Definition: Possession is described as “a legal state of things importing definite and valuable rights of which the law takes notice”.
The marks of possession, with regard to property, depend upon the nature of the property. It is not necessary in order to prove possession to prove an actual bodily continuous possession.1) Possession consists in a physical act accompanied by an act of the will. The first is not necessarily connected with any bodily contact with the whole or any part of the subject, but it implies the physical power of dealing with the subject immediately, and of excluding any foreign agency over it. The act of the will must contemplate a dealing with the subject as one's own property, and not on behalf of another. The continuance of the possession depends on the union of these essentials; and hence, if either one or the other, or both together, cease, the possession is lost.2)
Possession involves a relation of fact between a person and an object, which relation is exercised by that person on his own behalf. If it is exercised on behalf of another that relation constitutes custody only, and the person having custody only is not in possession. Although possession implies the detention of what we possess, yet, this detention ought not to be so understood as if it was necessary to have always either in our hand or in our sight things of which we have possession. But after possession is once acquired it is preserved without actual possession.3) The owner of a thing may retain possession of it through a servant, trustee, or other representative. A landlord is in constructive possession of the soil, through his tenant.4) This doctrine of constructive possession applies only in favour of a rightful owner and is not extended in favour of a wrong-doer.5) When there is an intention to hold a thing as owner, it is not necessary that it should be enjoyed in any particular way, but it is sufficient if some overt act is done upon the thing in the execution of such intention.6)
One who relies on de facto possession as investing him with those rights, and entitling him to the appropriate remedies, has to satisfy the Court that he, rather than any other person, was, at the time of the wrong he complains of, in a certain relation to the thing of which the use or enjoyment is in question. He must prove a state of facts which will be sufficient in law to support his claim. In regard to immovables, this relation cannot obviously be comprehension, or a complete physical control applied to the thing as a whole. It is impossible to possess a house, a wood, or a field, as we possess the money in our pockets. All that possession of immovables can consist of is:
With regard to these 'acts of dominion,' two things may be remarked:
As to their nature. By possession is meant possession of that character of which the thing is capable7); and what amounts to a sufficient occupation must depend upon the nature of the soil, and the uses to which it is to be applied. Thus, acts which constitute possession of a house, or of arable land, or of land held for shooting purposes, or of mines below the surface of the ground, may all be of a different nature respectively.
Possession is not necessarily the same thing as actual user. The nature of the possession to be looked for, and the evidence of its continuance, must depend upon the character and condition of the land in dispute. Land is often either permanently or temporarily incapable of actual enjoyment in any of the customary modes as by residence or tillage or receipts of a settled rent. It may be incapable of any beneficial use, as in the case of land covered with sand or by inundation; it may produce some profit, but trifling in amount, and only of occasional occurrence as is often the case with jungle land. In such cases it would be unreasonable to look for the same evidence of possession as in the case of a house or a cultivated field. All that can be required is that the plaintiff should show such acts of ownership as are natural under the existing condition of the land, and in such cases, when he had done this, this possession is presumed to continue as long as the state of the land remains unchanged, unless he is shown to have been dispossessed.8)
Acts of ownership over part of the property may be evidence of the possession of the whole.9) When a party proves possession of a certain portion of a tract of land with a defined boundary, his possession may be presumed to extend over the remainder of the tract.10)
Proof that no one else has so dealt with the property. There should be an exclusive exercise of acts of dominion.
The possession of a movable is lost, when another makes himself master of it, either secretly or by force ; the exclusion is then complete. But as to land, it is clear that although by mere absence the power of dealing with it at will become a more remote relation, it is not at all put an end to by it. There must be something in addition to absence; hence, he who occupies land in the absence of the possessor, is not considered to have ousted him, till the possessor has had notice, and is either unable to enter upon his possession, or voluntarily refrains from so doing.
Possession may be either;
A party claiming to have possession without title must show that he has a de facto possession, that is to say, actual physical prehension of the particular portion of the soil to the substantial exclusion of all other persons from participating in the enjoyment of it. What amounts to such a de facto possession must in all cases be a question of degree, but the physical prehension must extend over substantially the whole subject-matter over which the possession is claimed.
A person in possession cannot be dispossessed even by the true owner except according to the due process of law. If such a person is dispossessed otherwise than through legal process, he can maintain an action under section 6 of the Specific Relief Act, 1963 within 6 months of dispossession.
It is obvious that two persons claiming adversely cannot be in possession of the same portion of the land one and the same time, therefore a person claiming without title cannot be said to have a de facto possession unless the true owner has been dispossessed. Further, in order that occupation may amount to what the law understands by possession, not only must it be exclusive, but it must also have been had animo possidendi: the party claiming to have had possession must have intended to deal with the land as owner. One who without title acquires possession of the surface of land, prima facie thereby acquires possession of the minerals also.11)
A possession which satisfies the two conditions;
Possession without title may be lost in any one of the following ways :—
A person in possession of land without title has an interest in the property which is heritable and good, against all the world except the true owner, an interest which, unless and until the true owner interferes, is capable of being disposed of by deed or will, or by execution sale, just as in the same way as it could be dealt with if the title were un- impeachable.12)
The possession of a person having title to the land differs from that of a person who has no title in this, that it need not be exclusive; the fact that others are in the habit of wrongfully using a way over his land will not cause him to be any the less in possession of the soil of the way, for his title will, in such case, give him the constructive possession.
Possession that has been recognised in law as entitled to protection and enforcement is such as was not acquired nec vi nec clam nec precario ab adversario. A person who has acquired possession from his adversary either by force or clandestinely (clam) or by permission (precario) cannot be regarded as having acquired juristic possession. Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner's title. Hence it is itself a kind of title, and it is a natural development of the law, whether necessary or not, that a possessor should be able to deal with his apparent interest in the fashion of an owner not only by physical acts but by acts in the law, and that as regards every one not having a better title those acts should be valid.