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Published : August 15, 2012 | Author : sanjana0409
Category : Real estate laws | Total Views : 6109 | Rating :

sanjana shrivastava. i am currently pursuing my fifth year in symbiosis law school.


The term possession expresses the physical relation of control exercised by a person over a thing. Salmond says, “the continuing exercise of a claim, to the exclusive use of a thing constitutes the possession of it”. Maine defines possession as “physical detention coupled with the intention to hold the thing detained as ones own”. Pollock on the other hand has given a new meaning to the word possession. He says that “in common speech a man is said to possess or be in possession of anything which he has the apparent control, or from the use of which he has the apparent power of excluding others”. The Supreme Court has opined in the case of Superintendent v Remembrance R that, “possession is a polymerphous term which may have different meaning in different contexts. It is impossible to work out a completely logical definition of possession uniformly applicable to all situations in context of all statutes.”

Why Possession Is Protected:
The general problem which has always exercised the minds of jurists is why possession is protected by the law when the possessor is also an owner. Kant, Rousseasu and the Masachussetts Bill of Rights agree that all men are equal and one or the other branch of that declaration has afforded the answer to the question why possession should be protected. Kant and Hegel start from freedom. Possession is to be protected because a man by taking possession of an object has brought it in within the sphere of his will. He has extended his personality into that object.
There are many reasons for the protection of possession:

Protection of possession aids the criminal law by preserving the peace. According to Savigny, the protection of possession is a branch of protection to the person. Possession is protected in order to obviate unlawful acts of violence against the person in possession. Interference with possession leasds to disturbance of peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a court of law. According to Ihering, possession is ownershipof the defensive. The possessor must be protected and must not be asked to prove his title. Possession is the evidence of ownership.
Possession is protected as a part of the law of Torts. Law protects possession not only from disturbance by force but from disturbance by fraud.

According to the philosophical school of jurists, possession is protected because a man by taking possession of an object has brought it within his will. The freedom of will is the essence of personality and has to be protected so long as it does not conflict with the universal will which is the State. Possession is protected as he has projected his personality over the object of possession. Possession is the embodiment of the will of man. Possession is the objective realisation of free will and the will of a person as expressed in possession must be protected.

Possession is protected as a part of the law of property. According to Cairns, “possession was originally protected to aid the law of crime as well as tort. In the early stages of the development of the law of property when proof title to property was difficult, it was considered unjust to cast on a person whose possession was disturbed the burden of proving a flawless title. Thus the law assumed that the possessor was the owner unless some superior title was shown in someone else. In this way possession came to be protected by law.”

The view of Salmond is that distinct possessory remedies are not required and the punishments of criminal law as well as that of the law of torts are sufficient to prevent the evils of self help. An owner who has dispossessed a trespasser need not be required to deliver possession to the trespasser and recover it back in an independent proprietary action. As for assistance rendered to the law of property, the modern law of evidence can adjust the burden of proof suitably and avoid the duplication of possessory and proprietary remedies.

While these considerations are entitled to suitable weight, expediency requires that as such possession must be protected. In India a compromise has been made between proprietary and possessory remedies. If the dispossessed owner promptly brings his suit within 6 months he is allowed to succeed merely om proof of possession as against the true owner. If he brings his suit after the stipulated period, he is non suited if the defendant proves a superior title to himself.

Possessory Remedies:
Possessory remedies are those which exist for the protection of possession even against ownership. In many legal systems possession is a provisional or temporary title 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 a true owner who retakes his own must frost restore his possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.

There is a strong necessity for possessory remedies to be recognised. The reason for this is:
Possession often amounts to evidence of ownership. A finder of goods becomes its owner against the whole world except the true owner. This is on the ground that he is in possession of it. If a person is in adverse possession of a property for 12 years or more he becomes the legal owner of that property and the right of the original owner is extinguished.

The evils of violent self help are very serious and in all civilised countries, those are prohibited. In order that force should be avoided by the owners and that lawful means are used there should always be protection of possessory rights.

Another reason for possessory rights is to be found in the serious imperfection of early proprietary rights. Those were cumbersome, dilatory and efficient. The position of the plaintiff was a very difficult one and no person was to be allowed to occupy the advantageous position of the defendant. It was under these circumstances that it was provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then alone the claims of other persons can be settled.

Another reason for possessory remedies is that it is always more difficult to prove ownership than to prove possession. Hence it is unjust that a person who has taken possession of property by violence should not be allowed to transfer the heavy burden of proof from his own shoulders to that of the opponent. He who takes a thing by force must restore it and he is free to prove that he is the owner.

Possessory Remedies Under Indian Law:
The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. Some statutory provisions are as follows:
v Specific Relief Act, 1963: S. 5 of the Act deals with action for recovery of possession of specific immovable property based on title. The essence of this section is that whoever proves that he has a better title in a person is entitled to possession. The title may be on the basis of ownership or possession. The purpose of this section is to restrain a person from using force and to disposses a person without his consent otherwise than in the due course of law, S. 6 states he or any person claiming through him may by suit recover possession thereof.

S.5 & 6 give alternative remedies and are mutually exclusive

v Code of Criminal Procedure, 1973: S.145 lays down a procedure where a dispute concerning land or water is likely to cause breach of peace. The Supreme Court has observed that the object of the section no doubt is to prevent breach of peace and for that end to provide speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status qup until their rights are determined by a competent court. S. 456 of the Act provides that when a person is convicted of an offence attended by criminal force or criminal intimidation any person has been disposed of any immovable property the court may within one month after the due date of conviction order that possession of the same be restored to that person.

v Sale of Goods Act, 1930: S. 47 of the Act provides for sellers lien, lien is a right to retain possession of goods until certain charges due in respect to them are paid. The unpaid seller has a right to retain the goods until he reserves that price. S. 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his position until payment of the price in the following cases:

1) where the goods are being sold without any stipulation as to credit
2) where the goods are being sold on credit but the term of credit has expired.
3) Where the buyer becomes insolvent.

S.48 provides for part delivery where an unpaid seller has delivered a part of the goods he may exercise his lien on the remainder.

v Indian Contract Act, 1872: S. 168 of the Act provides for right of finder of goods. Section 168 provides that the finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner but he may retain the goods against the owner until he receives such compensation and where the owner has offered a specific reward for the return of goods lost, the finder may claim such reward and retain such goods till the reward is given.

S. 169 provides that when a thing which is commonly the subject the sale is lost, if the owner cannot with reasonable diligence be found or if he refuses upon demand to pay the lawful charges of the finder, the finder may sell it:

1) When the thing is in the danger of perishing or losing the greater part of its value.
2)When the lawful charges of the finder in respect of the thing found amounts to two thirds of its value.

V Adverse Possession: Adverse possession is wherein by physically occupying it for a long period of time. One may acquire property without the consent of the actual title holder if one possesses it long enough and meets the legal requirements. Adverse possession is one kind of involuntary transfer of ownership rights in real property. Under the doctrine of adverse possession, the true owner of a piece of real property cannot bring an action to eject someone who has actually possessed the property for a certain period of time.

Possessory Remedies And Doctrine Of Jus Tertii: Possessory remedies have been rejected by English law but other provisions have been made to protect possession, there are three rules in this connection, prior possession is prima facie proof of title, he who is in possession first in time has a better title than the one who has no possession, a defendant is always at liberty to rebut that presumption by proving that he has a better title. A defendant who has violated the possession by the plaintiff is not allowed to set up the defence of jus tertti, which means that he cannot plead that – though neither the plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. English law considers jus tertii as a good defence under the following circumstances,

1) when the defendant defends the action on behalf of and by the authority of the true owner.
2) When he committed the act he complained of, by the authority of the true owner.
3) When he has already made satisfaction to the true owner by returning the property to him

The  author can be reached at: sanjana0409@legalserviceindia.com

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