Reading Material-III

Possession
According to Salmond, in the whole range of legal theory, there is no conception more difficult
than that of Possession.  Possession is the most basic relation between man and a thing.
Possession is an evidence of ownership. 
1) Meaning:
          "Possession" literary means physical control over a thing or an object. It expresses the
closest relation of fact that can exist between a thing and the person, who possess it. In law,
possession means it includes not only physical control over a thing but also an intention to
exercise that physical control. Example: A has an article in his hand. In other words, he is in
possession of that article. The person who is in possession is called a 'Possessor'. In human life,
consumption of material things is very essential and it would be Impossible without the position
of the material things. Therefore, the concept of possession is of utmost practical importance in
human life.
2) Definition:
              The concept of possession is though basic and essential in human life, it is a difficult to
define. There is no fixed or precise definition of possession because it is legal as well as factual
concept. Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR
1980 SC 52, held that it is impossible to work out a completely logical and precise definition of
Possession uniformly applicable to all situation in the context of all the statutes.
It is very difficult to define the term Possession. Some Jurists have given different definitions.

John Salmond:
              Salmond defines Possession as, "possession is the continuing exercise of a claim to the
Exclusive use of an object."
Savigny:
                 Savigny defines Possession as, "intention coupled with physical power to exclude
others from the use of material object.
                 Salmond criticized Savingy's definition and ground that Savingy committed an
error by including the element of physical power in his definition. 
 O.W. Holmes: 
               Holmes defines Possession as, "To gain Possession a man must stand in a certain
physical relation to the object and to the rest of the world, and must have certain intent."

 Maine: 
                   Maine defines the possession as, "physical detention coupled with the intention to
hold the things detained as one's own. 
Sir Frederick Pollock:
                   Sir Frederick Pollock defines Possession as, "In common speech a man is said to
possess to be in possession of anything of which he has the apparent control from the use of
which he has apparent power for excluding others." 
Ihering:
                   The best among them is the definition given by Ihiring. According to him,
"whenever a person looked like an owner in relation to a thing, he had possession of it unless
Possession was denied to him by rules of law based on practical convenience."

3) Elements of Possession 
       From the above definition we could see in that possession has two essentials -   

1) Actual power over the object possessed. i.e. corpus possessionis; and

2) Intention of the possessor to exclude any interference from others. i.e. animus possidendi.
        According to John Salmond, both corpus and animus must be present to constitute
Possession. Ownership is a legal concept whereas Possession is factual as well as legal concept. 

  The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman Law.
4) Categories of Possession:   Possession is divided into two categories. 
                a) Possession in fact and 
                b) Possession in law.
         Possession in fact is actual or physical possession. It is physical relation to a thing.
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 position
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.
6) Modes of acquiring possession:
There are two modes of acquiring possession i) Delivery and ii) Possession.
i) Delivery: Delivery completes voluntary act from one person to another. The transferor gives
actual position to the transferee. It is usually a lawful mode of possession. Delivery may be
actual of constructive. In actual delivery the thing is physically delivered.
ii) Taking: Taking implies an Act exclusively on the part of the person who physically takes the
Possession. It is acquisition of the Possession without the consent of previous Possessor. It is the
possession without the consent of the Possessor. Sometimes it is said to be unilateral act.
Transferee acquires the possession without the knowledge or consent of the former Possessor of
the thing. It is usually possessio-civilis. It may or may not be lawful. If it is lawful then it is legal
possession. i.e. possessio-juri.
7) Possessory Remedies:
             Possessory Remedies are those which exists the protection of Possession even against
ownership. Proprietary remedies are those which are available for the protection of ownership. In
many legal systems, possession is provisional or temporary title even against the true owner.
Even a wrongful Possessor who is deprived of his possession can recover it from any person
whatsoever on the ground of his possession. Even the true owner, who retakes his own, must
first restore possession to the wrongdoer and then proceed to secure a possession on the ground
of his ownership. 
8) Relevant case law:
a) Elves v. Brigg Gas Co. 1886 Chancery Division.
Fact:
            In this case the plaintiff was the owner of the land. He gave his land to defendant
Company on lease for the purpose of excavation and erection of gas works thereon. During the
course of excavation one of the man of the defendants Company found a pre-historic boat buried
6 feet below the surface.
Issue:
            Issue before the Court was whether the boat belonged to the landlord or lessee.

Held:
            J. Chitty observed that the landlord was entitled to the boat against the Company though
it was discovered by the Company. It was observed that it was immaterial that the landlord was
not aware of the existence of the boat. He was in possession of the ground not merely of the
surface. Hence everything that lay beneath the surface down to the center of the earth
consequently in possession of the boat. It did not matter that the plaintiff was not aware of the
existence of the boat.
b) South Staffordshire Waterworks Co. V. Sharman, 1896.
 Fact:
            In the instant case Plaintiff Company appointed defendant servant to clean out a pond
upon their land and in doing so he found certain gold ring at the bottom of it. Dispute arose
between plaintiff Company and the defendant servant as to the possession of the gold ring.

Issue: 
           To whom the Gold ring belong?
Held:
            The plaintiff Company was in first possession of the gold ring and is not the defendant,
who acquired no title to them. It was observed that the possession of land carries with it in
general possession of everything which is attached to or under the land.
Conclusion:
             Possession is the most basic relation between man and a thing. Possession is prima
facie a proof or an evidence of ownership there is no fixed or precise definition of possession
because it is legal as well factual concept. The four essentials of possession are subject matter
of possession, physical control, intention and knowledge. Possession is nine points in law and
law provides remedies to person having possession.

Kinds of Possession
The institution of property has indispensable relationship with the mankind. There are two
important rights related to property namely i) ownership and ii) possession.
         Possession is an evidence of ownership. It is very difficult conception of utmost practical
importance in legal theory.
Following are the important kinds of possession. 

1) Corporeal Possession:
Those things, which are having physical or material existence, wherein direct relationship with
the thing, are possible.  for example,  House has physical existence which can be perceived by
our senses. The possession in the house therefore is Corporeal Possession. Therefore corporeal
possession is the possession of material things, movable as well as immovable such as the Car ,
book , pen, wristwatch, etc.
2) Incorporeal  Possession :
                    It means Possession of immaterial or intangible things. These are the things, which
do not have physical existence and therefore cannot be perceived by our senses. Therefore
possession in respect of this thing is known as incorporeal possession. for example - Copyright,
Trademark, Patent, Goodwill  etc.
                    According to Salmond, corporeal possession is Possession of an object whereas
incorporeal possession is the possession of a right.
3) Mediate Possession :
                    It is the Possession of a thing through another, either through his friend, servant for
agent. As the thing remains, in possession with another, the possessor has lesser degree of
physical control over such thing. 
Illustration :

a) 'X' has a car, which he leaves with his driver. The possession of the driver will be immediate
whereas the Possession of 'X' will be mediate. 
b) 'A' purchased a house through his agent and the agent got the possession. A's possession is
said to be the mediate possession.
4) Immediate Possession :
                   It is also called as Direct Possession.  Direct or primary possession by a person over
a particular object, which acquires or gets directly or personally. In immediate possession, as the
thing is in possession of the possessor directly, he has higher degree of control over such thing. It
means that there is no other person holding the thing. 
Illustration : 

            a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.
            b) 'A' purchased a house and takes Possession of the property it is called direct or
immediate Possession.
5) Constructive Possession :
                Constructive possession is not actual  possession it is a possession in law and not
possession in fact. According to Pollock and Wright, it is a possession which arises only by the
construction of law. 
Example :  The delivery of the keys of a building.
6) Adverse Possession :
                It means holding the land on his own behalf of some other person. if adverse
possession continues peaceful and undisturbed for that number of years, he can claim ownership
and the true owner's right( ownership) gets extinguished.
7) De facto Possession :
                De facto Possession exists where the thing is in the immediate occupancy of a party.
The person in de facto possession has the physical control of the thing to the exclusion of others
and has Animus and Corpus over the material object. De facto possession may be described as
actual Possession.
8) De jure Possession : 
               De jure possession can be described as posssession in law. De jure possession exists
when person claims a thing as his own in natural normal legal manner by occupying a thing
without any dispute as to his legal right to possess and enjoy the thing. Legal possession may
exist with or without property in possession. In case of De jure possession it is just possible that
a man I have ceased to live in a house but without intending and to abandon it for good as the
owner of the house.

Why Law Protects Possession

The possessor has better title against the whole world, except true owner. Even if
the possession is wrongful, the possessor if deprived of wrongfully, he is protected by law
providing for possessory remedy.
There are many reasons for the  protection of possession

1) According to the philosophical School of jurists, possession is protected because a man

by taking possession of an object has brought it within the sphere of his will. The freedom
of the will is the essence of personality and has to be protected so long as it does not
conflict with the universal will which is the State. As possession involves an extension of
personality over the object, it is protected by law. As the reputation of a person he is
protected against defamatory attack, his possession is protected as he has projected his
Personality over the object possession. 

2) Possession is an Evidence of ownership, Section 110 of Indian Evidence Act 1872-

Provides ' when any 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 owner is on the person
who affirm that he is not the owner.

3) The possession even if it is wrongful is a good title against the whole world except the
true owner. 

4) Possession is protected for the preservation of peace: It is the natural human Instinct
that he does not easily part of with what he possesses. The interference with the
possession leads to violence. Thus the protection is given to the Possession to aid criminal
law and it prevents a breach of peace.

5) Section 145 of CrPC deals with the dispute of immovable property to provide speedy
remedy for the prevention of breaches of peace out of such dispute. The object of this
section is to enable an executive Magistrate to intervene and pass a temporary order in
regard to the possession of the property in dispute, till the competent civil court
determines the right of the parties. The executive Magistrate shall determine the
possession of immovable property on a particular date and issue an order declaring such
party to be entitled to Possession, thus restore to Possession to the party who was forcibly
and wrongfully dispossessed of.

6) Possession is protected as a part of law of tort. Law protects possession not only from
disturbance by force but from disturbance by fraud. The protection thus afforded as a part
of the law of tort. 

7) Section 53a Transfer of Property : Doctrine of part performance which provides, there
is a contract of sale in respect of immovable property where in transferor by writing,
signed by him agrees to transfer such immovable property and the transferee has taken the
Possession of the immovable property and continuous to be in possession of immovable
property and the transferee has done something in furtherance of such transfer and ready
 and willing to perform transfers have done something his part under the contract of
transfer, then even though such contract is required to be registered by any law and not
registered in fact then also the transferor id debarred from claiming any right against such
transferee.

8) Section 47 sale of Goods Act: right of the seller to lien. The seller if unpaid seller is and
if the Possession is still with the seller he can retain the goods.

9) Right of Bailee in contract of bailment: Indian Contract Act 1872, Section. 170, 171.
The Bailee too has a right to lien the goods bailed to unless he is paid remuneration by
Bailor till then he is entitled to keep the position of the goods.

10) In offence of theft in IPC Section 378: Possession is essential element. Even though the
possession was wrongful and the Possession of such thing is taken without the consent of
the possessor with dishonest intention. 

Methods of Transfer or acquisition of Possession

Transfer or acquisition of possession can be done in three ways, Viz., by taking, by delivery
and by the operation of law.
1) As regards the acquisition or transfer of possession by taking, it is done without the consent of
the previous possessor. This also may be done in two ways. One is called the rightful taking of
possession and the other the wrongful taking of possession. A shopkeeper is entitled to get some
money from a customer. This is an example of  the rightful taking of possession. If a thief steals
from an individual, his acquisition of possession is wrongful. However, if a person captures a
wild animal which does not belong to anybody, possession is called original.
2) Another way of acquisition of possession is by delivery or traditio in such a case, a thing is
acquired with the contents and cooperation of the previous possessor, delivery is of two kinds,
Viz., Actual and constructive. In the case of actual delivery immediate possession is given to the
transferee. There are two categories of actual delivery. According to one category, the holder
retains mediate possession and according to the other the holder does not retain mediate
possession. If I lend sell the same, I do not retain any mediate possession.
     Constructive delivery is that which is not direct or actual. There are certain things which
cannot actually be Transferred by the owner to the purchaser or by the transferor to the
transferee. In such Cases, constructive delivery alone is possible. There are three kinds of
constructive delivery and those are traditio brevi manu, Constitution possessorium and
attornment in the case of of traditio brevi manu, possession is surrendered to one who has
already immediate possession. In such a case, it is only the Animus that is transferred as the
corpus of possession already with the transferee. I have already lent a book to somebody, if I sell
the same book to him, it is a case of traditio brevi manu. In the case of
Constitution possessorium it is only the mediate possession that is transferred and the immediate
possession is retained by the transferor. I may sell my car to somebody but I may retain the
physical possession of the same for some time in spite of the payment of price to me . In such a
case, the Animus is lost and I keep the car on behalf of the purchaser. It is to be observed that in
all cases of constructive delivery, there is a change of Animus alone and corpus of possession
remains where it was before.
3) Transfer of possession can be made by the operation of law as well. This happens when, as a
result of law, possession changes hands. If a person dies, the possession of his property is
transferred to his successor and legal representatives.