Possession and Indian Law

Submitted by: Monmee Hazarika

( I ) ORIGIN OF PROPERTY:
“Jurists have often speculated about the origin of property. Blackstone thought that
the right of ownership belonged, by the law of nature, to the first occupant, or in other
words that the ownership arose out of occupation. Savigny, speaking of the Roman
law only, says that, according to that law, property originates in adverse possession,
ripened by prescription, or, in other words, that when a person has been for a
sufficiently long term in possession of a thing he is deemed to be the owner of it. This
is not identical with Blackstone’s theory, but is a statement of a historical fact and has
nothing to do with the ownership as a human institution. But this has been made the
foundation of a theory that property originates in occupation.”1

( II ) MAINE’S THEORY:

Sir Henry Maine points out that it is not the first possession which constitutes the
essential part of property in early Roman law or anywhere else, but rather the element
of long continuance which is represented by the Roman concept or prescription. It is
therefore, not proper to say that ownership originates in occupancy. It would
according to him , be truer to say that the doctrine of occupancy follows ay a later
date, when the right of ownership is already well established and everything is
regarded as necessarily importing the existence of an owner.

Sir Henry Maine further points out that the theory of origin of property as well as all
theories are of a similar character, suppose that man owned property in primitive
society as an individual. But in point of fact it was not the individual but Corporation
of which the individual was a member that really mattered in primitive society.

Sir Henry Maine’s thesis are mainly based upon his reading of the village
communities of India, of Russia and of Slavonic races of the Balkans is that in the
most ancient times property belonged to the entire village, which consisted of people
1
Evolution of law, by Naresh Chandra Sen Gupta, 3 rd Ed.,(1962), p.85

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who actually were or suppose themselves to be descended from a common ancestor.
These villages are thus similar to Roman gentes or German Houses. In course of time
property came to be temporarily divided between different families and his system is
found in the Russian villages. Still later, the property is divided permanently so that
the shares assigned become the absolute property of the families, as in the Indian
village community.2

( III ) POSSESSION:

Possession in any sense of the term must imply, first, some actual power over the
subject possessed, and secondly, some amount of will to avail oneself of that power.
Neither the more wish to catch a bird which is out of one’s reach , nor the more power
which one have , without the least notion of exercising it, to seize a horse which one
find standing at a shop door, will suffice to put oneself in possession of the bird or to
the horse.3

Roman law recognise as possessor only the owner, or one holding as owner and on his
way to become one by lapse of time. Some of the Roman jurists stated that
depositories and borrowers have no possession of the things entrusted to them.

The English law always had the good sense to allow title to be set up in defences to a
possessory action. The Common Law has always given the possessory remedies to all
bailees, without exception. The right to these remedies extends not only to pledges,
lessees, and those having a lien, who excludes their bailor, but to simple bailees, who
have no interest in the chattels, no right of detention as against the owner, and neither
gives nor receive a reward.4 To gain possession then, a man must stand in a certain
physical relation to the subject and to rest of the world, and must have a certain
intent.5

Possession may and usually exist both in fact and in law. The Roman Lawyers termed
possession in factas possession naturalis, and possession in law as possession civilis.
Possession may be again corporeal or incorporeal. Corporeal possession is the

2
Ibid
3
Mantha Ramamurti’s Law of Adverse Possession,Ed., 4 th, Delhi Law House
4
Common law by O.W. Holmes Jr., P. 216
5
Ibid

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possession of material object such as land, house etc. Incorporeal possession is the
possession of anything other than a material object for example a way over another
man’s land. The Roman lawyers calls corporeal possession as possessio corporis,
while incorporeal possession as possessio juris.Indian Courts in a proceeding is
always concerned with corporeal possession in fact or possessio naturalis under sec
145 of Cr.P.c.A corporeal possession is the continuing exercise of a claim over a
material object to the exclusive use of it.

As Salmond analysis, a man possesses a thing in defiance of the law, no less than in
accordance with it. A thief has possession in law, although he has acquired it contrary
to law. The law condemns his possession as wrongful, but at the same recognises that
it exists, and attributes to it most, if not all, of the ordinary consequences of
possession. Similarly trespasser has possession over the land he has trespassed upon
although he has done it contrary to law. The law condemns his possession as
wrongful, but at the same recognises that it exists, and attributes to it most, if not all,
of the ordinary consequences of possession. The Licensee has possession over the
land granted to him under Licence. Law will protect his possession if he is sought to
be dispossessed by violent self help. He can be dispossessed by the Licenser only in
accordance with law. The possession of a material object involves two distinct
elements, one of which is mental or subjective, and the other physical or objective. the
one consists in the intention of the possessor with respect to the thing possessed;
while the other consists in the external facts in which this intention has realised,
embodied or fulfilled itself. These two constituent elements of possession were
distinguished by lawyers as aud animus corpus. The subject matter is more
particularly the animus possidendi, animus sibihabendi, or animus domini. To
constitute possession the animus domini is itself not sufficient; but must be embodied
in a corpus. The will is sufficient only when manifested in an appropriate environment
of fact, just as fact is sufficient only when it is the expression and embodiment of the
required intent and will. Possession is the effective realisation in fact of the animus
sibi habendi. To constitute possession animus domini must realise itself in both of
these relations. The necessary relation between the possessor and the thing possessed
is such as to admit of his making such use of it as accords with the nature of the thing
and of his claim to it. There must be no barrier between him and it, inconsistent with
the nature of the claim he makes to it. The fact of actual possession will be found

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where the party has the animus domini to possess the disputed land and he in fact
possessed it. Actual possession is to be distinguished from constructive possession. In
the case of Bishwanath Biswas V shri Gauranga Sarkar6; it was observed that when
a person grants a licence to another to possess his land and puts the licensee in
possession, the licensee satisfies both the requirements of the animus and corpus of
possession. In the case of Indaraj Singh V Pubaya Lal Singh 7 ; it was held that
possession contemplated by Sec 145(1), Cr.P.C., includes even unauthorised
possession.

( IV) JURISTIC EXPOSITION OF TERM POSSESSION:

Oliver Webdel Homes view – “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.”

Holland’s view- “the right of the possessor to continue to possess is called the jus
possessions. In order to ascertain what the right is if any which results from
possession is which is recognised as having legal consequences.”

Bentham’s view- “Defining the concept of possession is like defining the geometric
conception of roundness.”

Salmonds view- “the continuing exercise of a claim, to the exclusive use of a thing,
constitutes the possession of it”.

Savigny’s view- “possession consists of two ingredients, corpus possession; effective

control and animus domini; the intention to hold as owner. Since possession involved
both these elements the permanent loss of one or the other brought possession to an
end.”

6
(1986)1 Gau. L.R. 344 at pp. 348,349,350.
7
1988(1) Crimes 86(M.P.).

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POSSESSION AND JUDICIAL INTERPRETATION BY
INDIAN COURTS

( I ) WHAT AMOUNTS TO POSSESSION:

It was observed in the case of Amalgamations Limited V hemidah Nasirali of

Bombay8that possession to entitle the possessor to protection order must be settled
possession and not a stray act done most probably during the absence of true owner
from the place.

Possession must be distinguished from mere occupation or detention. Possession in

the eyes of law consists of the fact of physical occupation and the mental act of
holding the subject of possession to the exclusion of others. The unity of these two
elements, namely, occupation and animus possidendi is recognised as constituting
“possession” in the eye of law. The physical element is not necessarily connected with
any bodily contact with the subject of possession. It implies the physical power or
possibility of dealing with the subject immediately. Legal possession is occupation
with the intention of exercising the right of ownership in respect of it. Mere acts of
user which do not interfere are consistent with the owner’s title are not sufficient to
constitute dispossession of the owner or start adverse possession in favour of the
occupant. Another principle settled in the case of Rangulal Ram V Makhan Lal ;
Balmuki Behera V Smt. Rukuni Beherani 9 is that possession is never considered
adverse if it can be referred to a lawful title. Whether in particular circumstances, the
acts of the occupant amount to possession and whether such possession is on behalf of
the legal owner or in opposition of his title are matters of inference to be drawn from
proved facts.

Both under the Transfer of Property Act and General Clauses Act, as a thing
attached to earth the super-structure would be immovable property. But the
Presidency Small Cause Courts make a departure and statutorily requires the super-
structures to be regarded as movable property. Section 28 of the Act clearly provide
8
1990(3) Bom. C.R. 368 at p. 371
9
A.I.R. 1951 Orissa at p. 185; A.I.R. 1978 Orissa 142 at p. 144.

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that the purpose of execution under any decree of Small Cause Courts, the superior
structure of a tenant of immoveable property shall be deemed to be moveable
property. It has to be sold and attached as moveable property and all questions arising
to the same in execution of the decree of Small Cause Court have to be disposed of as
it is moveable property. Certain restrictions are imposed with reference to severance
of the property on the purchase on execution was being held in the case of
Thangammal Vs Murugammal.10

( II ) VARIOUS CONCEPT OF POSSESSION:

In the case of Bishambhar nath Vs Nisar Ali11; it was held that possession is not
necessarily the same thing as actual user. It was even held in the case of Bahadur
Chand Vs Nainamal 12 that possession means the physical possibility of a person
dealing with a property exclusively as the likes.

Possession implies two things:

(i) Some actual power over the object possessed

(ii) Some amount of will to avail oneself of that power

Possession in fact is not manifested in the same way in respect of all objects. Where
the thing is capable of physical possession a man may be in possession personally or
he may let it to tenants and in later case he is possession through tenants. Possession
in fact is manifested by the exercise of such exclusive control as the object is capable
of. In the case of wild un – cleared land payment of taxes may be sufficient evidence
of possession as being the only practical act of domain. As observed above possession
is not thing as occupation or actual user. When land is incapable of being used in any
of the recognised modes by the proprietor , it cannot be said in law he is in out of
possession was being observed Gajadhar Prasad Vs Mst Dhulin Gulab Kuer13case.

A man may cease to use his land because he cannot use it since it is under water. He
does not there by discontinuance his possession, constructively it continues, until he is
dispossessed; and upon the cessation of the dispossession before the lapse of the
statutory period constructively it revives.

10
A.I.R.1970 Mad. 325 at p.326:83 M.L.W.195: (1971)1 M.L.J.460
11
A.I.R. 1932 Oudh 51 at p.54: O.W.N.1281:135 I.C. 693
12
25, I.C. 35:133 P.W.R 1914 : 231 P.L.R 1914: 14 P.R. 1915
13
A.I.R. 1921 Pat. 234 at p. 235

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When a party relies on possessory title, it is necessary that he should prove effective
possession over the property in order to succeed on the basis of possessory title. By
effective possession it is meant either actual possession or possession through a tenant
who must have paid rent voluntarily or under a decree to the person claiming
possessory title was observed in the case of Parbati Sham Achary Vs Smt Manshi
Debi14.

The cases of diluviated lands or jungle or waste lands, however, are no exception to
the general rule that a plaintiff who is dispossessed and brings a suit for recovery of
possession must show that he was in possession within 12 years of the suit. The
plaintiff in a suit for ejectment must prove possession prior to the alleged
dispossession. At the same time in this question of possession the initial fact of
plaintiff’s title comes to his aid with greater or less force according to the
circumstances established in the evidence was being observed in the case of Rani
Hemanta Kumari Devi Vs Maharaja Jogindranath Roy15.

( III ) DIFFERENT TYPES OF POSSESSION:

There are several kinds of possession:

a. Juridicial Possession: the expression “Juridicial possession” is the same

thing as legal possession in a more impressive form. This view was being
expressed in the case of Rahimbux Ashan Karim Vs Central bank of India
Ltd16.It means a possession which has been got neither by force nor by fraud
was held in Aziz-ul-haq Vs Mariam Bibi17case. The owner cannot be sued by
the trespasser who has entered by force and fraud either for recovery of
possession under sec 9 of Specific Relief Act. Section 9 of Specific Relief Act
requires legal possession and the owner who enters without delay has in law
never lost possession was being held in Emperor Vs Bandhu Singh18case.

14
A.I.R.1977 Orissa 139 at p.141
15
(1906) 10 C.W.N 630.
16
A.I.R. 1929 Cal. 497 at p. 501
17
1 Q.L.J. 225: 17 O.C. 153 : 24 I.C. 45.
18
A.I.R.1928 Pat. 124 at p. 126:I.l.R. 6 pat. 794

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 The wrongful trespassers possession is a recurring wrong as observed in the
same case.
b. Constructive Possession: In Mahendranath Bagchi Vs Tarak Chandra
Singha19, the meaning of constructive possession is well explained and given.
The term “constructive possession” means different in different circumstances.
By constructive possession is generally meant possession, as distinguished
from actual possession, through a tenant or agent. It has also been used in
connection with property which is incapable of actual possession and is said to
be in constructive possession of the owner as waste lands or lands under water.
If a person is the owner of the property but he does not use it for some time, it
cannot be said that he is in constructive possession of it. He is in actual
possession so long as he has the power to bring it into use whenever he likes.
Thus constructive possession in one sense is nothing more than the right to
take physical possession. Land may be incapable of beneficial use as in the
case of land covered with sand by an inundation. So long the sand is put of
reach of the owner as in the case of diluvion by a river, the owner is in
constructive possession as was held in Mohammed Ali Khan Vs Khaja Abdul
Gunny20case.
c. Syambolical possession: Where immoveable property is sold by auction in
execution of a decree, actual physical possession is not or could not be
delivered to the auction – purchaser but possession is given by beat of drum
and by going round the boundaries of the land by an officer of the court, it is
spoken as giving symbolic possession. So that any adverse possession of the
judgement – debtor is arrested thereby and gives the auction – purchaser a new
start of limitation in the case of Radhe Shyam Vs Ram Bahadur21.
The period of limitation starts from the date of symbolic possession and not
from the date of confirmation of sale.
In Dr. Bhargava & Co Vs Shyam Sunder Seth by L.R.S22, the Court held that
the auction- purchaser cannot claim title to property till the time the full price
in respect of the said property is paid which is a condition precedent and also

19
A.I.R. 1932 Cal. 504 at P.505
20
I.L.R. 9 Cal. 744(F.B) ( Sec 114, Evidence Act applied)
21
7 L.W. 149 at p. 155 : (1918) 34 M.L.J. 97
22
1994 (55) D.L.T 204 AT P. 208

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 certificate is issued. Understatedly the full price of property in dispute was
paid in the year 1980 and sale certificate was issued thereafter.
23
In Registrar Co- op., Bhopal V Asstt. Reg. Co- op. Soc., Mandsour, it
appeared from the written statement filed by the defendant, and several other
documents, that the suit land was not properly attached, is was put to auction
on account of its having been encumbered for the amount of loan secured by
the defendant. It was held by the Court that it would be suit based on the
independent title of the plaintiffs ignoring the sale and seeking declaration of
their own title coming under clause on the account of the sale held by the
Sales Officer. Such a suit would be governed not by sub – rule 3 of rule 69 or
rule 69- A but by Art 65 of the Limitation Act, 1963.
d. Servant’s Possession: In order that the possession of the servant or agent
may be juristically regarded as the possession of the master or principal, the
servant or agent must be obedient to, and amenable to the directions of, the
master or principal. If the master or principal has no hand in the appointment
of the servant or agent or has no control over him or has no power to dismiss
or discharge him, the possession of such servant or agent can hardly in law, be
regarded as the possession of master or principal was being observer in
Charanjit Lal Choudhury Vs Union of India24. The possession of a servant,
which is permissible in nature, is never in his own rights as held in Roshan
Lal Vs State of Punjab25. Possession of a servant as against his master could
not be treated as possession contemplated by Sec 145 0f Cr.P.C as held in
Manik Chand V Murari Krishna Tayal26.

e. Adverse Possession: A prescriptive right is essentially one that is created by

uncontested assertion of the right for a given period of time. The principle is
based in many ways on a sort of estoppel in rem.In India, the Limitation Act,
1963 is the legislation that governs the period within which suits are to be
filed, with relevant provisions for delay, condonation thereof etc. The
principle that pervades statutes of limitation at common law is that ‘limitation

23
1993 C.T.J. 185 at p.188 (M.P)
24
A.I.R. 1951 S.C. 41 at p.63
25
1988 (1) Crimes 271 at P.272 (P. & H)
26
1986 Cr.L.J. 128 at p. 131

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 extinguishes the remedy, but not the right’ as observed inVenkatrama Aiyar
J. in Bombay Dyeing v. State of Bombay27, this means that the legal right
itself is not defeated, but only the right to claim it in a court of law is
extinguished .This might sound technical, but assumes relevance in the context
of cross-claims, set-off, etc 28 . Section 27 speaks about Extinguishment of
Right to Property, at the determination of the period hereby limited to any
person for instituting a suit for possession of any property, his right to such
property shall be extinguished.

This provision, when read with Articles 64 and 65 of the Schedule to the Limitation
Act, 1963 establishes the law of adverse possession as it stands in India today. These
two Articles both prescribe a period of twelve years within which the right to claim a
particular property is extinguished, but the two differ in so far as the date on which
such period of limitation begins to run.

Article 64 deals with cases where the dispute is over possession not necessarily based
title, and in such cases the period of limitation runs from the time when the plaintiff
was dispossessed of the property.

Article 65 deals with cases where the dispute is over title as such also and in such
cases the period of limitation runs from the time when the defendant becomes adverse
to that of plaintiff.

The distinction between the two might seem almost semantically at first blush, but on
further analysis, especially by placing the twin provisions in contradistinction to
Articles 142 and 144 of the old Limitation Act, 1908, as seen as an extremely
significant distinction emerge through. In the old Act, whether the alleged possessory
right was based on title or not, the burden of proof always lay on the plaintiff, who
had to prove that he was in possession of the property within 12 years of the suit.
However, the new Act, pursuant to the recommendations of the First Law
Commission in its 3rd Report, 1956, has modified this to benefit plaintiff’s suits based
on title. Article 65, in such cases lays the burden of proof, that the claim is barred by

27
AIR 1958 SC 328
28
pg. 10, 193rd Report, Law Commission of India

10

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limitation squarely on the defendant, in cases where the plaintiff bases his suit on title.
InJagamohan Garnaik v. Sankar Samal29it was being stated that, clearly, this is an
improvement and confers a better bundle of rights on a person who claims to have
title to the property, partially diluting the otherwise stern face of the law of adverse
possession.

f. Immediate and mediate possession: Immediate possession is called direct

possession whereas mediate possession is known as indirect possession. If the
relation between the possessor and thing possessed is a direct one, it is a case
of mediate possession. When the relation is through the intervention or agency
of some other person, it is called mediate possession.

( IV ) PRESUMPTION AS TO POSSESSION:

Though the presumption of law is that every possession starts legally, where a
plaintiff wants to establish that the defendant’s original possession was permissive it
is for him to prove this allegation and if he fails to do so it will be presumed that the
possession is adverse. It must be assumed in absence of any evidence contrary that the
possession of defendant was adverse till the date of the conveyance in favour of the
plaintiffs.

In Maung Ba Than Vs Maung Sein Win30, it is stated that at the time of the date of
sale, the vendors of the plaintiff had no right, title or interest in the land. Any
statement by the defendants, therefore, must have been made based upon a mistake or
misconception of the legal rights of the plaintiffs, and such an admission could not
operate as an estoppels, nor could permission if any by the plaintiffs to the defendants
estop them under Sec 116 of the Evidence Act, 1872 from denying the plaintiffs title.
They would undoubtedly be Licensees but they sought the license under a mistake.
Therefore even assuming the Plaintiff’s evidence on this point is true, it is still open to
the defendants to plead that they acquired title by adverse possession, and on evidence
it must be held as thr District Judge held that they had so acquired title to the land.

29
AIR 1990 Ori 124
30
A.I.R. 1929 Rang. 170

11

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In Ranjeet Ram Pandey Vs Govardhan Pandy, it was observed that where there is
strong evidence of possession on part of the respondents opposed by evidence of
possession on the part of the respondents opposed by evidence apparently strong also
on the part of the appellant, in estimating the weight due to the evidence on both
sides, the presumption may well regarded that possession went with the title.

( V ) SECTION 6 OF SPECIFIC RELIEF ACT:

The title and possession of the respondent had always been disputed by the appellant
from the stage of the written statement hence principle under Sec 6 of Specific Relief
Act would not be applicable in the facts and circumstances. In Nagar Palika, Jind Vs
Jagat Singh Advocate31, their Lordships, fail to appreciate as to how the principle of
Sec 6 of Specific Relief Act, 1963 can be applied in facts and circumstances of the
present case. The respondent, who was the plaintiff never, alleged that he had been
dispossessed by the appellant- Municipal Committee. On the other hand he claimed to
be the owner of the land in question and asserted that he was in possession over the
same. He sought for permanent injunction restraining the appellant from interfering
with his possession. Both the parties led evidences in support of their respective
claims including on the question of title. The Court of Appeal committed a substantial
error of law decreeing the suit of respondent without recording a finding in respect of
his claim of title over the suit land. Their Lordships are of the view that High Court
could not have dismissed the second appeal filed on behalf of the Municipal
Committee in limine. The Court of Appeal never inquired or investigated that
question which was at issue saying that the title of the plaintiff respondent was
admitted by the appellant. This was a serious error of record. The title and possession
of the respondent had always been disputed by the appellant from the stage of the
written statement. In this background the suit of the respondent could not have been
decreed merely on the basis of entries in the revenue record during the pendency of
the earlier suit filed in the year 1971.

( VI ) SUIT BARRED BY LIMITATION:

31
A.I.R. 1995 S.C. 1377 at pp. 1379, 1380.

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Law of limitation operating on Yarlagadda Venkanna Choudhury Vs Daggubati
Lakshminarayana32can be examined and recorded. The suit is for possession based
on title and therefore it is governed by Art 65 of Limitation Act, 1963. The period of
limitation for such a suit is 12 years when the possession of the defendants becomes
adverse to the plaintiffs. Patently neither Rajamma nor Plaintiffs were in possession
of the suit land within 12 years next before the suit. Strictly speaking, it ran to
commence from the year 1925 when the gift is said to have been conferred on
Rajamma data of ex. A-3. 12th April 1957, the period of limitation ended on 12th April
1969. The cause of action for the suit mentioned in the plaint is the death of Rajamma
in October 1968. The date of suit is17th September 1971. In all cases of bar of
limitation in any manner including the prescription or adverse possession, the rule of
tacking operates. By the time Rajamma died, there was lapse of 11 years 6 months
from the date of Ex A-3 as tacking to the further period till the date of the suit, it
would be 14 years 5 month and 5 days. Thus the suit was barred by limitation when it
was filed by operation of the law of prescription read with Art. 65 of the Limitation
Act.

( VII ) NO LIMITATIONS FOR SUITS BASED ON TITLE:

The title suit is not at all barred by limitation because there is no limitation for suits
based on title. The only defence to such an action would be adverse possession and
once adverse possession is alleged, then the plaintiff is necessarily put on guard and in
that case alone he has to institute a suit within 12 years from the date when the hostile
title is assumed was being observed in Trilochan Dandsena Vs State of Orissa33

WHY POSSESSION IS PROTECTED AND

POSSESSORY REMEDIES IN THE INDIAN LAW

32
1996 (1) A.L.D. 641 at p. 673
33
A.I.R. 1995 Ori. 239 at p.241

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( I )WHY POSSESSION IS PROTECTED?

The term possession expresses the physical relation of control exercised by a person
over a thing. Salmond says- “the continuing exercise of a claim, to the exclusive use
of a thing, constitutes the possession of it”. Bentham says defining the concept of
possession is like defining the geometric conception of roundness. Absolute
roundness cannot be defined and so with this concept. Maine defines possession as
physical detention coupled with the intention to hold the thing detained as one’s own.
Pollock has given a different view on the meaning of possession. He said: “in
common speech, a man is said to possess or to 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. The Supreme Court has opined in the case of Superintendent v.
Remembrance R34that “Possession is a polymorphous term which may have different
meanings in different contexts. It is impossible to work out a completely logical
definition of possession uniformly applicable to all situations in context of all
statutes.”

Possession is a conception which is only less important than contract. But the interest
attaching to the theory of possession does not stop with its practical importance in the
body of English law. The theory has fallen into the hands of the philosophers, and
with them has become a corner-stone of more than one elaborate structure. It will be a
service to sound thinking to show that a far more civilized system than the Roman is
framed upon a plan which is irreconcilable with the a priori doctrines of Kant and
Hegel. Those doctrines are worked out in careful correspondence with German views
of Roman law. And most of the speculative jurists of Germany, from Savigny to
Ihering, have been at once professors of Roman law, and profoundly influenced if not
controlled by some form of Kantian or post-Kantian philosophy. Thus everything has
combined to give a special bent to German speculation, which deprives it of its claim
to universal authority.

Why is possession protected by the law, when the possessor is not also an owner?
That is the general problem which has much exercised the minds of jurists. Kant, it is
well known, was deeply influenced in his opinions upon ethics and law by the

34
AIR 1980 SC 52

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speculations of Rousseau. Kant, Rousseau, and the Massachusetts Bill of Rights
agree that all men are born free and equal, and one or the other branch of that
declaration has afforded the answer to the question why possession should be
protected from that day to this. Kant and Hegel start from freedom. The freedom of
the will, Kant said, is the essence of man. It is an end in itself; it is that which needs
no further explanation, which is absolutely to be respected, and which it is the very
end and object of all government to realize and affirm. Possession is to be protected
because a man by taking possession of an object has brought it within the sphere of
his will. He has extended his personality into or over that object. As Hegel would
have said, possession is the objective realization of free will. And by Kant's
postulate, the will of any individual thus manifested is entitled to absolute respect
from every other individual, and can only be overcome or set aside by the universal
will, that is, by the state, acting through its organs, the courts.

There are many reasons for protection of possession:

1. Protection of possession aids the criminal law by pre serving the

peace. According to Savigny, the protection of possession is a
branch of protection to the person. Possession is protected in order to
obviate unlawful acts of violence against the person in possession.
Interference with possession inevitably leads to disturbance of peace.
Order is best secured by protecting a possessor and leaving the true
owner to seek his remedy in a court of law. Justice Holmes writes:
"Law must found itself on actual facts. It is quite enough therefore
for the law that man, by an instinct which he shares with the domestic
dog and of which the seal gives the most striking example, will not
allow himself to be dispossessed either by force or by fraud, of which
he holds, without trying of get it back again. To obviate the
violence resulting from this, possession is protected by the law."
2. According to Ihering, possession is ownership on the defensive. The
possessor must be protected and he must not be asked to prove his
title. Most of the possessors are the rightful owners and it is
desirable that they should be protected. Possession is the evidence of
ownership. Possession is patent to all. Possession is the nine points
of law and hence protection should be given to possession.

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 According to Holland, "The predominant motive was probably a
regard for the preservation of the peace". The view of Windschield is
that protection to possession is given in the same way as protection is
given against injuria or the violation of a legal private right.
2. Possession is protected as a part of the law of tort. Law protects
possession not only from disturbance by force but from disturbance
by fraud. The protection thus afforded is a part of the law of tort.
3. 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 is protected against
defamatory attack, his possession is protected as he has projected his
personality over the object of possession.

Kant says that men are born free and equal. Freedom of will is the essence of
man and it must be recognized, respected, protected and realized by all
governments. Possession is the embodiment of the will of man. By taking
possession of a thing, a person incorporates his will and personality in that
thing. Possession is the objective realization of free will and the will of a
person as expressed in possession must be protected. Puchta writes: "The will
which wills itself, that is, the recognition of its own personality, is to be
protected." The view of Gans is that "the will is of itself a substantial thing
to be protected and this individual will have only to yield to the higher common
will”
4 .Possession is protected as a part of the law of property. Cairne writes:

"Possession was originally protected to aid the Law of Crime and Tort;
it came at length lo be protected in order to aid the law of property."
35
In the early stages of the development of the law of property when
proof of title to property was difficult, it was considered to be unjust

35
the Social Sciences, p. 65

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 to cast on a person whose possession was disturbed the burden of
proving a flawless title. Therefore, the law presumed that the possessor
was the owner until a superior title was shown to exist in someone else.
In this way, possession came to be protected by law.
The view of Salmond is that distinct possessory remedies are not
required and the punishments of criminal law and the sanctions of the
Law of Tort are sufficient to prevent the evils of violent self-help.
An owner who has dispossessed a trespasser need not be required
to deliver possession to the trespasser and recover it back in an
independent proprietary action. As for assistance rendered to the
law of property, the modern law of evidence can adjust the burden of
proof suitably and avoid the duplication of proprietary and
possessory remedies.
While these considerations are entitled to great weight, expediency requires
that possession as such must be protected. In India, a compromise has
been made between proprietary and possessory remedies. If the dispossessed
owner brings his suit promptly within six months, he is allowed to succeed
merely on proof of possession even against the true owner. If he brings his
suit beyond that period, he is non-suited if the defendant proves a superior title
in himself.

(II) WHAT IS A REMEDY?

The Black’s law dictionary defines remedy as the means of enforcing a right or
preventing or redressing a wrong. The Osborne’s law dictionary defines remedy as the
means whereby breach of a right is prevented, or redress is given. Legal or judicial
means by which a right or privilege is enforced or the violation of a right or privilege
is prevented, redressed, or compensated may be called a remedy.
It is the means by which a contractual right or obligation is enforced or the violation
of such a right is prevented, reduced or compensated, Remedies may be defined in the
contract, by agreement between the parties such as by accord and satisfaction, by
arbitration, by operation of law or judicial remedy such as by action or suit. Remedy
is a way of repairing harm or damage (also to one's reputation) suffered, or of
improving an unsatisfactory situation.

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( IV) WHAT ARE POSSESSORY REMEDIES & WHY ARE
THEY RECOGNIZED?

Possessory remedies are those which exist for 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 possession on the ground of his ownership.

There are many reasons why possessory remedies are recognized

1. Possession often amounts to evidence of ownership. A finder of goods becomes

its owner against the whole world except the true owner. This is on the ground
that he is in possession of it. If a person is in adverse possession of a property for
12 or more years, he becomes the legal owner of that property and the right of
the original owner is extinguished
2. The evils of violent self-help are very serious and in all civilized countries, those
are prohibited. Experience shows that there can be better conditions in society if
the use of force is avoided by the real owners. Lawful methods are always to be
preferred and no one should take the law into his own hands.
3. Another reason for possessory remedies is to be found in the serious
imperfection of early proprietary remedies. Those were cumbersome, dilatory and
inefficient. Every claimant had to undergo many hardships. The position of the
plaintiff was a very difficult one and no person was to be allowed to occupy the
advantageous position of the defendant. It was under these circumstances that it
was provided that the original state of affairs must be restored first. Possession
must be given to him who had it first and then alone the claims of the various
persons could be settled. Under the old legal systems, it was extremely difficult to

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prove one's ownership and recover the property on the ground of title. Very often,
small technicalities resulted in the defeat of one's title to property.

4. Another reason for possessory remedies is that it is always more difficult to

prove ownership than to prove possession. Hence it is unjust that a person who
has taken possession of property by violence should not be allowed to transfer
the heavy burden of proof from his own shoulders to that of his opponent. He
who takes a thing by force must thing by force must restore it and he is free to
prove that he is the owner.

( V ) SOME POSSESSORY REMEDIES IN INDIAN LAW:

The Indian legislators have taken care of providing possessory remedies and it is
reflected in various statutes. Some of the statutory provisions are being discussed
below in this chapter.
Specific Relief Act, 1963
Sec. 5 of the said Act deals with action for recovery of possession of specific
immovable property based on title. The essence of the section is that whoever proves
a better title in a person entitled to possession. The title may be on the basis of
ownership or possession. The purpose behind Sec.5 is to restrain a person from using
force and to dispossess a person without his consent otherwise than in the due course
of law. S.6 of the same act provides that if any person is disposed without his consent
of immovable property otherwise than in due course of law, he or any person claiming
through him may by suit, recover possession thereof.
Sec. 5 &Sec. 6 give alternative remedies and are mutually exclusive. Under Sec. 5 a
person dispossessed can get possession on the basis of title whereas under Sec.6 a
person dispossessed may recover possession merely by proving previous possession
and subsequent wrongful dispossession.
Moving further, Sec. 7 and Sec. 8 of the same act provide for methods for recovery of
possession of some specific movable property.

Code of Criminal Procedure, 1973

Sec. 145 of the Cr. P. C. lay down the procedure where a dispute concerning land or
water is likely to cause breach of peace. Commenting upon the scheme of Sec. 146,

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the Supreme Court has observed that the object of the section no doubt is to prevent
breach of the peace and for that end to provide a speedy remedy by bringing the
parties before the court and ascertaining who of them was in actual possession and to
maintain status quo until their rights are determined by a competent court.
Sec. 456 of the same code provides that when a person is convicted of an offence
attended by criminal force or show of force or by criminal intimidation, and by such
force or show of force or intimidation, any person has been dispossessed of any
immovable property, the court may within one month after the due date of conviction,
order that possession of the same be restored to that person.
Sale of Goods Act, 1930
Sec. 47 of the Act provides for sellers’ lien. Lien is the right to retain possession of
goods until certain charges due in respect of them are paid. The unpaid seller has the
right to retain the goods until he reserves their price. S. 47 provide that the unpaid
seller of goods who is in possession of them is entitled to retain his possession until
payment or tender of the price in the following cases:
1) Where the goods are being sold without any stipulation as to credit
2) Where the goods are being sold on credit but the term of credit has expired.
3) Where the buyer becomes insolvent.
S. 48 of the same act provides for part delivery. It reads –
Where an unpaid seller has made part delivery of the goods, he may exercise his right
of lien on the remainder, unless such part delivery has been made under such
circumstances as to show an agreement to waive the lien.
Thus, where an unpaid seller has delivered a part of the goods, he may exercise his
lien on the remainder. The party, who alleges that part delivery was intended to
operate as delivery of the whole, has to prove that fact.
Indian Contract Act, 1872
Sec. 168 of the ICA, 1872 provides for the right of finder of goods. It reads:
“168. Right of finder of goods, may sue for specific reward offered.—
The finder of goods has no right to sue the owner for compensation for
trouble and expense voluntarily incurred by him to preserve the goods
and to find out the owner; but he may retain the goods against the
owner until he receives such compensation; and, where the owner has
offered a specific reward for the return of goods lost, the finder may
sue for such reward, and may retain the goods until he receives it.
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Furthermore, Sec. 169 of the same Act reads:
169. When finder of thing commonly on sale may sell it. — When a
thing which is commonly the subject of sale is lost, if the owner cannot
with reasonable diligence be found, or if he refuses, upon demand, to
pay the lawful charges of the finder, the finder may sell it—
(1) When the thing is in danger of perishing or of losing the greater
part of its value, or
(2) When the lawful charges of the finder, in respect of the thing
found, amount to two-thirds of its value.
Sec 168 & Sec 169 protect the interest of the finder in 2 ways- Sec.168 allows the
finder to retain the goods against the owner until he receives compensation for trouble
and expense. Further, where the owner has offered a specific reward for the return of
the goods lost, the finder may sue for such reward, and may retain the goods until he
receive it.
S. 169 allow the finder to sell the goods in certain circumstances. Where the thing
found is commonly the subject of sale and if the owner cannot be found with
reasonable diligence, or if he refuses to pay the lawful charges of the finder, the finder
may sell the goods in the following cases:
1. when the thing is in danger of perishing or of losing greater part of its value,
2. or when the lawful charges of the finder, in respect of te thing found, amount
to 2/3 rd of its value.
For it has been held that, if a stick of timber comes ashore on a man's land, he thereby
acquires a "right of possession" as against an actual finder who enters for the purpose
of removing it.
Adverse Possession
Adverse possession is a way of acquiring title to real property by physically
occupying it for a long period of time. Through this, one may acquire property
without the consent of the actual title holder if one possesses it long enough and meet
the legal requirements. Adverse possession is one kind of involuntary transfer of
ownership rights in real property. Under the doctrine of adverse possession, the true
owner of a piece of real property cannot bring an action to eject someone who has
actually possessed the property for a certain period of time.

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( VI ) POSSESSORY REMEDIES AND DOCTRINE OF JUS
TERTII:
Possessory remedies have been rejected by English law but other provisions have
been made to protect possession, there are three rules in this connection, prior
possession is prima facie proof of title, he who is in possession first in time has a
better title than the one who has no possession, a defendant is always at liberty to
rebut that presumption by proving that he has a better title. A defendant who has
violated the possession by the plaintiff is not allowed to set up the defence of jus
tertii, which means that he cannot plead that though neither the plaintiff nor he has the
title, some third person is the true owner but the plaintiff is not. English law considers
jus tertii as a good defence under the following circumstances:
1) When the defendant defends the action on behalf of and by the authority of the true
owner.
2) When he committed the act he complained of, by the authority of the true owner.
3) When he has already made satisfaction to the true owner by returning the property
to him

CONCLUDING REAMARK
Critical analysis of Henry Maine’s Theory: One of the chief foundations of Maine’s
Theory has been seriously disturbed by the further studies of the Indian village
communities which Maine describes is not the only, nor perhaps the most primitive of
the village in India. Baden Powell, with a command over far ampler material than was
available to Maine, established beyond doubt that the ryotwari village in which the
lands were the absolute separate properties of the families was apparently the more
primitive form of village community. The lands really were the separate property of
the villagers although some common functions were performed by the village
officials. According to Baden Powell, the communal village, in which the enjoyment
were jointly held and apportioned between the families for enjoyment, was a
development out of the original ryotwari type of villages in which the land was held
by each family separately. The existence of village communities in ancient Anglo-
Saxon society, upon which a great deal of reliance was placed by Soobehm, has been
severely criticised by Pallock and Maitland. Who have pointed out that theses

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communal institutions were not primitive and that individual ownership existed in
point of fact, at least as far back as one can carry communal ownership.
There is reason for holding that joint ownership of property by the family was not
necessarily the most primitive form of ownership. On the contrary looking at the most
primitive strata of Indian Law, one is disposed to conclude that the right of the
individual in the shape of the father was recognised in the beginning and it was only
by a gradual process of limitation of the father’s right that the joint ownership of
father and sons established. In the primitive law in India as elsewhere, so far from the
son being looked upon as co-owner of property, he himself was, as have been seen
before, looked upon more or less as the absolute property of the father. It was
probably when the society was scandalised by the unnatural conduct of the father in
exercising his authority over his son against the dictates of natural affections and
religious duty that limitations were placed upon father’s rights such as, we find in the
provision Twelve Tables that when a father sells his son thrice into slavery he is
deprived of the right of fatherhood; or the provision repeated in the Hindu Law that
the father should not alienate the family property as to deprive his son altogether of
maintenance. In course of time these restrictions were developed in ancient India into
what is supposed to be the characteristic of Hindu law, though it was not really
universal or primitive in Hindu Society, namely, the Mitakshara conception of joint
ownership of the father and sons.

Other criticisms that can be levelled against the concept of possession are-

As mentioned earlier, to constitute possession the animus domini is not in

itself sufficient, but must be embodied in a corpus. The claim of the possessor must be
effectively realised in the facts; that is to say, it must be actually and continuously
exercised. The will is sufficient only when manifested in an appropriate environment
of fact, just as the fact is sufficient only when it is the expression and embodiment of
the required intent and will. Possession is the effective realisation in fact of
the animus sibi habendi.

One of the chief difficulties in the theory of possession is that of determining what
amounts to such effective realisation. The true answer seems to be that the facts must
amount to the actual present exclusion of all alien interference with the thing

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possessed, together with a reasonably sufficient security for the exclusive use of it
in the future. Then, and then only, is the animus or self- assertive will of the possessor
satisfied and realised. Then, and only then, is there a continuing de facto exercise of
the claim of exclusive use. Whether this state of facts exists depends on two things:
(1) on the relation of the possessor to other persons, and (2) on the relation of the
possessor to the thing possessed. We shall consider these two elements of the corpus
possessionis separately.

Custom: Such is the tendency of mankind to acquiesce in established usage, that we

have here a further and important source of de facto security and possession. Did
I plough and sow and reap the harvest of a field last year and the year before? Then
unless there is something to the contrary, I may reasonably expect to do it again this
year, and I am in possession of the field.

Some amount of difficulty or even uncertainty in coming to the enjoyment of a thing

is not inconsistent with the present possession of it. My cattle have strayed, but
they will probably be found. My dog is away from home, but he will probably return.
I have mislaid a book, but it is somewhere within my house and can be found with a
little trouble. These things, therefore, I still possess, though I cannot lay my hands on
them at will. I have with respect to them a reasonable and confident expectation of
enjoyment. But if a wild bird escapes from its cage or a thing is hopelessly mislaid,
whether in my house or out of it, I have lost possession of it. Such a loss of the proper
relation to the thing itself is very often at the same time the loss of the proper relation
to other persons. Thus if I drop a shilling in the street, I lose possession on both
grounds. It is very unlikely that I shall find it myself, and it is very likely that
some passer-by will discover and appropriate it.

Sslmond view that possession of a material object is the continuing exercise of a

claim to the exclusive use of it was pointed out by critics as not correct. Holland says
that “the capacity residing in a person of controlling with the assent and assistance of
the state, the action of others.”

Pallock has given his own view of possession that a man is said to possess or be in
possession of anything of which he has the apparent control, or from the use of which
he has the apparent power of excluding others. Pallock , here, have failed to explain
how servants have custody for some purposes and possession for others.

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Therefore to conclude, Possession is a matter of fact and not a matter of right. A claim
may realise itself in the facts whether it is rightful or wrongful. Yet its rightfulness, or
rather a public conviction of its rightfulness, is an important element in the acquisition
of possession. A rightful claim will readily obtain that general acquiescence which
is essential to de facto security, but a wrongful claim will have to make itself good
without any assistance from the law-abiding spirit of the community. An owner will
possess his property on much easier terms than those on which a thief will possess his
plunder. The two forms of security, de facto and dejure, tend to coincidence.
Possession tends to draw ownership after it, and ownership attracts possession.

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