PROTECTION OF POSSESSION AND

POSSESSORY REMEDIES

Submitted by- REDA TAYYABA

BAL.L.B HONS

17-22 {SELF-FINANCE}

FACULTY OF LAW

JAMIA MILLIA ISLAMIA

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INTRODUCTION

In this project work we will be discussing about Possession, and all about it and it’s various other
element. Possession is as difficult to define as it is essential to protect. It is an abstract notion and
it is not purely a legal concept. As with most words in the English language, the word
‘possession’ has a variety of uses and a variety of meanings to itself. . Depending on the context,
The lexicographer maybe found to give meanings such as the following: ‘the holding of
something as one’s own; actual to a sovereign ruler or state; the fact of being possessed by a
demon; the action of an idea or feeling possessing a person; the action of keeping oneself under
control- as in self-possession”.

Possession is an evidence of ownership1 . It transfer 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 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.

1 Section-110 of the Indian evidence act.

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POSSESSION

Possession is considered as the prima facie evidence of ownership. Anyone who interferes with
the possession of another must show either title, or better possessory right. Acting on this
principle, law may have to protect even wrongful possession up to a certain point. The law of
torts gives right of action in respect of the immediate and present violation of possession. In the
case of property, there may be situations when proof of title is difficult, and transfers of property
require intricate formalities. In such situations, it would be unjust to disturb possession or to
impose an obligation to prove a flawless title. The most practical approach would be to protect
possession until somebody proves a superior title. Thus, it may be said that possession confers on
the possessor all the rights of the owner except against the true owner and earlier possessor.
Possession also entitles a person to seek certain remedies called possessory remedies. Possession
is also recognized as one of the methods of acquiring ownership.

According to Salmond:

Few relationships are as vital to man as that of possession, and we may expect any system of
law, however primitive, to provide rules for its protection. Human life and human society, as we
know them, would be impossible without the use and consumption of material things. We need
food to eat, clothes to wear and tools to use in order to win a living from our environment. But to
eat food, we must first get hold of it; to wear clothes, we must have them, and to use tools, we
must possess them. Possession of material things that is essential to life; it is the most basic
relationship between men and things.

According to Henry Maine:

Possession means that contact with an object which involves the exclusion of other persons from
the enjoyment of it. The possession of a thing is as good title against the whole world except the
real owner. Long possession creates ownership by prescription.

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So, according to Sir Thoma Erskine Holland:

“A moment’s reflection must show that possession in any case of the term must imply firstly some
actual power over the object possessed and secondly some amount of will to avail oneself of that
is out of my reach nor the mere power which I have without the least notion of exercising it to
seize a horse which I find standing at a shop door, will suffice to put me in possession of the bird
or horse.

The Romans by whom this was treated with great fullness or subtlety describe these essential
elements of possession by the terms corpus and animus respectively.”

These definitions consist of two elements, which are essential to the concept of possession. One
is physical control over the thing or the physical element, which is called the corpus
possessionis. The second is the determination to exercise physical element, the mental element,
which is called the animus possedendi. In normal situations, when an owner is in actual physical
control of an article, there is no difficulty in understanding the concept of possession.

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Elements of possession:

There are two elements which are essential to the concept of possession. One is a physical
element and consists in physical control over the things and is known as corpus possessionis and
the second is a mental element i.e., animus possedendi which consists in the determination to
exercise that control.

Corpus possessionis:

The objective element of possession is called the corpus and consists in an exclusive physical
control over the thing. According to Savigny, the corpus possessionis consists in the existence of
physical power to exclude foreign interference and secure the enjoyment of the thing to oneself.
This is the corpus required for the commencement of possession. The corpus possessionis can be
discussed under two points, one is in the relation of the possessor to other persons and other is in
relation of the possessor to the thing possessed.

 Relation of possessor to other persons

Salmond says that a thing is possessed, when it stands with respect to other persons in such a
possession with the possessor, having a reasonable confidence that his claim to it will be
respected, is constant to leave where it is. Following are the sources from which such security
may be derived—

I. Physical power of the possessor,

II. Personal presence of the possessor,

III. When the members of the society develop a respect for rightful claims, a person may
also enjoy such security,

IV. For avoiding the interference of others, when a person is able to hide a thing and keep
it in secrecy,

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 V. A person might enjoy security and protection by the possession of other thing, for
example, by keeping the key of a house, protection is afforded to the house and other
things kept there.

 Relation of possessor to things possessed

The second element for the purpose of possession is that the relation between the possessor and
the thing possessed is such as to admit of his making use of the thing as he likes, consistent with
the nature of the thing. There must be no barrier between him and it, inconsistent with the nature
of the claims he makes to it.

Animus possidendi:

The subjective or mental element in possession is called animus possidendi which implies
intention to appropriate to oneself the exclusive use and enjoyment of the thing possessed. It is
the intention of the possessor to include others from interfering with his right of possession, in
animus possidendi following points are important—

I. The possessor must have the exclusive claim over the thing in his possession.

II. The animus or desire to possess need not necessarily be rightful, it may even be
consciously wrongful.

III. The animus need not amount to a claim or an intention to use the thing as owner.

IV. The animus need not be necessarily that of possessor himself.

V. The animus possidendi need not be specific, it may be general. For example, A
may intend to possess all the books on his book-shelf, though he might have
forgotten the existence of some of the books on the shelf. This general intention to
possess all the books in the book-shelf is sufficient animus for A possessing every
book on the shelf.

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Common law on possession

The common law tradition regards ownership as a relative concept as opposed to

an absolute one. This simply means that possession is a good title to a thing
enforceable against anyone who cannot show a better title. Relativity of
ownership, sometimes referred to as relativity of title, lies at the heart of property
law in the common law tradition. Relativity of ownership originates from the
force of possession in the common law.

The very first principle of possession is that it raises a presumption of ownership.

A person in actual possession of a thing is presumed to be the owner of it, albeit,
that this presumption, like any presumption, can be rebutted. In lay language this
may be summarized by saying that ‘possession is nine-tenths the law’. However,
there are sound legal justifications behind the presumption. Firstly, possession in
fact is prima facie evidence of legal possession and that the possessor has all the
legal remedies to protect such possession.2 Possession is said to be the root of title
in that it is only through possession that ownership is born or the chain of title
begun. Thus, an equally important principle operating here is that a person may be
presumed to be the owner of a thing even when that person has no ownership in it,
as, for example, where such a thing is found or taken without the authority of the
true owner. Suppose that B finds a gold watch which in law belongs to A. If B
takes possession, B's possession raises a presumption of ownership, which is good
against the whole world except the true owner who has a better title to it. The true
owner can of course rebut the presumption of ownership, however, until such
time, B will be deemed to have a possessory title to the gold watch.
The concept of possessory title now calls for discussion. A possessory title is one
that is good against everyone except the true owner. Lord Campbell once
explained the rule by commenting that ‘against a wrongdoer possession is title.’
The origins for the rule of possessory title lie in the fact that English law never

2
Pollock and Wright, op. cit, page 20

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 developed a sophisticated system of rules for the vindication of ownership rights.
Instead, the right to ownership largely depended on the right to possession and it
was possession that was accorded remedies. In the words of Pollock and Wright,
‘the common law never had any adequate process in the case of land, or any
process at all in the case of goods, for the vindication of ownership pure and
simple. So feeble and precarious was property without possession, or rather
without possessory remedies, in the eyes of medieval lawyers, that possession
largely usurped not only the substance but the name of property…’3

3
Jeffries v. Great Western Railway Company [1856] 5 E & B 802 at 805

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Foreign cases on possession

Reg. v. riley4

In this well-known case the accused drove off amongst his own lambs, but
without knowing it, sell to the prosecutor. After he had discovered the error he
sold the lamb with his own. He was convicted of larceny. The court rationalized
the decision by on a notion of ‘continuing trespasses based on the ground that the
accused had undoubtedly made himself liable in trespass when he first drove off
the lamb even though he did not know that he had the lamb at the time.

R. v. Ashwell5

In this case the accused had asked the prosecutor to lend him a shilling. In a poor
light, the prosecutor Pulled from his pocket what he thought was a shilling and
handed it to the accused. Later the accused discovered that he had been given a
sovereign by mistake, but he none the less spent the sovereign and thereby
converted it. He was convicted of larceny of the sovereign. In the last resort the
conviction was affirmed by an equally divided Court for Crown Cases Reserved
consisting of fourteen judges. The conviction involved a decision that the accused
did not take possession of the sovereign until he knew it was a sovereign,
although the judges who so held gave different reasons for saying that he had not
taken possession until that time.

4
(1853) Dears.149.
5
(1885) 16 Q.B.D. 190

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Kinds of possession:

 Corporeal and incorporeal possession

Corporeal possession is the possession of a material object whereas incorporeal

possession is the possession of anything other than a material object. In corporeal
possession, the actual use or corpus possession is not essential while in the case of
incorporeal possession, actual continuous use and enjoyment is essential.
Corporeal possession is commonly known as the possession of a right.

In Roman law, corporeal possession is called as ‘possessio coporis’ and

incorporeal possession is known as ‘possessio juris’. According to some jurists
possession can only be corporeal and there is nothing like incorporeal possession.

 Immediate and mediate possession

According to Salmond, in law one person may possess a thing for and on account
of someone else. In such a case the latter is in possession by the agency of him
who so holds the thing on his behalf. The possession thus held by one man
through another may be termed mediate possession while that which is acquired
or retained directly or personally may be distinguished as immediate or direct.

 Concurrent possession

It was a maxim of the civil law that two persons could not be in possession of the
same thing at the same thing at the same time. As a general proposition, two
adverse claims of exclusive use cannot both be effectively realized at the same
time. But, those claims which are not adverse admit of concurrent or duplicate
possession.

 Possession in Fact and Possession in Law

Possession, in fact, is a relationship between a person and a thing which he

possesses. It is also known as de facto possession. Salmond says—

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I possess those things which I have: If I capture a wild animal, I get possession of
it; if it escapes from my control, then I lose possession.

For possession in law, there must be a manifest intent not merely to exclude the
world at large from interfering with the thing in question, but to do so on one’s
account, and in one’s own name. When I send my watch for repair through my
servant, he has got de facto possession.

Possession in law is also known as de jure possession. Law provides protection to

possession in two ways. First, the possessor is given certain legal rights, such as a
right to continue in possession free from interference by others. Secondly, the law
can protect possession by prescribing criminal penalties for wrongful interference
and for wrongful dispossession. By such civil and criminal remedies the law can
safeguard a man’s de facto possession.

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Indian laws on possession:

Specific Relief Act, 1963:

S. 5 of the Act deals with action for recovery of possession of specific

immovable property based on title. The essence of this section is that whoever
proves that he has a better title in a person is entitled to possession. The title may
be on the basis of ownership or possession. The purpose of this section 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 states he or any person claiming
through him may by suit recover possession thereof.

Code of Criminal Procedure, 1973:

S.145 lays down a procedure where a dispute concerning land or water is likely
to cause breach of peace. The Supreme Court has observed that the object of the
section no doubt is to prevent breach of peace and for that end to provide 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. S. 456 of the Act provides that when a person is convicted of
an offence attended by criminal force or criminal intimidation any person has
been disposed 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:

S. 47 of the Act provides for seller’s lien, lien is a right to retain possession of
goods until certain charges due in respect to them are paid. The unpaid seller has a
right to retain the goods until he reserves that price. S. 47 provides that the unpaid
seller of goods who is in possession of them is entitled to retain his position until

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 Payment 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 provides for part delivery where an unpaid seller has delivered a part of the
goods he may exercise his lien on the remainder.

Indian Contract Act, 1872:

S. 168 of the Act provides for right of finder of goods. Section 168 provides that
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 claim such reward and retain such goods till the reward
is given.

S. 169 provides that when a thing which is commonly the subject the 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 the danger of perishing or losing the greater part of its value.

2) When the lawful charges of the finder in respect of the thing found amounts to two thirds
of its value.

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Indian cases on possession:

Mohan Lal v. State of Rajasthan6

In this case court elaborately defined the concept of possession. The court says, It needs
no emphasis that the expression “possession” is not capable of precise and completely
logical definition of universal application in the context of all the statutes. “Possession” is
a polymorphous word and cannot be uniformly applied; it assumes different color in
different context. In the context of Section 18 of the Act once possession is established
the accused, who claims that it was not a conscious possession has to establish it because
it is within his special knowledge.”

When one conceives of possession, it appears in the strict sense that the concept of
possession is basically connected to “actus of physical control and custody”

Noor Aga v. State of Punjab and Anr7

Court held that, “The provisions being exceptions to the general rule, the generality 18
thereof would continue to be operative, namely, the element of possession will have to be
proved beyond reasonable doubt.”

Dharampal Singh v. State of Punjab8 The Court was referring to the expression
“possession” in the context of Section 18 of the NDPS Act. In the said case opium was
found in the dickey of the car when the appellant was driving himself and the contention
was canvassed that the said act would not establish conscious possession.

Saroop Singh v. Banto & Ors.9

In the instant case, the appellant categorically states that his possession is not adverse as
that of true owner; the logical corollary is that he did not have the requisite animus.

6
Criminal Appeal No. 1393 OF 2010
7
Criminal Appeal No. 1034 2008
8
Criminal Appeal No. 1479 of 2008
9
[(2005) 8 SCC 330],

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POSSESSORY REMEDIES

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 civilised 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. 11 was under these
circumstances that it was provided that the original state of affairs
must be restored first. Possession mubt 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, h was
extremely difficult to 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.

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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 restore it and he is free to prove that
he is the owner.

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 of 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. This defence is not valid under
English law as prior possession is always a prima facie proof of title. Though the title of a third
person is not a good defence, 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 true owner,

2. When he committed the act 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.

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Conclusion

It is questionable whether in the twenty first century the concept of possession has
survived the significance it once occupied in the early law. There are number of factors
which have contributed to its demise. The first factor that may impact on the significance
of possession is the human rights one. The Indian limitation Act, 1963, Section 65 of
which, talks about the adverse possession which means a person suppose a tenant is in
possession of a property for 12 years and the owner of the property does not make any
interruption during this time then he loses his legal status of being its owner. This concept
of long sustained possession giving rise to adverse possession of land is seem in violation
of Article 1, Protocol 1 of the European Convention on Human Right.

Second factor that may further impact on the significance of possession is Indian
registration Act, 1908 which aims to create an accurate and complete register of land
titles, does not and cannot accommodate for a system of rules which automatically defeat
the title of the registered proprietor by long sustained possession of land. The objective of
the Indian registration Act, 1908 is to make title to land absolute. In this respect, the
concept of adverse possession, relying on long sustained possession of the land, does not
fit into a system of land registration where ownership is acquired by the act of
registration and not possession.

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Bibliography

 Dias, jurisprudence, 5th edit.

 W. Freidman, legal Theory, 5th Ed

 “Savigny, Holmes, and the Law and Economics of
Possession”-- University of Chicago Law School, journal article 2000
 Coventry Law Journal 2003, “The importance of possession in the common law
tradition”, By
Sukhninder Panesar
 Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable
Property -- law commission of India
 Report by the British Institute of International and
Comparative Law for Her Majesty’s Court Service
September 2006
 http://www.legalindia.com/adverse-possession/
 http://supremecourtofindia.nic.in/FileServer/2015-04-17_1429263295.pdf
 http://indiankanoon.org/search/?formInput=possession%20follows%20title
 http://lawcommissionofindia.nic.in

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