DOCTRINE OF JUS TERTII

JURISPRUDENCE

NAME: SHUBHAM PATEL

DIV: D
ROLL NO: 202
AY: 2021-22
The Jus tertii: (third party rights) is an argument made by a third party
which attempts to justify entitlement to possessory rights based on the
showing of legal title in another person. By showing legitimate title in
another person, jus tertii arguments imply that the present possessor’s
interest is illegitimate or that the present possessor is a thief.

Salmond defines "possession" of a material object as, the continuing

exercise of a claim to the exclusive use of it". In other words, it is continuing
de facto relation (possession in fact) between a person and a thing. If means,
possession is the de facto relation between the possessor of the thing and the
thing possessed.

Requisites of possession:

The term "possession" has the following three requisites

i) There must be actual physical control.

ii) There must be actual physical control with the intention. It means,
actual physical control must be accompanied by intention. In other
words, possession must be conscious and intelligent, because, if a
thing is placed in the hands of a person asleep, cannot be said that
such sleeping person is in possession of that thing. Therefore,
consciousness of mind is also an important ingredient.
iii) The possession and intention must be visible by external signs,
because the thing must show visible signs of it' being under the
control of any one.
Why is understanding about ‘Possession’ important?

Possession is an evidence of ownership. Transfer of possession is one of the

chief methods of transferring ownership. The possession of a thing ‘even if
it is wrongful’ is a good title against the whole world except the real owner.
That is why it is said that ‘Possession is nine points of the law.’ Long
possession creates ownership by prescription. Possession is the basis on the
ground of obtaining certain legal remedies, for example, the possessory
remedy.
In certain cases, the possessor of a thing can confer a good title on a
transferee of it though he himself has none. Possession plays a very
important role in criminal law. In a number of offenses against property,
possession becomes the main issue to be determined.

Possessory Remedies:

Possessory remedies may be defined as those remedies, which are, available

for the protection and preservation of the right of possession of the
possessor. In other words, legal remedies provided by law for the protection
of possession, are known as possessory remedies. A possessor is presumed
to be true and absolute owner in the eyes of law until the contrary is proved
or shown, and the possessor is, therefore, protected by law in his possession
against all who fails to show a better title to the possession than what better
title to possession the possessor has.

In other words, possessory remedies protect the possession even against

ownership. Even if, a person is in wrongful possession, the rightful owner
cannot apply force to deprive him of his possession, but the rightful owner is
required to appeal to the law for the purpose of adequate assistance.
In other words, a wrongful possessor who. is deprived of his possession or
who is put out of his possession by the rightful owner, without applying the
due process of law, then in such situation, the wrongful possessor can
recover his possession from the rightful owner on the ground of his
possession only, because, the rightful owner who retakes possession
otherwise than in due process of law, is required to first restore the same to
the wrongful possessor and then required to proceed to recover the same on
the ground of his ownership in due process of law.

Object of possessory remedies:

The objects of the possessory remedies are summarised as under:

i) Prevention of violent self-help: The first object of possessory

remedies is to prevent the evils of violent self-help, because, the
evils of violent self-help are very serious, and therefore, such evils
of violent self ought to be prevented and discouraged by depriving
all the advantages derived from such evils of violent self-help.
ii) The remedy for serious imperfection: The second object of
possessory remedy is to remedy the serious imperfection of the
previous legal remedies which are not sufficient. The possessor
enjoys the advantageous position, because, the law prohibits to
take such advantageous position by force.
iii) Protection in the proof of ownership: The third object of
possessory remedies is to remedy the difficulty of proof of
ownership. It is comparatively easy to prove that, a person is in
possession than to prove the ownership of such person especially
in the absence of registration of title. It means that, in the absence
 of adequate, sufficient and foolproof arrangement and system of
registration, it is difficult to prove the ownership.
The wrongful possessor, therefore, enjoys the advantage over any
other person who claims the property from the wrongful possessor.

English Law on Possessory Remedies:

Possessory remedies are not recognized by the English Law, and the
following rules are applied by the English Law to render or to make
possessory remedies unnecessary and unwanted

i) Prior possession is regarded as the prima facie proof of title.

ii) The presumption can be rebutted by the defendant by proving that
he owns a better title.
iii) The attempt to set up title of the third person other than the
defendant or plaintiff, is not permitted and accepted.