it. Both these elements are considered necessary for legal possession.
Corpus Possessionis
Corpus Possessionis implies two things, namely, :
(i) Possessor's physical relation to the res, i.e., the object; and

(ii) the relation of the possessor to the rest of the world.

The first point emphasises that there must exist some physical contact of a person
with a thing which he possesses so as to give rise to a reasonable assumption that
others will not interfere with it. The physical control of the possessor over a thing
implies that others will not interfere with possessor's right to use or enjoyment of
that thing.
Contd…
The assurance of non- interference can be secured in any of the following
ways:
(i) Physical power of the possessor: The physical power of the possessor over the
thing in his possession acts as a guarantee of user of that thing. It is also an
assurance against the non-interference of others in the right of his possession. The
person in possession generally uses walls, gates, doors, locks etc. to exclude others
from interfering with his legal possession.
(ii) Personal presence of the possessor: In many situations mere physical presence
of the possessor is enough to retain possession although he may not have the
necessary physical strength to resist interference. For example, a coin in a child's
hand is sufficient to denote his possession over the coin although he does not have
the physical strength to retain the coin.
Contd…
(iii) Secrecy.-If a person keeps a thing which is in his possession in a hidden place,
it is an effective mode of excluding external interference and keeping that thing
secured.
(iv) In modern societies wrongful possession is not deemed with favour, therefore
respect for rightful claim prevents others from interfering with the legal possession
of the possessor.
(v) Protection afforded by the possession of other things.-At times possession of an
object tends to confer possession of certain other things which are connected with it
or accessory to it. Thus, possession of land confers possession of things that are on
or under it.
Animus Possidendi
Mere juxtaposition is not possession. It must indicate some possibility of
physical control accompanied by a 'will' to exercise such control. This mental
element in possession constitutes animus.

The subjective or mental element in possession is called animus possidendi

which implies intention to appropriate to oneself the exclusive use and enjoyment of
the thing possessed. It is the conscious intention of the possessor to exclude others
from interfering with his right of possession. Holland pointed out that apart from the
physical power to deal with the thing, the possessor must also have a will to
exercise such control.
 Contd…
The following points need special consideration in context of the element of animus
in legal possession :
(i) The animus or desire to possess need not necessarily be rightful, it may even be
consciously wrongful. A thief has a possession of stolen things no less real than the
true owner of those things.
(ii) The possessor must have exclusive claim over the thing in his possession. That
is, he must intend to exclude others from use and enjoyment of that thing. The
exclusion, however, need not be absolute. For example, a person shall still be
deemed to be in legal possession of land notwithstanding the fact that some other
person or public at large, may possess a right of way over that land.
Contd..
(iii) The animus need not amount to a claim or an intention to use the thing as
owner. Thus, in case of a pledge, the pledgee has the possession of the thing
pledged although he only intends to retain it in custody as a security to ensure
repayment of his debt.
iv) The animus need not be necessarily that of the possessor himself, e.g., a
servant, agent, trustee or a bailee does not keep things in possession for his own use
but holds them for some other person.
(v) The animus may not be specific, instead, it may be merely general. For instance,
a person who has caught fishes in his net has possession over all of them although
he does not know their exact number. Likewise, a person is deemed to be in
possession of all the books in his library although he may not even know about the
existence of some of them.
Kinds of Possession

Possession may be of many kinds. It may either be corporeal or incorporeal; mediate or

immediate, constructive possession, adverse possession and so on.

1. Corporeal and Incorporeal Possession: Corporeal possession is the possession of material

things like land, house, buildings and movables like books, chattels etc. In the case of
corporeal possession, the corpus consists firstly in confirming exclusion of other's
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 nevertheless be deemed to be in possession
of it. The corporeal possession therefore, consists not in dealing with the thing but only in the
dealing with it at will.
 Incorporeal possession, on the other hand, means possession of immaterial
or intangible things which we cannot touch, see or perceive. The examples are
possession of a copy-right or a trade mark or a right of reputation, goodwill etc.
Unlike corporeal possession, in case of incorporeal possession, actual continuous
use and enjoyment is deemed as an essential condition. The reason being that in this
case, power of exercising the possession at will is not visible as an objective fact
because of its incorporeal nature. Therefore, exercising it at will can be known only
when it is actually being used. In brief, continuous non-user may give rise to the
extinction of the right of incorporeal possession.
2. Mediate and Immediate Possession

Mediate possession is the possession of a thing through another person. It is also known as

indirect possession. For instance, if I purchase a book through any agent or servant, I have

mediate possession so long as the book remains in my agent's or servant's possession. Salmond

points out three categories of mediate possession as follows:

(1) Possession acquired through an agent or servant;

(2) Possession held through a borrower or hirer to tenant where the res, i.e., the object can be

demanded at will; and

(3) Where the property is lent for a fixed period of time or delivered as security for the

repayment of a debt.
3. Quasi-Possession

The doctrine of quasi-possession 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 is
an illustration of quasi possession, the rules for which, are similar to that of
possession properly so called.
4. Concurrent Possession or Duplicate Possession

The English civil law explicitly holds that two persons cannot be in possession of
the same thing 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 are 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:

(1) 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.
Contd…
(2) Two or more persons may possess a thing in common just as in case of
co-owners. This has been termed as compossessio in Roman law.

(3) Corporeal and incorporeal possession may co-exist in respect of the

same material object. For example, a person 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.
5. Adverse Possession

Adverse possession implies 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 adverse possession continues peacefully undisturbed for a prescribed period, the

title of the true owner is extinguished and the person in possession becomes the true owner of

that land. Three elements are deemed necessary for establishing adverse possession,

namely, (1) continuity, (2) adequate publicity, and (3) peaceful and undisturbed possession

for prescribed period. In short, to be adverse, possession must be actual, exclusive, and

adequate in continuity and publicity and the exercise of possession should be without

violence and without permission.

Modes of Acquisition of Possession

Modes of Acquisition of Possession Possession is acquired whenever the two

elements of corpus and animus are existent and the loss of either of these elements
will usually tend to destroy possession. There are three known modes of acquiring
possession which are as follows:

(1) By taking.

(2) By delivery.

(3) By operation of law.

1. Taking: Taking is the acquisition of possession without the consent of the previous
owner. Taking may either be rightful or wrongful. It is not necessary that the thing taken
in possession must necessarily be already in possession of any previous owner.

2. Delivery: When a person acquires possession with the consent or co-operation of the
previous owner, it is known as acquisition of possession by delivery.

3. Operation of Law: Possession may also be obtained by operation of law. For

example, if a person dies, the possession of his property is transferred to his successors
and legal heirs. It may be noted that long, continuous and uninterrupted adverse
possession for a period of twelve years extinguishes the claim of title of the true owner
and adversary's adverse claim is established.