JURISPRUDENCE NOTES ON POSSESSION

BY DR RENUKA SONI

MODULE -2
***
The institution of property has a crucial relationship with mankind. There are two
important rights related to property:
1. possession; and
2. ownership.
Regarding possession, as Salmond says, it is the most basic relation between a man
and a thing. Possession of material things is necessary because human life and human
society would rather be impossible without the use and consumption of material things.
As civilization began to progress, the straggle for existence was so bitter that people
began to take possession of certain objects and considered them as their own.
They began to take pride in the possession of those things and were not prepared to
allow outsiders to interfere with them. They were determined to exercise continuous
control to the exclusion of all others. And from a humble beginning, the concept began
to grow and now much progress has been made in this connection.
From the legal point of view also it is a very important concept. Innumerable legal
consequences flow from the acquisition and loss of possession and thus, it is said that
there is no concept in the field of law as difficult as that of possession. Firstly, it the
prima facie evidence of ownership, called as nine out of ten points of law, meaning that
there is a presumption that the possessor of a thing is the owner of it and the other
claimants in order to have that thing must prove their title or better possessory right.
The principle has also been incorporated under Section 110 of the Indian
evidence Act,1872 also, as follows:
Burden of proof as to ownership- when the question is whether any person is the owner
of anything of which he is shown to be in possession, the burden of proving that he is
not the owner is on the persons who affirms that he is not the owner.
As Salmond also says, Possession is the objective realization of ownership, it is in fact
what ownership is in right. It is the de facto exercise of a claim while ownership is the de
jure recognition of that claim. Explaining the relation between possession and
ownership the Supreme Court of India in the case of B. Gangadhar v. B.R. Rajalingam
stated, possession is the external form in which claims normally manifest themselves. It
is in fact, what ownership is in right enforceable at law to or over the thing.
Even a person who wrongfully possesses a property, like a thief, has a good
possessory right over it against the world at large except the true owner. This means
that a person cannot interfere with the possession of another person by setting up a
defence of jus tertii, that is, the title of a third person. Also, dispossessing or ejecting a
person from ones own land and re-entering forcibly is wrongful act even though the
possession of the person turns out to be wrongful. Thus, simply, it can be said that law
protects possession.
Meaning of the term possession
Several jurists have defined the term possession differently, some of the notable
definitions are as follows:
1. Salmond-
The possession of a material object is the continuing exercise of a claim to
the exclusive use of it.
Thus, possession involves two things: (1) claim of exclusive user; and (2)
conscious or actual exercise of this claim, that is, physical control over it. The
former is the mental element called as animus possessionis and the later is the
physical element called as corpus possidendi.
2. Federick Pollock-
He pointed out that in common parlance a man is said to possess or to be
possession of anything of which he has apparent control, or from the use of
which he has the apparent power of excluding others. So, he also talks about the
two elements: corpus possidendi and animus possessionis
3. Savigny-
He in his theory of possession says, the pith of corporeal possession is to be
found in the physical power of exclusion.
However, Salmond doesn’t agree with this view of Savigny that the possessor
 must have the physical power to prohibit outside interference or obstruction. It is
so firstly due to the fact that certain things cannot be physically possessed, like A
may have the right of way over another persons land this doesn’t mean that he
has physical possession of the same. So, Savignys theory wouldn’t be applicable
in case of incorporeal possession. Another reason as explained by Salmond
through an example is: an infant has no physical capacity to exclude others from
depriving him of his possession like a strong and healthy man, nevertheless, if he
holds a coin with him, he would be deemed to have legal possession of it. So, the
true test according to Salmond is not the physical power of exclusion but the
improbability or unlikelihood of interference or obstruction by others.
Markby also says, physical power is rather the possibility of dealing with a thing
as one like and of excluding others.
4. Ihering-
He takes a sociological view of the concept of possession and is of the opinion
that the element of animus possidendi is not material and cannot serve as test of
legal possession. But if the view of Ihering is accepted it would provide no
answer to the question as to why a thief can claim possession of a thing which he
has stolen but not a servant who is possession of his masters goods. Thus,
simply, intention is also a material element of legal possession.
5. Justice Holmes-
He says, to gain possession a man must stand in certain physical relation to the
object and to the rest of the world, and must have a certain intent. Thus, he also
points out to the two elements of possessions.
6. Sir Henry Maine-
According to him, possession means that contact with an object which involves
the exclusion of other persons from the enjoyment of it. Possession denotes
physical contact resumable at will. In other words, it does not signify mere
physical detention but physical detention coupled with the intention to hold the
thing detained as ones own.
Elements of possession
It becomes sufficiently clear from the above-mentioned definitions that there are two
elements of possessions, namely corpus and animus. They can be discussed as
follows:
(a) Corpus of Possession (corpus possession is)-
Corpus implies two things:
1. Possessors physical relation to the res, that is, the object; and
2. The relation of the possessor with the rest of the world
There must exist some physical contact or control of the possessor with the thing so as
to give rise to a reasonable assumption that other people will not interfere with, or
simply, with the possessors right of use, enjoyment of that thing.

This non-interference can be secured in the following ways:

 Physical power of the possessor- the person in possession generally uses walls,
gates, doors, etc. to prevent others from interfering in his possession. For
example, a person is in possession of the money which he locks up in a safe.
 Personal presence of the possessor- the physical power of the possessor and his
personal presence though commonly present together, but it is not necessary that
they must coincide. For example, a coin in a childs hand implies possession even
though he doesn’t have the physical power to exclude interference with its
possession.
 However, possession is not lost by mere temporary absence of the possessor from
it. For example, a person who goes for walk leaving his things in the house,
doesn’t lose possession over them. Another example is where a person enters a
restaurant for dinner, takes off his coat and hangs it on the stand there, is still in
possession of the coat. And someone who takes away the coat dishonestly will be
guilty of theft. Similarly, when a person gives a dinner his silver forks while in the
hands of the guests are still in his possession. 
 Secrecy- if the possessor keeps the thing in a hidden manner, it is also a way of
keeping the thing secured from interference by others.
 Protection afforded by the possession of other things- at times possession of an
object tend to confer possession of certain other things which are connected with it
 or accessory to it. Thus, possession of land confers possession of things that are
on or under it.
 Manifestation of animus domini- the visibility of claim is another element in the de
facto security of the enjoyment of a thing. a manifested intent is much more likely
to obtain the security of general acquiescence than on which it has never assumed
a visible form. Simply, open use of a thing carries with it a prima facie right
mindedness of its possession.
 Lastly, in social context, wrongful possession is not seen with favor, therefore,
respect for rightful, legal claim prevents people from interfering with the legal
possession of others.
(b) Animus Possidendi-
Mere physical contact or control over a thing is not enough, but it must be accompanied
with a will or intention to exercise such control. This mental or subjective element in
possession is called animus possidendi. To define, it is the conscious intention of the
possessor to exclude others from interfering with his right of possession.
In the case of N.N. Majumdar v. State it was held that corpus without animus is
ineffective. Following are a few important points in respect of animus:
 It is not necessary that the animus must be rightful, and may be wrongful as well,
like in case of a thief who is in possession of stolen goods.
 The animus need not be absolute. For example, a person still has legal
possession over a land even though others possess a right of way over that land.
Similarly, it need not be specific also. It can be general like a fisherman has
possession of all the fishes I his net, although he may not know their exact
number, or that a person is said to be possession of all the books in his library
even though he might have forgotten about the existence of some of them.
 It is not necessary that the animus must be to hold the thing as an owner. thus, in
case of a pledge, the pledgee has possession of the thing pledged, although he
intends to retain it in custody as a security to ensure repayment of his debt. The
same applies in case of a tenant too. In other terms, the animus need not be of
the possessor himself, a servant or agent does not keep a thing for his own use
but on behalf of another person.
Distinction between possession in fact and possession in law
Possession in fact or de facto possession is the actual or physical possession. And
possession in law or de jure possession is possession in the eye of law, that is,
recognized and protected by law.
They both most often exist together must not always. For example, a servant holds a
bicycle on behalf of his master, he has actual possession of it, but in the eye of law the
possession is with the master. The Roman Law also recognizes the distinction between
possession in fact and possession in law as possession naturalis and possession civilis.
Kinds of Possession
Following are the various kinds of possession:
(a) Corporeal and Incorporeal Possession-
Corporeal possession is the possession of material or tangible objects both movable
like books, cattle, watch and immovable like house, land, etc. And incorporeal
possession means possession of immaterial or intangible objects like copyright, patent,
goodwill, reputation, etc. Corporeal possession consists of both the elements, corpus
and, but actual use of the thing is not necessary, for example, a person can keep his
ring locked in a safe and never use it but still he will be said to be in possession of the
ring. On the other hand, for incorporeal possession actual, continuous use is considered
is necessary because physical control or contact, with the things, in possession is not
visible as an objective fact.
(b) Mediate and Immediate Possession-
Mediate or indirect possession is the possession of a thing through another person. For
example, A purchases a watch through an agent or servant, he has mediate possession
of it so long as the watch remains with the agent or servant. But if A goes to the market
himself and buys the watch, he is in immediate possession of it.

Salmond has given three categories of mediate possession as follows:

 Possession acquired through an agent or servant;
 Possession held through a borrower or hirer to tenant, where the res, that is, the
object can be demanded at will;
  Possession is held through a person who is bound to return the object after a
certain period or on the fulfillment of certain conditions, like, the pledgee is bound
to return the goods pledged when the debt is paid."
This categorization has been criticized on many grounds. Firstly, has been pointed out
that in case of an agent or servant, he does not possess the thing but merely has
custody of it as here the animus is lacking. Secondly, it is said that two persons cannot
be in possession of the same thing, at the same time as Salmond himself points out,
exclusiveness is the essence of possession. And the situation is different in case of co-
owners as none of them has the right to exclude the other. And it is worth noticing that
the first category has been called as representative possession also, while some call it
as a type of duplicate or concurrent possession and the other two as derivative
possession. Lastly, English law doesn’t recognize this distinction between mediate and
immediate possession while the German law recognizes it.
(c) Concurrent or duplicate possession-
As mentioned above, exclusiveness is the essence of possession. It is not possible that
two persons have an independent as well as adverse claim to possession of the same
thing at one time. But it is possible that two persons have concurrent claims to the
possession of the same thing at the same time, that is, their claims are not mutually
adverse. And in such cases the possession is called as concurrent or duplicate
possession.
 The most important example of concurrent possession is what Salmond calls as
mediate and immediate possession, like of landlord and tenant respectively or of
bailee and bailor, etc.
 The possession of co-owners is another example of concurrent possession and
is called as compossessio in Roman Law.
 Corporeal and incorporeal possession may also co-exist in respect of the same
material object. For example, a person has corporeal possession over a piece of
land while another has a right of way over it, which is incorporeal possession of
it.
(d) Constructive Possession-
It simply means that though the person is not in actual physical contact or control over
the thing but he has the power as well as the intention to deal with it at his will. An
illustration is of constructive possession is when goods sold by one person to another
are stored in a warehouse and the purchaser doesn’t take the actual physical
control over the goods but only the key of the warehouse is given to him by the seller.
Here, the purchaser is in constructive possession of those goods. Similarly, a tenant
may be occupying a house but the landlord has constructive possession of it. Further,
Pollock has explained that constructive possession is possession in law and not
possession in fact. However, Keeton has not recognized this type of possession at all.
(e) Adverse Possession-
It means that a person who doesn’t have legal title to a property, usually a land,
acquires ownership of it based on continuous possession or occupation of the land
without the permission of its legal owner. [xviii] If the adverse possession continues,
undisturbed, for the prescribed period (which is 12 years in India) then the title of the
real owner comes to an end and the possessor becomes the owner thereof. This effect
of the lapse of the prescribed time on titles is called as prescription and has two effects-
positive or acquisitive for the person in whose favor the right of ownership is created,
and negative or extinctive for the person whose right is extinguished. Lastly, the
requisites of adverse possession can be mentioned as:
 Continuity of possession for the prescribed period
 Adequate publicity, that is, the possession must not be held in secrecy but
openly,
 Peaceful or undisturbed possession for the prescribed period
Modes of Acquisition of Possession
There are three modes of acquiring possession as follows:
(a) By Taking-
it is the acquisition of possession without the consent of the previous owner and it may
either be rightful or wrongful.

For example, as Keeton says, where an inn-keeper seizes the goods of his guest, who
has failed to pay his bill, there is acquisition of possession by rightful taking. But where
a thief steals something, he acquires possession wrongful taking. But it is not necessary
for acquisition of possession by taking that the thing must be already in the possession
of some other person. For example, res nullis, that is, a thing belonging to no one, like,
a wild animal or bird, etc. and acquiring possession of a res nullis is also by way of
taking.
(b) By Delivery-
it is the acquisition of possession with the consent of the previous owner and is of two
types, actual and constructive.
Actual delivery is the physical or actual transfer of a thing from the hands of one person
to another. It is of two kinds, one in which the owner still has a mediate possession like
when A lends his book to B, and the other in which the owner does not retain even the
mediate possession like when A sells the book to B.
(c) Operation of law-
Possession can be acquired by the operation of law also like in case of adverse
possession and of succession.
Conclusion
It can be safely concluded that possession is the most fundamental relation between a
man and a thing, but one of the most difficult concepts of the field of law. It is a very vast
concept consisting of various kinds and modes of acquisition which deal with the
acquisition of res nullis too. It is the prima facie evidence of ownership and is protected
by law through various possessory remedies like the doctrine of jus tertii and statutory
remedies are also available like section 5 and 6 of the Specific Relief Act, 1963, section
145 of the Code of Criminal Procedure, 1973,section 47 and 48 of the Sale of Goods
Act, as well as section 167 and 168 of the Indian Contract Act, 1872. Also, for de jure
possession both the elements of corpus and are necessary, as opposed to de facto
possession.