Q Explain the concept of possession?
Q define possession. Explain the modes of acquiring of possession.
Q what is possession? Explain the possession in fact and possession in law.
Q what is possession and what is possessory remedies?
Possession is one of the most important concepts in legal history. The roman law considered the possession of a borrower as mere custody or dentio; he had possession in fact, but not in law. The ownership, control or occupancy upon a land or personal property by a person is called possession. A person may have right of possession on some property while possession does not show ownership. The right of possession means that someone holds something in hand and this person may be the temporary holder or the long-term owner of a thing. Possession means intention to possess. You may have ownership or not but possession depends upon intention and knowledge of possessing.
“ possession is night king of the law”.
Ownership and possession: ownership and possession are slightly different objects. The duration of ownership is more permanent, the duraturation of possession, unless coupled with ownership, is temporary. Ownership points to legal rules of a system of law; possession points to the fact of relationship existing between man and thing. Whereas ownership is strictly a legal concept, possession is both a legal and non-legal or even pre legal concept.
Possession is not only a legal concept, it is factual in many cases. we there turn to the topic of possession in fact.
Possession in fact: possession in fact is a relationship between a person and a thing. To posses means to have physical control. In a primitive society, however, possession would necessarily mean actual physical control over the things. The concept of control is also relative; on some objects control may be absolute while on others it may be very little. Complete absence of power may entail complete lack of poesseion but having possession doesnot involve having absolute power over the subject-matter.in the concept of control another factor is the power to exclude other people from intereference. This exclusion may depend upon a physical strength. It is distinctive feature of possession. It has beend oftern said that there are two elements in possession , namely, corpus possessionis and animus possidenti, the power to use the thing possessed and ground for the expectation that such user will not interefered with on the one hand and the intention to appropriate to oneself the exclusive use of the thing possessed. The factor of intention is a very relevant one in many cases but there are cases where possession may be unaccompanied by intention. The test then for determining whether a man is in possession of anything is whether he is general control of it.
Possession in law: protection to possession is given by law. in the first place, the possessor is given certain rights, such as a right to continue in possession without interference. This legal right is a primary right or right in rem; it is protected by sanctioning rights or rights in personam which allow the possessor civil and criminal remedies against those who violate his primary right. Law will invariably grant remedies to the actual possessor who has been wrongfully dispossessed. There are however cases in which something less than possession in a person may be deemed to be possession in law and conversely, actual possession of someone may be reduced to something lass than legal possession. Possession in law is sometimes possible without knowledge, to lose not only the object but also the legal possession of it. the law requires that I should terminate my intention to retain my rights over it, e.g by throwing it away deliberately.
Outside the law possision is used in absolute sense and in law its used in relative sense. Outside the law we don not speak of a person having possession as against someone else; we say either he has or has not possession. In law we talk rather of possession as something which one person has against another.
Modes of acquisition of possession
Following are the three modes of acquisition of possession
1. Taking: taking is acquisition of possession without the consent of the previous possessor. The thing taken amy or may bot have been already in possession of someone elseand ineither case the taking if it may be either wrongful or rightful. A. Rightful taking of possession: A shopkeeper is entitled to get some money from a customer and the shopkeeper gives possession of the thing to the customer.
b. Wrongful taking of possession: If a thief steal something from the custody of an individual, his acquisition of possession is wrongful taking of possession
c. Original taking of possession: If a person captured a wild animal which does not belong to anybody, such kind of possession is called original taking of possession
2. Delivery: delivery is the acquistition of possession with the consent and co-operation of the previous possessor.
A. Actual delivery: Actual delivery refers to delivering the physical control of a thing to other person is called actual delivery in this case, deliverer can or cannot recollect possession because it all depends on the nature of transaction.
B. Constructive delivery: Constructive delivery refers to an act of transfer of possession by operation of law while actual transfer is impossible in this kind of delivery. Forms of constructive delivery
a. Traditio brevi manu
b. constitutum possessorium
b. Attornment
Kinds of possession
1. Immediate and mediate possession
Immediate possession is also called direct possession. Possession which is acquired or retained directly or personally may be distinguished as immediate possession.
Mediate possession is called indirect possession. Possession held by one man through another is known as mediate possession. There are three kinds of Mediate possession. In First Owner has right of possession on the thing which is under possession of his servant on his behalf and his servant has not right of possession on that thing e.g. buying a book on behalf of owner. In second case, possession is with a person who holds the thing on his behalf or on behalf of other person and who is bound to handover the thing whenever other person desire. At last in third case, possession is with one person but he is bound to return the thing after a certain period.
2. Corporeal and incorporeal possession: Corporeal possession is the possession of a material or physical thing e.g. possession of car, books etc.
Incorporeal possession is the possession of immaterial thing.
3. Representative possession: Representative possession is that which the owner has possession of a thing through his servant
4. Concurrent possession: In the case of concurrent possession , the possession of a thing may be in the hands of two or more persons at the same time but claims are destructive for each other
5. Derivative possession: Derivation possession is basically a lawful possession , and it comes into existence by making a contract between the parties and such possession is without ownership of the property.
7. Adverse possession (possession against one’s interest):Under certain circumstances, an occupant can come into your land, occupy it, and gain legal ownership of it. The legal term for this is “adverse possession.” And it will remove the title of true owner.Following are the conditions for adverse possession
1) Possession must be exercised without violence
2) Possession must be exercised openly i.e. without stealth
3) The possession must be without legal permission
Possessory remedies: legal remedies appointed for the protection of possession are called possessory. Following are some remedies:
1. Illegal dispossession: wherever there has been illegal dispossession law gives a remedy and with that remedy the owner should be content. The owner is compelled to restore a possession to a person.
2. Prove a better title: A defendant is always at liberty to rebut this presumption by proving that the better title in is himself.
3. Prior possession: prior possession is prima facie proof of title. A claimant need not only prove that he has an older possession than that of the defendant. Qui prior esr tempore potior est jure.
4. Violation of possession: A defendant who has violated the possession of the plaintiff is not allowed to set up the defence jus tertii, that is the right if a third person.
