Possession : Meaning, Definition and Kinds of possession

According to Salmond, in the whole range of legal theory, there is no conception more difficult than that

of Possession. Possession is the most basic relation between man and a thing. Possession is an evidence of

ownership.

1) Meaning:

"Possession" literary means physical control over a thing or an object. It expresses the closest

relation of fact that can exist between a thing and the person, who possess it. In law, possession means it

includes not only physical control over a thing but also an intention to exercise that physical control.

Example: A has an article in his hand. In other words, he is in possession of that article. The person who is

in possession is called a 'Possessor'. In human life, consumption of material things is very essential and it

would be Impossible without the position of the material things. Therefore the concept of possession is of

utmost practical importance in human life.

2) Definition:

The concept of possession is though basic and essential in human life, it is a difficult to define.

There is no fixed or precise definition of possession because it is legal as well as factual concept. Supreme

Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that it is

impossible to work out a completely logical and precise definition of Possession uniformly applicable to all

situation in the context of all the statutes.

It is very difficult to define the term Possession. Some Jurists have given different definitions.

John Salmond:

Salmond defines Possession as, "possession is the continuing exercise of a claim to the Exclusive

use of an object."

Savigny:

Savigny defines Possession as, "intention coupled with physical power to exclude others from the

use of material object.

 Salmond criticized Savingy's definition and ground that Savingy committed an error by including

the element of physical power in his definition.

O.W. Holmes:

Holmes defines Possession as, "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 certain intent."

Maine:

Maine defines the possession as, "physical detention coupled with the intention to hold the

things detained as one's own.

Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In common speech a man is said to possess to be

in possession of anything of which he has the apparent control from the use of which he has apparent power

for excluding others."

Ihering:

The best among them is the definition given by Ihiring. According to him, "whenever a person

looked like an owner in relation to a thing, he had possession of it unless Possession was denied to him by

rules of law based on practical convenience."

3) Elements of Possession

From the above definition we could see in that possession has two essentials -

1) Actual power over the object possessed. i.e. corpus possessionis and

2) Intention of the possessor to exclude any interference from others. i.e. animus possidendi.
 According to John Salmond, both corpus and animus must be present to constitute Possession.

Ownership is a legal concept whereas Possession is factual as well as legal concept.

The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman Law.

4) Categories of Possession: Possession is divided into two categories.

a) Possession in fact and

b) Possession in law.

Possession in fact is actual or physical possession. It is physical relation to a thing. Possession in law

means possession in the eye of law. It means a possession which is recognized and protected by law. There

is sometimes a discrepancy between possession in fact and position in law, although usually possession

exists both in fact and in law in the same person. A person who is in de facto possession of a thing also

comes to have de jure possession.

6) Modes of acquiring possession:

There are two modes of acquiring possession i) Delivery and ii) Possession.

i) Delivery: Delivery completes voluntary act from one person to another. The transferor gives actual

position to the transferee. It is usually a lawful mode of possession. Delivery may be actual of constructive.

In actual delivery the thing is physically delivered.

ii) Taking: Taking implies an Act exclusively on the part of the person who physically takes the Possession.

It is acquisition of the Possession without the consent of previous Possessor. It is the possession without the

consent of the Possessor. Sometimes it is said to be unilateral act. Transferee acquires the possession

without the knowledge or consent of the former Possessor of the thing. It is usually possessio-civilis. It may

or may not be lawful. If it is lawful then it is legal possession. i.e. possessio-juri.

See in Detail Methods of Transfer of possession

7) Kinds of possession: See ⏩⏩ Important Kinds of possession.

8) Possessory Remedies:

Possessory Remedies are those which exists 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 a possession on the ground of his ownership.

9) Why law protects possession?

There are many reasons for the protection of possession Read here → Reasons Law protects

Possession

10) Relevant case law:

a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Fact:

In this case the plaintiff was the owner of the land. He gave his land to defendant Company on lease

for the purpose of excavation and erection of gas works thereon. During the course of excavation one of the

man of the defendants Company found a pre-historic boat buried 6 feet below the surface.

Issue:

Issue before the Court was whether the boat belonged to the landlord or lessee.

Held:

J. Chitty observed that the landlord was entitled to the boat against the Company though it was

discovered by the Company. It was observed that it was immaterial that the landlord was not aware of the
existence of the boat. He was in possession of the ground not merely of the surface. Hence everything that

lay beneath the surface down to the center of the earth consequently in possession of the boat. It did not

matter that the plaintiff was not aware of the existence of the boat.

b) South Staffordshire Waterworks Co. V. Sharman, 1896.

Fact:

In the instant case Plaintiff Company appointed defendant servant to clean out a pond upon their

land and in doing so he found certain gold ring at the bottom of it. Dispute arose between plaintiff Company

and the defendant servant as to the possession of the gold ring.

Issue:

To whom the Gold ring belong?

Held:

The plaintiff Company was in first possession of the gold ring and is not the defendant, who

acquired no title to them. It was observed that the possession of land carries with it in general possession of

everything which is attached to or under the land.

11) Conclusion:

Possession is the most basic relation between man and a thing. Possession is prima facie a proof or

an evidence of ownership there is no fixed or precise definition of possession because it is legal as well

factual concept. The four essentials of possession are subject matter of possession, physical control,

intention and knowledge. Possession is nine points in law and law provides remedies to person having

possession