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POSSESSION

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of will also. In possession individual's will is reflected, therefore, it must be


protected. The Massachusetts Bill of Right also states to the same effect.
Kant also held similar view. He says that "the freedom of the will is the
essence of man. It is an end in itself; it is that which needs no further
explanation, which is absolutely to be respected and which it is the very end
and object of all government to realise and affirm. Possession is to be
protected because a man by taking possession of an - object has brought it
within the sphere of his will : He has extended his personality into or over
that object." Hegel is also of the same view. According to him in possession
there is manifestation of individual's will. Therefore, it is entitled to absolute
respect. Many other German philosophers have given theories of possession.
In these theories, generally, "the freedom of will' is made the ground for the
protection of possession. It is submitted that these theories are not of much
practical importance because they are based on metaphysical idea.
Savigny.The jurists of Historical school have given a different theory
of the protection of possession. According to Savigny, Rossessionialunteetpd
because every act of violence is unlawful. It seems that Savigny considers
the protection of possessiZribranch of the protection of the person. It is
submitted that the reason given by Savigny is not very sound, because
possession is protected not only against force but against fraud and other
kinds of disturbances also. Certain other jurists have given their views on
similar lines. The views of these jurists also are of a philosophical nature
and are little concerned with realities. The view of the later jurists are of a
more practical nature.
Windscheid; Ihering.The views of Windsheid is that the 'protection
to possession stands on the game grounds as protection against in . uria and
every one is the equal of eVeiro er in e state, and no one shall raise
himself overthe other.' Ihering, the great sociological jurist makes a new
approach. Accordinito him, possession is ownership_in defensive. One who
exercises ownership in fact (that is possession) is freed from the necessity of
proving title against one who is in an unlawful position. Burns criticises
Ihering on the ground that his approach assumes that the title of disseisors
is to be generally worse than that of disseisees. It is not true in fact. It is
submitted that Ihering' s approach is more practical. His view that
possessors in most cases are the rightful owners might be historically
inaccurate but it is convenient from the point of view of law to regard it
rightful, at least until one comes with a better title.
Holland.Holland's approach is still more realistic. He says that the
prominent motive in the protection of possession is probably a regard for the
preservation of peace. In modern times, following reasons are given for the
:-

(1)Possession is protected for the preservation of peace . It is a


natural human instinct that he does not want easily to part with
what he possesses. Therefore, an interference with possession
leads to violence. Thus the protection given to possession comes to
aid criminal law and it prevents a breach of peace.'
(2)Possession is protected as a part of the law of tort. It was observed
1.Cited in Holmes' Common Law.
2.See the Cri minal Procedure Code, 1973, Sec. 145.