Possession jurisprudence

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1. BHARATI VIDYAPEETH NEW LAW COLLEGE , PUNE P O SS E SS I O N Presented by – Jaiveer Singh Bhati Vishwajeet Chavan Piyush Singh Kevin Parekh

2. INTRODUCTION "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.

3. DEFINITION Sir Fedrick Pollock’s “I n Common speech a man is said to possess or to be in possession of any thing of which he has the apparent control or form the use of which he has the apparent power of excluding others”

4. DEFINITION JOHN SALMOND “ Possession is the continuing exercise of a claim to the exclusive use of an object. ”

5. CATEGORIES OF POSSESSION 1: Possession in Fact Possession in fact is actual or physical possession. It is physical relation to a thing. 

6. CATEGORIES OF POSSESSION 1: Possession in Law Possession in law means possession in the eye of law. It means a possession which is recognized and protected by law. 

7. MODES OF POSSESSION 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 .

8. MODES OF POSSESSION 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.

9. KINDS OF POSSESSION 1. De facto Possession :                 De facto Possession exists where the thing is in the immediate occupancy of a party. The person in de facto possession has the physical control of the thing to the exclusion of others and has Animus and Corpus over the material object. De facto possession may be described as actual Possession.

10. KINDS OF POSSESSION 2. De jure Possession :                 De jure possession can be described as posssession in law. De jure possession exists when person claims a thing as his own in natural normal legal manner by occupying a thing without any dispute as to his legal right to possess and enjoy the thing. Legal possession may exist with or without property in possession. In case of De jure possession it is just possible that a man I have ceased to live in a house but without intending and to abandon it for good as the owner of the house.

11. KINDS OF POSSESSION 3. Mediate Possession : It is the Possession of a thing through another, either through his friend, servant for agent. As the thing remains, in possession with another, the possessor has lesser degree of physical control over such thing.  Illustration : a) 'X' has a car, which he leaves with his driver. The possession of the driver will be immediate whereas the Possession of 'X' will be mediate. 

12. KINDS OF POSSESSION 4. Immediate Possession : It is also called as Direct Possession.  Direct or primary possession by a person over a particular object, which acquires or gets directly or personally. In immediate possession, as the thing is in possession of the possessor directly, he has higher degree of control over such thing. It means that there is no other person holding the thing.  Illustration :    a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.

13. KINDS OF POSSESSION 5. Corporeal Possession : Those things, which are having physical or material existence, wherein direct relationship with the thing, are possible.  for example,  House has physical existence which can be perceived by our senses. The possession in the house therefore is Corporeal Possession. Therefore corporeal possession is the possession of material things, movable as well as immovable such as the Car , book , pen, wristwatch, etc.

14. KINDS OF POSSESSION 6.   Incorporeal  Possession : It means Possession of immaterial or intangible things. These are the things, which do not have physical existence and therefore cannot be perceived by our senses. Therefore possession in respect of this thing is known as incorporeal possession. for example - Copyright, Trademark, Patent, Goodwill  etc.

15. KINDS OF POSSESSION 7. Adverse Possession :                 It means holding the land on his own behalf of some other person. if adverse possession continues peaceful and undisturbed for that number of years, he can claim ownership and the true owner's right( ownership) gets extinguished.

16. KINDS OF POSSESSION 8. Constructive Possession :                 Constructive possession is not actual  possession it is a possession in law and not possession in fact. According to Pollock and Wright, it is a possession which arises only by the construction of law.  Example :   The delivery of the keys of a building.

17. BRIDGES VS. HAWKESHWORTH 1851 Fact:           In this case a customer found some money on the floor of a shop. Issue:            To whom the money belong ?

18. BRIDGES VS. HAWKESHWORTH 1851 Held:           The court applied the rule of ‘finders-keeper’ and awarded possession of the money to him rather than to the shop-keeper.      The ratio decidendi of this case is that finder of goods is the keeper i.e., has right of possession over it.

19. SOUTH STAFFORDSHIRE WATERWORKS CO. VS 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?

20. SOUTH STAFFORDSHIRE WATERWORKS CO. VS SHARMAN , 1896  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.

21. ELVES V S BRIGG GAS CO. 1886 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.

22. ELVES V S BRIGG GAS CO. 1886 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.

23. POSSESSORY REMEDIES 1)  Possession  is an Evidence of ownership, Section 110 of Indian Evidence Act 1872 - Provides ' when any question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not owner is on the person who affirm that he is not the owner. 2) The possession even if it is wrongful is a good title against the whole world except the true owner. 

24. POSSESSORY REMEDIES 3) Section 47 sale of Goods Act:  right of the seller to lien. The seller if unpaid seller is and if the Possession is still with the seller he can retain the goods. 4) Right of Bailee in contract of bailment: Indian Contract Act 1872, Section. 170, 171 . The Bailee too has a right to lien the goods bailed to unless he is paid remuneration by Bailor till then he is entitled to keep the position of the goods.

25. POSSESSORY REMEDIES 5) In offence of theft in IPC Section 378:  Possession is essential element. Even though the possession was wrongful and the Possession of such thing is taken without the consent of the possessor with dishonest intention.  6)  Possession  is protected as a part of law of tort.  Law protects possession not only from disturbance by force but from disturbance by fraud. The protection thus afforded as a part of the law of tort. 

26. C O N C L U S I O N 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.

27. T H E E N D