Possession

Faculty of law Jamia Millia

Islamia
2014-15
Submitted to--Mr. Hakim
Yasir Abbas
Submitted By--Saif Ali
3rd year v SEM.
Roll no. --13-1734

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Table of contents
Contents

Table of cases
Acknowledgment
Definition of possession
Elements of possession
Early law on possession
Common law on
possession
Foreign cases on
possession
Kinds of possession
Indian laws on possession
Indian cases on
possession
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Page no.

3
4
5
10
13
15
18
22
24
28

Conclusion
Bibliography

Case name

30
31

Citation

Reg. v. riley

(1853) Dears.149

R. v. Ashwell

(1885) 16 Q.B.D. 190

R. v. Moore

(1861) Le. And Ca. 1

Cartwright v. Green

(1802), 8 Ves. 405

Hibbert v. Mc Kiernan

(1948) 2 K.B.142

Ruse v. Read

(1949) 1 K.B. 377

Rose v. Matt

(1951) 1 K.B. 810

Mohan Lal v. State of

Rajasthan
Noor Aga v. State of Punjab
and Anr.
Dharampal Singh v. State of
Punjab
Saroop Singh v. Banto & Ors.

Criminal Appeal No. 1393 OF

2010
Criminal Appeal No. 1034 2008

T. Anjanappa & Ors. v.

Somalingappa & Anr.

[(2006) 7 SCC 570]

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Criminal Appeal No. 1479 of

2008
[(2005) 8 SCC 330],

Acknowledgment
First of all I would like to thank Mr. Hakim Yasir Abbas sir without his
guidance and support the project would not have been completed. I would
also like to thank the library staff faculty of law for their support and
guidance.

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Definition and
philosophy of
possession:

ossession is as difficult to define as it is essential to

protect. It is an abstract notion and it is not purely a legal
concept. As with most words in the English language, the
word possession has a variety of uses and a variety of meanings.
Depending on the context, The lexicographer maybe found to
give meanings such as the following: the holding of something
as ones own; actual to a sovereign ruler or state; the fact of
being possessed by a demon; the action of an idea or feeling
possessing a person; the action of keeping oneself under
control- as in self-possession1.
The lexicographer, in attempting to assign the meaning of the
word as used in English law, may well find himself saying
something like the following: The visible possibility of
exercising over a thing such control as attaches to lawful
ownership; the detention or enjoyment of a thing by a person
himself or by another in his name; the relation of a person to a
thing over which he may at his pleasure exercise such control as

1 The Shorter Oxford English Dictionary (3rd dc.) vol. Ii, 1550.

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the character of the thing permits, to the exclusion of other

persons.2
Possession is considered as the prima facie evidence of
ownership. Anyone who interferes with the possession of another
must show either title, or better possessory right. Acting on this
principle, law may have to protect even wrongful possession up to
a certain point. For instance, if a thief steals someones watch, he
has possession, which the law will protest against everyone except
the owner, or some person lawfully acting on the owners behalf.
The law of torts gives right of action in respect of the immediate
and present violation of possession. In the case of property, there
may be situations when proof of title is difficult, and transfers of
property require intricate formalities. In such situations, it would
be unjust to disturb possession or to impose an obligation to
prove a flawless title. The most practical approach would be to
protect possession until somebody proves a superior title. Thus, it
may be said that possession confers on the possessor all the rights
of the owner except against the true owner and earlier possessor.
Possession also entitles a person to seek certain remedies called
possessory remedies. Possession is also recognized as one of the
methods of acquiring ownership.
According to Salmond:
Few relationships are as vital to man as that of possession, and
we may expect any system of law, however primitive, to provide
rules for its protection. Human life and human society, as we
know them, would be impossible without the use and
consumption of material things. We need food to eat, clothes to
2The Shorter Oxford English Dictionary. Loc. Cit.

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wear and tools to use in order to win a living from our

environment. But to eat food, we must first get hold of it; to wear
clothes, we must have them, and to use tools, we must possess
them. Possession of material things that is essential to life; it is
the most basic relationship between men and things.
Salmond wrote, whether a person has ownership depends on
rules of law; whether a person has possession is a question that
could be answered as matter of fact and without reference to
law at all. Inherent in this idea is that the concept
of possession exists before legal society and is therefore
independent of, and, prior to the law. The idea of possession as
involving detention is taken by jurists to suggest that, unlike
ownership, which is essentially a de jure relationship between a
person and a thing, possession is a de facto relationship between
a person and a thing.
According to Henry Maine:
Possession means that contact with an object which involves the
exclusion of other persons from the enjoyment of it. The
possession of a thing is as good title against the whole world
except the real owner. Long possession creates ownership by
prescription.
Ihering adopts a more objective theory,
A man possesses who is, in relation to the thing, in the position
in which an owner of such things ordinarily is, animus being
merely an intelligent consciousness of the fact.
According to Sir Fredrick Pollock:

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In common speech, a man is said to posses or to 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.
Possession is the combination of two essentials, corpus
possessionis and animus possedendi, the physical control over
the object and the intention of that physical control respectively.

So, according to Sir Thoma Erskine Holland:

A moments reflection must show that possession in any case
of the term must imply firstly some actual power over the
object possessed and secondly some amount of will to avail
oneself of that is out of my reach nor the mere power which I
have without the least notion of exercising it to seize a horse
which I find standing at a shop door, will suffice to put me in
possession of the bird or horse.
The Romans by whom this was treated with great fullness or
subtlety describe these essential elements of possession by the
terms corpus and animus respectively.
These definitions consist of two elements, which are essential to
the concept of possession. One is physical control over the thing
or the physical element, which is called the corpus possessionis.
The second is the determination to exercise physical element, the
mental element, which is called the animus possedendi. In
normal situations, when an owner is in actual physical control of
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an article, there is no difficulty in understanding the concept of

possession.
For instance, when I send my watch for repair through my
servant, I cease to have actual physical custody of the watch. The
servant is in custody of the watch, or we may say that he is in
possession of the watch. This is de facto possession. This must
be distinguished from the possession in law or de jure
possession. For possession in law, there must be a manifest
intent not merely to exclude the world at large from interfering
with the thing in question, but to do so on ones account, and in
ones own name. When I send my watch for repair through my
servant, he has got de facto possession, while I have de jure
possession. when somebody tries to forcibly take the watch from
him, he may resists the relief aggressor. He does it not on his
behalf, but on behalf. He has the feeling in his mind that he
resists the thief not for himself, but for his master. If I myself
take the watch to the repair shop and a stranger forcibly tries to
take it from me, I resist him with the feeling that the watch is my
own, and I possess the right to exclude all others in the world. In
other words, I resist the aggressor on my account, and in my own
name. This is de jure possession.

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Elements

of possession:

There are two elements which are essential to the concept of

possession. One is a physical element and consists in physical
control over the things and is known as corpus possessionis and
the second is a mental element i.e., animus possedendi which
consists in the determination to exercise that control.

Corpus possessionis:
The objective element of possession is called the corpus and
consists in an exclusive physical control over the thing. According
to Savigny, the corpus possessionis consists in the existence of
physical power to exclude foreign interference and secure the
enjoyment of the thing to oneself. This is the corpus required for
the commencement of possession. The corpus possessionis can be
discussed under two points, one is in the relation of the possessor
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to other persons and other is in relation of the possessor to the

thing possessed.

Relation of possessor to other persons

Salmond says that a thing is possessed, when it stands with
respect to other persons in such a possession with the
possessor, having a reasonable confidence that his claim to it
will be respected, is constant to leave where it is. Following
are the sources from which such security may be derived
I.
Physical power of the possessor,
II. Personal presence of the possessor,
III. When the members of the society develop a respect for
rightful claims, a person may also enjoy such security,
IV. For avoiding the interference of others, when a person is
able to hide a thing and keep it in secrecy,
V. A person might enjoy security and protection by the
possession of other thing, for example, by keeping the key
of a house, protection is afforded to the house and other
things kept there.
Relation of possessor to things possessed
The second element for the purpose of possession is that the
relation between the possessor and the thing possessed is
such as to admit of his making use of the thing as he likes,
consistent with the nature of the thing. There must be no
barrier between him and it, inconsistent with the nature of
the claims he makes to it.

Animus possidendi:
The subjective or mental element in possession is called
animus possidendi which implies intention to appropriate to
oneself the exclusive use and enjoyment of the thing
possessed. It is the intention of the possessor to include
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others from interfering with his right of possession, in

animus possidendi following points are important
I.
The possessor must have the exclusive claim over the
thing in his possession.
II. The animus or desire to possess need not necessarily be
rightful, it may even be consciously wrongful.
III. The animus need not amount to a claim or an intention
to use the thing as owner.
IV. The animus need not be necessarily that of possessor
himself.
V. The animus possidendi need not be specific, it may be
general. For example, A may intend to possess all the
books on his book-shelf, though he might have
forgotten the existence of some of the books on the
shelf. This general intention to possess all the books in
the book-shelf is sufficient animus for A possessing
every book on the shelf.

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Early law

on possession:

In the early law, the concept of ownership and possession was not
clearly divorced. This was evident from the fact that it was
impossible to gain recognition of a right to possess which was
good against the whole world or to vindicate any right to possess
without reference to the concept of possession itself. In the early
law possession was explained through the concept of seisin; a
concept described as lying at the root of the historical
development of English land law.3 The idea behind seisin lay in
the actual or de facto possession of land which was determinate of
whether a proprietary right in land was granted. There were no
abstract ideas of title and right; instead possession decided
whether a person had a right to land. As such seisin was not a
question of right; but rather a question of fact, although fact
might then lead to a right through the passage of time.
Long sustained possession meant peace and order and seisin
literally denoted quiet and peaceful enjoyment of land. 4 From the
3 K. Gray, Elements of Land Law 2nd ed. (Butterworths 1993) page 61

4 See, Pollock and Maitland History of English Law 2nd Ed. (Cambridge University Press
1898) vol II page 34
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Fifteenth Century onwards seisin became confined to persons who

held an estate in freehold and seisin gave a presumption of
ownership of land. A person who claimed land as a result of losing
it to a wrongful possessor had to show his seisin, in other words
his possession, in order to recover land back. However, given that
seisin was a question of fact, even a person who wrongfully took
possession of land could raise a presumption of ownership, which
could only be defeated by a better showing of seisin in another
person, that is the previous possessor pointing to a better seisin. 5
The concept of seisin was not particular to land and it was used to
protect property interests in chattels as well as land. However, it
became to be employed predominantly in real property law and
through the passage of time became to be understood as origin of
title or right in land. Today the concept of seisin does not play the
same degree of importance in real property law that it did in its
early days. The means by which ownership in land is transferred
to another no longer depends on mere delivery of seisin, or in the
early language livery of seisin, but rather on a grant that does not
require actual entry. The idea of actual possession reflecting seisin
does, however, play a role in determining issues such as adverse
possession of land. Although notions of ownership and title may
have become more abstract, the English law of property has and
to some extent will continue to recognize that ownership, even
where based on clear legal ideas of right and title, is a relative
concept. The idea of relativity of title and ownership holds that
there is no such thing as absolute title to land and as such a claim
to land, and for that matter other property such as chattels,
depends on the non existence of a better claim to the same thing.
5
See Minister of State for the Army v. Dalziel (1944) 68 CLR 261at 276
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Common

law

on

possession
The common law tradition regards ownership as a relative
concept as opposed to an absolute one. This simply means that
possession is a good title to a thing enforceable against anyone
who cannot show a better title. Relativity of ownership,
sometimes referred to as relativity of title, lies at the heart of
property law in the common law tradition. Relativity of ownership
originates from the force of possession in the common law.
The very first principle of possession is that it raises a
presumption of ownership. A person in actual possession of a
thing is presumed to be the owner of it, albeit, that this
presumption, like any presumption, can be rebutted. In lay
language this may be summarized by saying that possession is
nine-tenths the law. However, there are sound legal justifications
behind the presumption. Firstly, possession in fact is prima facie
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evidence of legal possession and that the possessor has all the
legal remedies to protect such possession.6 Possession is said to be
the root of title in that it is only through possession that
ownership is born or the chain of title begun. Thus, an equally
important principle operating here is that a person may be
presumed to be the owner of a thing even when that person has no
ownership in it, as, for example, where such a thing is found or
taken without the authority of the true owner. Suppose that B
finds a gold watch which in law belongs to A. If B takes
possession, B's possession raises a presumption of ownership,
which is good against the whole world except the true owner who
has a better title to it. The true owner can of course rebut the
presumption of ownership, however, until such time, B will be
deemed to have a possessory title to the gold watch.
The concept of possessory title now calls for discussion. A
possessory title is one that is good against everyone except the
true owner. Lord Campbell once explained the rule by
commenting that against a wrongdoer possession is title. The
origins for the rule of possessory title lie in the fact that English
law never developed a sophisticated system of rules for the
vindication of ownership rights. Instead, the right to ownership
largely depended on the right to possession and it was possession
that was accorded remedies. In the words of Pollock and Wright,
the common law never had any adequate process in the case of
land, or any process at all in the case of goods, for the vindication
of ownership pure and simple. So feeble and precarious was
property without possession, or rather without possessory

6
Pollock and Wright, op. cit, page 20
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remedies, in the eyes of medieval lawyers, that possession largely

usurped not only the substance but the name of property7
It is important to appreciate that many of the remedies that seek
to protect property interests in both land and chattels depend on
possession rather than on absolute notions of ownership.
Property interests in land and chattels are protected by what are
known as property torts. In the case of land, an action for trespass
to land requires that the claimant had possession or a right to
immediate possession. In the normal course of things the
possessor will be the owner, however, it is quite clear that a
squatter will have sufficient standing to sue in trespass. 8 This is
because the squatter has possession in fact and law when he has
control in fact and intends to control. In the case of chattels there
are
two
torts
that seek to protect property interests, namely trespass to goods
and the tort of conversion. The success of both of these torts
depends on whether the claimant has possession or an immediate
right to possession. Trespass to goods is a wrongful physical
interference with them. The tort of conversion amounts to a
dealing with goods in a manner inconsistent with the right of the
true owner. It is sometimes thought that, unlike trespass to goods,
the tort of conversion is a truly proprietary remedy in that it
protects ownership rather than mere possession. However, it is
quite clear that a person in actual possession, such as a bailee of
goods, can sue for conversion. What follows is that a person who
7
Jeffries v. Great Western Railway Company [1856] 5 E & B 802 at 805
8
Ocean Estates Ltd v Pinder [1969] 2 AC 19.
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has no possession or no immediate right to possession cannot sue

for conversion. Thus, an owner who has no possession and neither
an immediate right to possession cannot sue for conversion.
Finally, where damage is caused to a chattel through the
negligence of another person, the claimant must show that he
either had ownership in the chattel or a possessory title.
Thus, possession plays an important role in the transfer and
creation of property interests in personal property. Legal
ownership generally cannot be transferred in a chattel until such
time delivery of possession is made. In so far as possessory
security interests in chattels are concerned, possession is allimportant. Both a lien and a pledge require delivery of possession
in order for the interests to be effective.

Foreign cases

on possession

Reg. v. riley9
In this well-known case the accused drove off amongst his own
lambs, but without knowing it, sell to the prosecutor. After he had
discovered the error he sold the lamb with his own. He was
convicted of larceny. The court rationalized the decision by on a
notion of continuing trespasses based on the ground that the
accused had undoubtedly made himself liable in trespass when he
9
(1853) Dears.149.
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first drove off the lamb even though he did not know that he had
the lamb at the time.
R. v. Ashwell10
In this case the accused had asked the prosecutor to lend him a
shilling. In a poor light, the prosecutor Pulled from his pocket
what he thought was a shilling and handed it to the accused. Later
the accused discovered that he had been given a sovereign by
mistake, but he none the less spent the sovereign and thereby
converted it. He was convicted of larceny of the sovereign. In the
last resort the conviction was affirmed by an equally divided Court
for Crown Cases Reserved consisting of fourteen judges. The
conviction involved a decision that the accused did not take
possession of the sovereign until he knew it was a sovereign,
although the judges who so held gave different reasons for saying
that he had not taken possession until that time.

R. v. Moore11
The prisoner had picked up and converted to his own use a bank
note which had been dropped on the floor of his shop. He
converted the bank note in spite of the fact that he knew the
owner of it could be found. It was held that he was rightly
convicted of larceny- that is, that he had not obtained possession
10
(1885) 16 Q.B.D. 190
11
(1861) Le. And Ca. 1
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of the note while it was lying on the floor of his shop before he had
discovered it, and further that the owners possession was in some
way extended, at least fictionally, after he had lost the note in the
accusers shop.
Cartwright v. Green12
A bureau was delivered to a carpenter for repairs. The carpenter
discovered money in a secret drawer which he appropriated to his
own use. It was held that he committed larceny by feloniously
taking the money into his possession. In this case of course the
carpenter was merely a bailee of the bureau but none the less by
the ordinary rules would be held to have possession of it. It
follows from his decision that he did not obtain possession of it. It
follows from the decision that he did not obtain possession of the
money when he obtained possession of the bureau, but only at the
time he discovered it and wrongfully formed the intention to
convert
it
to
his
own
use.
Hibbert v. Mc Kiernan13
The appellant had been convicted for the larceny of golf balls, the
property of the secretary and members of a golf club. He had
taken the golf balls, which had been abandoned by their original
owners, while he was trespassing on the golf links owned by the
member of the golf club. It was held that the appellant had been
rightly convicted that is to say that the golf balls he had taken
had been, at the time of his taking, in the possession of the
12
(1802), 8 Ves. 405
13
(1948) 2 K.B.142
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secretary and members of the club although no one knew where

they were or how many balls might be at any time lying
abandoned on the various parts of the links.
Ruse v. Read14
The respondent had been acquitted of larceny in the following
circumstances. He had, while drunk, taken a bicycle from a public
place, and it was accepted at first instance that at the time of
taking he had no larcenous intent. When sober he found he had
the bicycle. He consigned it by rail to a non-existent person at a
railway station some distance away. The magistrates had held that
he had no intention of permanently depriving the owner of his
property land was incapable of framing such an intention at the
time of taking the bicycle had been a trespass and, although not
then felonious, the subsequent misappropriation of the machine
on the following day amounted to larceny and the respondent
should have been convicted, R.v.Riley (supra) was followed.
Rose v. Matt15
The respondent, when purchasing some goods, deposited a clock
which he owned, with the vendor, as security for the price of the
goods he was purchasing. It was agreed between them that the
vendor would be entitled to sell the clock if the respondent did not
pay for the goods within one month. The respondent later
returned to the vendors shop and took the clock without
paying the price of the goods. On appeal it was held that the
14
(1949) 1 K.B. 377
15
(1951) 1 K.B. 810
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respondent should have been convicted of larceny.

The Finding Cases In all these cases the issues are civil and not
criminal ones, and are between two or more persons claiming to
be entitled to the benefits of possessory enjoyment of a chattel-the
assumption being that, if there is a true owner, he cannot be
found.

Kinds of possession:
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 Corporeal and incorporeal possession

Corporeal possession is the possession of a material object
whereas incorporeal possession is the possession of anything
other than a material object. In corporeal possession, the actual
use or corpus possession is not essential while in the case of
incorporeal possession, actual continuous use and enjoyment is
essential. Corporeal possession is commonly known as the
possession of a right.
In Roman law, corporeal possession is called as possessio
coporis and incorporeal possession is known as possessio juris.
According to some jurists possession can only be corporeal and
there is nothing like incorporeal possession.
Immediate and mediate possession
According to Salmond, in law one person may possess a
thing for and on account of someone else. In such a case the
latter is in possession by the agency of him who so holds the
thing on his behalf. The possession thus held by one man
through another may be termed mediate possession while
that which is acquired or retained directly or personally may
be distinguished as immediate or direct.
Concurrent possession
It was a maxim of the civil law that two persons could not be
in possession of the same thing at the same thing at the same
time. As a general proposition, two adverse claims of
exclusive use cannot both be effectively realized at the same
time. But, those claims which are not adverse admit of
concurrent or duplicate possession.
Possession in Fact and Possession in Law

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Possession, in fact, is a relationship between a person and a

thing which he possesses. It is also known as de facto
possession. Salmond says
I possess those things which I have: If I capture a wild
animal, I get possession of it; if it escapes from my control,
then I lose possession.
For possession in law, there must be a manifest intent not
merely to exclude the world at large from interfering with the
thing in question, but to do so on ones account, and in ones
own name. When I send my watch for repair through my
servant, he has got de facto possession.
Possession in law is also known as de jure possession. Law
provides protection to possession in two ways. First, the
possessor is given certain legal rights, such as a right to
continue in possession free from interference by others.
Secondly, the law can protect possession by prescribing
criminal penalties for wrongful interference and for wrongful
dispossession. By such civil and criminal remedies the law
can safeguard a mans de facto possession.

Indian laws
Specific Relief Act, 1963:
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on possession:

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 dispossess 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.
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 quo 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.
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:
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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.
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.
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Indian Limitation Act, 1963 (Adverse possession):

The law on adverse possession is contained in the Indian
Limitation Act. Section 65, Schedule I of The Limitation Act
prescribes a limitation of 12 years for a suit for possession of
immovable property or any interest therein based on title. It is
important to note that the starting point of limitation of 12 years
is counted from the point of time when the possession of the
defendants becomes adverse to the plaintiff. Section 65 is an
independent section applicable to all suits for possession of
immovable property based on title i.e., proprietary title as distinct
from possessory title. Section 64 governs suits for possession
based on possessory right. 12 years from the date of dispossession
is the starting point of limitation under Section 64. Section 65 as
well as Section 64 shall be read with Section 27 which bears the
heading Extinguishment of right to property.
It lays down:
At the determination of the period hereby limited to any person
for instituting the suit for possession of any property, his right to
such property shall be extinguished.
That means, where a cause of action exists to file a suit for
possession and if the suit is not filed within the period of
limitation prescribed, then, not only the period of limitation
comes to an end, but the right based on title or possession, as the
case may be, will be extinguished. The section assists the person
in possession to acquire prescriptive title by adverse possession. 16
When the title to property of the previous owner is extinguished,
16
U.N. Mitras Law of Limitation & Prescription, 13 th edition, 2011. Vol. I, revised by Justice S A Kader,
P.732
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it passes on to the possessor and the possessory right gets

transformed into ownership. [Section 27] is an exception to the
well accepted rule that limitation bars only the remedy and does
not extinguish the title. It lays down a rule of substantive law by
declaring that after the lapse of the period, the title ceases to exist
and not merely the remedy17. It means that since the person who
had a right to possession has allowed his right to be extinguished
by his inaction, he cannot recover the property from the person in
adverse possession and as a necessary corollary thereto, the
person in adverse possession is enabled to hold on to his
possession as against the owner not in possession.
Transfer of Property Act, 1882
In this whole act the concept of possession is center. Movable
properties may generally be transferred by delivery of possession.
Under Section 123 of the Act, gift of an immovable property must
be made through registered document but the gift of movable
property may be made only by delivery of possession. According
to section 3(2), actionable claim mean a claim to beneficial
interest in movable property not in possession of the claimant.
Section 54 of this act defines sales, which says delivery of
tangible immovable property takes place when the seller places
the buyer or such person as he directs, in possession of the
property. Section 55(b), (e), (f) of the act uses the word possession
to define the rights and liabilities of buyer and seller. Section
58(b) says the possession of the mortgage-property is not given to
the mortgagee. Section 60 talks about the redemption of
mortgaged property which are in the possession of mortgagee.
17
Valliamma Champaka vs Sivat hanu Pillai (1964) 1 MLJ, 161 (FB)
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Indian cases

on possession:

Mohan Lal v. State of Rajasthan18

In this case court elaborately defined the concept of possession.
The court says, It needs no emphasis that the expression
possession is not capable of precise and completely logical
definition of universal application in the context of all the
statutes. Possession is a polymorphous word and cannot be
uniformly applied; it assumes different color in different context.
In the context of Section 18 of the Act once possession is
established the accused, who claims that it was not a conscious
possession has to establish it because it is within his special
knowledge.
When one conceives of possession, it appears in the strict sense
that the concept of possession is basically connected to actus of
physical control and custody
Noor Aga v. State of Punjab and Anr19
Court held that, The provisions being exceptions to the general
rule, the generality 18 thereof would continue to be operative,
namely, the element of possession will have to be proved beyond
reasonable doubt.
Dharampal Singh v. State of Punjab20 The Court was
referring to the expression possession in the context of Section
18
Criminal Appeal No. 1393 OF 2010
19
Criminal Appeal No. 1034 2008
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18 of the NDPS Act. In the said case opium was found in the
dickey of the car when the appellant was driving himself and the
contention was canvassed that the said act would not establish
conscious possession.
Saroop Singh v. Banto & Ors.21
In the instant case, the appellant categorically states that his
possession is not adverse as that of true owner; the logical
corollary is that he did not have the requisite animus.
T. Anjanappa & Ors. v. Somalingappa & Anr.22
Court states: It is well-recognized proposition in law that mere
possession however long does not necessarily mean that it is
adverse to the true owner. Adverse possession really means the
hostile possession which is expressly or impliedly in denial of title
of the true owner.

20
Criminal Appeal No. 1479 of 2008
21
[(2005) 8 SCC 330],
22
[(2006) 7 SCC 570],
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Conclusion
It is questionable whether in the twenty first century the concept
of possession has survived the significance it once occupied in the
early law. There are number of factors which have contributed to
its demise. The first factor that may impact on the significance of
possession is the human rights one. The Indian limitation Act,
1963, Section 65 of which, talks about the adverse possession
which means a person suppose a tenant is in possession of a
property for 12 years and the owner of the property does not make
any interruption during this time then he loses his legal status of
being its owner. This concept of long sustained possession giving
rise to adverse possession of land is seem in violation of Article 1,
Protocol 1 of the European Convention on Human Right.
Second factor that may further impact on the significance of
possession is Indian registration Act, 1908 which aims to create
an accurate and complete register of land titles, does not and
cannot accommodate for a system of rules which automatically
defeat the title of the registered proprietor by long sustained
possession of land. The objective of the Indian registration Act,
1908 is to make title to land absolute. In this respect, the concept
of adverse possession, relying on long sustained possession of the
land, does not fit into a system of land registration where

31 | P a g e

ownership is acquired by the act of registration and not

possession.

Bibliography
Dias, jurisprudence, 5th edit.

W. Freidman, legal Theory, 5th Ed.

Savigny, Holmes, and the Law and Economics of
Possession-- University of Chicago Law School,
journal article 2000
Coventry Law Journal 2003, The importance of
possession in the common law tradition, By
Sukhninder Panesar
Consultation Paper-cum-Questionnaire on Adverse
Possession of Land/Immovable Property -- law
commission of India
Report by the British Institute of International and
Comparative Law for Her Majestys Court Service
September 2006
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 http://www.legalindia.com/adverse-possession/
http://supremecourtofindia.nic.in/FileServer/201504-17_1429263295.pdf
http://indiankanoon.org/search/?
formInput=possession%20follows%20title
http://lawcommissionofindia.nic.in

Wikipedia

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