Possession means holding property in one’s power or the exercise of dominion over property. By having possession, one exercises control over something to the exclusion of all others. In ancient society, it was only actual physical possession, which was given recognition and respect by the people. However, latter on, social advancement took place and many facets of possession came into existence by intellectual exercise of eminent jurists and judicial pronouncements by courts to suit the needs and opinion of the day.
Possession, an expression, that has caused many headaches to the jurists and judges throughout the ages, is a word of such varied and almost versatile significance that to look for a comprehensive definition thereof to fit in with any and every piece of legislation is to be asking for the moon. The implication would very often vary from legislation to legislation. The context in which the expression is used and the object sought to be achieved by and the policy behind the legislation in question are, among others, matters, which are to be taken into consideration to ascertain the precise connotation of the expression.
According to Salmond, in whole range of legal theory, there is no other concept more difficult than that of possession. Possession may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of ‘possession’ uniformly applicable to all situations in the contexts of all statutes. In law, the possession is the acquisition of either a considerable degree of physical control over a physical thing, such as land or chattel, or the legal right to control intangible property, such as a credit, with the definite intention of ownership.
According to Pollock & Wright: “When a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.”
Opinions drastically varied, as to whether possession is a question of fact, or of law. While some jurists treated it as a pure question of fact, others held it to be matter of law.
Dias, in his Treatise on Jurisprudence, struck a balance and observed, as under—
“Possession has three aspects—
Possession is an abstract notion. It implies a right to enjoy which is attached to the right to property. It is not purely a legal concept, but is a matter of fact. The issue of ownership depends on rule of law, whereas possession is a question dependent upon fact without reference to law. To put it differently, ownership is strictly a legal concept and possession is both a legal and a non-legal or pre-legal concept. The test for determining whether any person is in possession of anything is to see whether it is under his general control. He should be actually holding, using and enjoying it, without interference on the part of others.1)
Sir Thomas Erkine Holland has summed up the concept of possession in his book ‘The Element of Jurisprudence’ in the following words
“Possession in any sense of the term must imply, first, some actual power over the object possessed, and, secondly, some amount of will to avail oneself of that power. Neither the mere wish to catch a bird which 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 the horse. The Romans, by whom this topic was treated with great fullness and subtlety, describe these essential elements of possession by the terms ‘corpus’ and ‘animus’ respectively.”
Different authors have defined the term possession differently—
According to Markby “possession is the determination to exercise physical control over a thing on one’s own behalf coupled with the capacity to do so.”
Justice Holmes was of the view that “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 a certain intent.”
Maine defines possession as “physical detention coupled with the intention to hold the thing detained as one’s own.”
Kant views that, “There must be the empirical fact of taking possession conjoined with the will to have external object as one’s own.”
According to Salmond, “the possession of a material object is the continuing exercise of a claim to the exclusive use of it. It is a continuing de facto relation between a person and a thing. It is a relation of fact and not one of right. It may be and commonly is a title of right, but it is not a right itself. In fact, possession is a de facto relation between the possessor and the thing possessed.”
There is a maxim of civil law that two persons could not be in possession of the same thing at the same time. As a general proposition, exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot, both be effectually realized at the same time. There are, however, certain exceptions, namely, in the case of mediate possession; two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. Two or more persons may possess the same thing in common just as they may own it in common.2)
The concept of possession, at any rate as it is understood in legal terminology, is a complex one, which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element, namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them, if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation, but an ouster from all those rights, which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense, but the two are not the same. It is also true that there must always be physical ouster from these rights, but that does not necessarily import physical ouster from occupation, especially when this is of just a small room or two in a house and when this occupation is shared with others. The nature of the ouster and the quantum necessary naturally varies in each case.3)
Ordinarily, an owner of property is presumed to be in possession and such presumption is in his favour where there is nothing to the contrary. However, where a plaintiff himself admits that he has been dispossessed by the defendant and no longer in proprietary possession of the property in suit at the time of institution of the suit, the court shall not start with the presumption in his favour that the possession of property was with him. Mere adverse entry in revenue papers is not relevant for proof of adverse possession. Possession is prima facie evidence of title and has to be pleaded specifically with all its necessary ingredients namely, hostile, open, actual and continuous.4)
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.