THE ETYMOLOGY OF THE WORD ” POSSESSION”

To understand the word possession we should know the historical

background of the word , I.e. , the significance in its roots and its history

Possession is the most basic relation between man and thing . Possession of
material things is an important part of a humans life because without
possession it would be impossible to have existence in todays world. Many
important legal concept flows from acquisition and loss of possession .
possession is also one of the modes of transferring ownership . p. Possession
is said to be nine tenths of the law, meaning thereby that it is evidence of
ownership and he who interferes with the possession of another, must show
either title or better possessory right .

Salmond says “the concept of possession is as difficult to define as it is

essential to protect.” The word possession has many meanings, depending
upon the context in which it is used and it is therefore futile to search for a
proper legal definition of possession. This possession includes two things

1. The claim of selective client

2. genuine exercise of this guarantee, for example, physical command
over it.

The mental element called “animus possession”, and the last is a physical

element as the “corpus possidendi”.

Dr. Zacharias shows that possession is the connection between an individual

and an object, expecting the individual to own the object, and that there are
limits to arrangements.

Savigny states in his hypothesis of possession that the essence of physical

possession is found in the physical strength of rejection. The first is the
"corpus". For example, the physical ability to do something sudden .

The second is having at first obtained the thing, there must be the physical
capacity to hold it.
Salmond disagrees with Savigny's view that the owner must have the
physical ability to ban the interference of outsiders. The real test he showed
is not the strength of physical rejection. In any case, he said, "there is little
chance of interference by others."

Pollock called attention to that in like manner discourse a man is said to

have or to be in possession of anything of which he has the evident control,
or from the utilization of which he has the clear intensity of banning others.

As per Markby “possession is the assurance to practice physical authority

over a thing all alone benefit combined with the ability to do as such”.

Maine says possession as “physical confinement combined with the goal to

hold the thing kept as one’s own.”

Kant explains possession as “there must be an observational reality of taking

possession conjoined with the will to have an outer item as one’s own. At the
end of the day, there are two elements which are basic to establish the idea
of possession as complete and legitimate” .

These are as follows.

1. The Physical element which comprises of physical command over the

thing .
2. The mental element which comprises the assurance to exercise that
control
3. The physical element is known as the “corpus possession”  and the
mental element is called’ as the “enmity possidendi”. It is said that to
establish a substantial and complete possession both these elements
must be available for example, there must be “animus possidendi”
which means the aim to have just as “corpus possession” for example,
the thing must really be controlled by the individual who has the aim to
have it.
4. It is to be noted that the above two are very much essential in order to
constitute the Corpus and the viable acknowledgement in the truth of
the case of the holder while the ill will is the abstract element. Savigny
was of the view that both the elements, for example, corpus and
hostility must be there to comprise possession.
CONCEPT OF POSSESSION UNDER ROMAN AND ENGLISH LAW
The concept of the term “Possession” has been defined in Roman as well as
in the English law. Both of these laws have been considered one of the
authoritative and conventional laws in the field of lawmaking.

THE CONCEPT OF POSSESSION UNDER ROMAN LAW

Under roman law the word possession was utilized in to two diverse senses.
To have or be in a possession over a thing was not the same as having
possession over it.

Previously we understood by seeing what other the word possession’s history

where different scholars gave their idea about possession in a brief form and
most of them were designated to ”corpus possesson” while the latter
implied having restrictive authority over a thing. The Roman called as “civil
possessions” which signified legitimate possession.

In roman law certain important outcomes were related to “civil possessioms”

As indicated and proceeded with possession of the immovable property for a

long period which was not confinement provided for the holder possession or
“dominion ” over the property. The courts have taken an active stand and
role in understanding the concept of legitimate possession and
proprietorship.

An individual was considered to be in lawful possession of a thing when he

was unaware that it was in his physical control or he had custody over it, yet
likewise, he had the ability to bar other structure impedance in his
possession. This mental element to hold possession and authority over a
thing to the rejection of all others was classified “animus. Thus, possession
to be lawfully required two fundamental elements which are as follows

 Corpus

 Animus

THE CONCEPT UNDER ENGLISH LAW

The significance of understanding possession has been done in English law
too. The term was utilized in both

1. Civil law
2. Criminal law

In common law, viz. the law of torts, contract law, property, specific

alleviation, and so forth numerous wrongs are characterized regarding
possession.

For ex-trespass is a wrong identifying with possession of land or

merchandise, the change isn’t right influencing possessory directly in
products and is known as “trover”.

In the penal laws, burglary is untrustworthy removing any portable property

out of the possession of any individual without that person’s assent.

The English law perceives that procurement or loss of possession results

into numerous significant legitimate outcomes. Possession has been given
security under the law of varied reasons.

THE THEORY OF POSSESSION BY DIFFERENT

SCHOLARS.