POSSESSION

Advocate Bishwo Bhandari

Meaning

 In the primitive stage there was no concept of ownership but only the concept
of possession

 People used to roam here and there in search of foods and clothes

 They used to collect fruits ,root of trees and flesh for their daily consumption

 Later they thought that storage of the goods for their easy life

 From this notion concept of possession was developed

 In Law possession is right but imperfect right
 Right is an legally protected interest enforced by law
 Possession is condition or fact of a person having control over property
 Possession is having better title
 It is prima Facie evidence of ownership
 Possession right is not absolute right but possessory right
 Ownership is absolute right
 Possession is nine tenths of law (does not have full title )
 Possession intents to exercise right
 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."
 Salmond Defines possession by distinguishing between possession in fact and
possession in law

1. Possession in fact means actual relation between a person and thing

2. Possession in law means which has the legal relation
Elements of Possession

Corpus Possessionis
 Corpus implies two things the possessors physical relation to the res
that is object and the relation of the possessor to the rest of the
world
 Possessor acts as guardian or user of thing
 Personal presence of the possessor is necessary
 Eg. corpus implies the ability of the possessor to exclude others
 Child and dead person cannot exclude others to use but they too have
right to the property which can be taken as eg. Of corpus possessionis
Animus possedendi or Animus Domini

 Subjective or mental element in possession is called Animus possedendi

 With intention to exclusive use and enjoyment of the thing possessed
 Holland says apart from physical power to deal ,use , possessor must
have will to exercise of control
 will to exercise of control Is called Animus
Special consideration

 The Animus or desire to posses need not to necessarily be rightful it may be even
be consciously wrongful . A theft has a possession of stolen property no less than
the true owner of those things .
 Animus need not necessarily possess for himself /herself eg.
Servant ,Agent ,Trustee or bailee do not keep things in possession for themselves
for their own use but for other .
 Desire to control may not be specific eg. Librarian has control over every books
of the library not specific one .
 Desire to exclude others may need not to be based on legally enforceable
claim . It may be the act of wrongful act . But this claim cannot be enforced
against lawful owner of the property .
 Animus to exclude others need not be absolute . A land may be in the servitude
of the other ,if so that is encumbrances .
Kinds of possession

Corporeal and Incorporeal Possession

 Corporeal possession means Possession over material
things that can be movable or immovable
 Incorporeal possession means possession related to
intangible objects or things like trademark ,copy
right ,goodwill etc .
Mediate Possession /Immediate possession
 Mediate possession means possession of things through others persons
eg. purchase of book through agent
 Direct or primary possession
 Salmond gave three kinds of mediate possession
1. Possession acquired through an agent or servant
2. Possession acquired through a borrower ,hirer or tenant where the
object can be demanded at the will
3. Where the property is lent for fixed time or delivered as security for
the repayment of the debt
Eg .A has a car and he keeps it in his garage ,this constitute immediate
possession
Immediate possession
 It is direct possession of the goods ,eg. Property or things which is in
possession of person is immediate possession .
 Eg. A has a car and he leaves his car with driver ,possession of driver is
Mediate Possession.
Possession in Law and possession in fact

 Latin maxim (possession in law) possession naturalis and

(possession in fact) possession civilis.
 Actual or physical possession in fact whereas holding certain
objects on behalf of other eg. A gave his land in lease by
contract paper to B .But B. gave that land for cultivation to
C.
 Here A is owner of the land ,B has the possession in law and C
has possession in fact .
Adverse possession

 Possession of goods or property of others as his or her own on behalf of the

owner .
 Possession of other land and dealing with third party as if is of his/her own.

Essential Element of Adverse Possession are as follows

1. Possession must be adequate in continuity
2. Possession must be adequate in publicity
3. Possession must be to the extent to show that it is possession adverse to the
competitor
Here both corpus and animus are necessary to constitute adverse possession
Constructive possession
 Possession arises due to construction of law not by fact . According pollock
and Wright constructive possession construction by law not by fact .Eg
delivery of the keys of the building

Possession of Res Nullis

 The possession of things which do not belong to anyone .
Acquisition of the possession

Possession is acquired when Animus and corpus come into being

1. Taking
2. Delivery
3. By operation of law
Taking

 Taking implies an act exclusively on the part of the person who physically
takes the possession
 It is acquisition of the possession without consent of the previous owner
 It may or may not be lawful
 Transferee acquires the possession without the knowledge of the former
possessor
1. Original -when there is no previous owner eg.Re Nulis
2. Derivative Taking –
When object has previous owner ,It cannot be taken without the consent of the
previous owner .
It is the general principle and is known as wrongful taking but sometime it can be
rightful .

Eg .Taking of luggage of the guest who ran without paying the bills is rightful
taking
Eg.Taking goods by theft wrongful taking
Delivery

 Delivery is the voluntary relinquishment of the possession by one in favor of

another .
 It is with the consent of the another
 It is either transfer of actual or constructive possession
 It is usually lawful modes of possession
 In Actual Delivery thing is physically delivered
 Constructive delivery is not actual or direct
By operation of law

Possession can be acquired by the operation of law

 Death of the person
 A is actually possessing the land and for certain period of time but if he /she
died ,then legally possessory right is transfer to his legal heir by operation of
law
 Inheritance
Through inheritance possessory right can be acquired
Termination of possession
The general rule is that a person having the possessory right connot transfer
his/her right to other he /she have ownership right to transfer title ,to
gift ,to donate ,to deliver etc .possessory right can be terminated by
following ways
1. By abandon
2. Transfer of the title
3. Gift -transfer title by giving gift
4. Donation
5. By operation of law – eg. Death of person ,if person becomes insane
6. By capturing possessory right –Government took land for extension of the
road
7. Delivery –if someone delivers his possessory right to other
Forms of rights available under
possession
 Possession has better claim against all except real owner.
 Continuous possession or after a said period possession turns into a complete
and legal title .
 Possession is an evidence of ownership –the possessor presumed to be the
owner until one proves a better tittle than him/her.
 Most important thing is that all the rules and the principles of right of
possession have been recognized in almost all the legal systems
शिवबहादुर बस्नेत विरूद्ध माया भन्‍ने मैयाँ गुरूङ
निर्णय नं. १०५०५ - बहाल दिलाई घर खाली गरिपाऊँ ।

 कसैको निर्विवाद हक स्वामित्वमा रहेको घर घरधनीको मन्जुरी विना अर्को व्यक्तिले निरन्तर भोग गरी उक्त घरमाथि तला थपेको भन्ने
जिकिरका आधारमा मात्र त्यस घरको स्वामित्व भोग गर्ने व्यक्तिलाई नै प्राप्त हुनुपर्दछ भन्ने जिकिर भोग र स्वामित्वको मान्यताविपरीत
देखिने । भोग स्वामित्व प्रमाणित गर्ने आधारसम्म बन्न सक्छ तर भोगले स्वामित्वलाई नै विस्थापित गर्न नसक्ने ।
धुलो यादव विरूद्ध सूर्यप्रसाद यादव निर्णय नं. १०४६० - अपुताली हक कायम

 कु नै पनि सम्पत्ति स्वामीविहीन (res nullius) रहन सक्दैन । सो सम्पत्तिको स्वामी कानूनबमोजिमको हकवाला वा त्यस्तो कु नै
हकवाला नभएमा राज्यको हुन जान्छ । सम्पत्तिको स्वामीको मृत्यु भएका बखत उक्त सम्पत्तिको स्वामी को हुने भन्‍ने विषय प्रचलित
अपुतालीसम्बन्धी कानूनले निर्धारण गर्ने विषय भएकोले अपुतालीको हकको सम्बन्धमा मृत्यु हुँदाको बखत कायम रहेको कानूनी व्यवस्था
नै आकर्षित हुने ।
दान महर्जन विरूद्ध बाबुलाल विश्वकर्मानिर्णय नं. १०४३८ - हक कायमसमेत

 प्रतिकू ल भोगाधिकार हुनको लागि सम्पत्तिको स्वामीबाहेक अन्य व्यक्तिले लामो समयसम्म आफ्नो सम्पत्तिसरह बिना रोकावट भोग गरी
बसेको अवस्थालाई प्रतिकू ल भोगाधिकारको रूपमा लिनुपर्ने ।

 स्वामित्ववालाको जानकारी बिना, गोप्य रूपमा चोरी, बलपूर्वक र जबरजस्ती रूपमा कु नै सम्पत्ति भोग गरेको अवस्थामा प्रतिकू ल
भोगाधिकार भएको मान्न नमिल्ने ।