SVKMs NMIMS

School of Law, Mumbai

A Project Submitted

On

Conceptual Study of Possession in context of Indian Law

In compliance to the partial fulfillment of the marking scheme, for Trimester 1of
2013-2014, in the subject of Jurisprudence

Submitted
To
Nadisha Vazirani
Asst. Prof. of evaluation

Submitted by: -

Mr. Parth Bhuta

Roll no. 65
Course: BA LLB (Hons.)
On Dt. 16th August 2014 Time

Received by: -
On Dt. 16th August 2014 Time

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 Index

S.no Topic Name Page No.

1. Abbreviations 3

2. Table of Cases and Statutes 3

3. Research Methodology 4

4. Introduction 6

5. Jurisprudential Study 9

6. Legal Analysis 15

7. Comparative Study 21

8. Conclusion 24

9. Suggestions 25

10. Bibliography 26

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 Abbreviations

& and
b\w between
govt. government
vs. / v. versus
Vol. Volume
P. Page number
IPC Indian Penal Code

Table of Cases

R v. Hardilng
R. v. Chissers
R. v. Moore
Elwas v. Brigg Gas Co
South Staffordshire Waterworks Co. v Sharman
Hannah v. Peel
Hibbert v. Mc Kiernan
R v. Riley.

Table of Statutes

Indian Penal Code

Code of Criminal Procedure
Specific Relief Act
Sale of Goods Act, 1930
Indian Contract Act, 1872

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 Research Methodology

In my research, I have adopted the secondary research wherein I have read and researched through the
statistics provided by the others. This is because my topic Conceptual Study of Possession in context
of Indian Law is a very wide concept in our country. The Statues are the primary source of all the laws
in the country. Except for a select few cases in India, there are many case laws regarding this topic in our
country for which I have referred to magazines and journals in the legal field.

My topic is relevant from the point of view of the subject Jurisprudence. As an aspiring lawyer, one
must be well versed with the knowledge of current affairs and the law of the country. Also, a lawyers
skill lies in the understanding of facts, their presentation and forming an opinion of the same.

In my research, I have explained the different aspects of such as the history, present state of Possession in
India and have also compared it with other countries. As the topic demands, I have added some very
popular case because they have had the great impact on the law making procedure of the country and its
people. The purpose of this is to create awareness and understand the past, present and future of this
topic. In the recent times this policies and regulations has come into the fore with the Supreme Court and
the high courts verdicts on certain important issues.

Aim

The aim of the project is to trace the history of the Possession that is how it was formed, what are the
emerging issues of Possession in context of Indian Law.

Objective

Objective of making this report is to have a view about the various laws in enacted in the Indian Context
as well as in the other countries regarding Possession.

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 Scope of Study

The project covers the development of the Conceptual Study of Possession in context of Indian Law
right from the right from the beginning, making its way through English notions that eventually led to the
enactment of this statue in India. The project also shows the relevance of such legislation, etc.

The research is limited to the resources available at the NMIMS Library. Books related to the topic are
available at the library. Also, the sources available on the Internet helped a considerable deal. Suggestions
from the course-instructor and fellow students have been incorporated wherever necessary.

Limitation of study

However, there could have been a wider perspective in my research. There could have been more cases
provided in my research if there would not have been a page constraint and a more scope to my research.
In spite of the limitations I have tried to cover all the aspects and explain the concept as extensively as
possible.

For this project titled Conceptual Study of Possession in context of Indian Law the doctrinal method
was judged to be most appropriate. Primary resources referred to in the course of research include books,
journals, law reports and cases, most of them accessed from the NMIMS law library. Other sources like
articles, and the like were accessed online through the use of online databases. All direct quotations have
been properly footnoted.

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 Chapter 1

Introduction

As with most words in the English language, the word possession has a variety of uses and a variety of
meanings. Reference to any reasonably comprehensive English dictionary provides sufficient illustration.
As a noun from the transitive verb to passes Possession is given as: the action or fact of possessing
something or of being possessed. Depending on the context, the lexicographer maybe found to give
meanings such as the following: the holding of something as ones own: actual occupancy as
distinguished from ownership; a territory subject 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 the character of the thing permits, to the exclusion of other
persons.2

Possession, for e.g., is prima facie evidence of ownership. Even a person who is wrongfully possesses a
property, has a good title against the world at large except the true owner. Again, a person derives a good
title from a possessor even though the possessor himself has none: just as when a person obtains a bank
note from knowing that it is a stolen one, in that case, he commits an offence of receiving stolen property
under Section 410 of I.P.C which is punishable under Section 411 of the said code. Possession is an
important condition in the acquisition of ownership. Law relating to pledge provides that the possession
of the things pledge constitutes creditors security without any presumption of ownership.

The ownership, control, or occupancy of a thing, most frequently land or Personal Property, by a person.
The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession"
Depending on how and when it is used, the term possession has a variety of possible meanings. As a
result, possession, or lack of possession, is often the subject of controversy in civil cases involving real
and personal property and criminal cases involving drugs and weaponsfor example, whether a renter is
entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property.

Possession is a prima facie proof of ownership. It is an evidence of complete title. Section 110 has
incorporated this principle. But this principle does not apply when possession is obtained by fraud or
force. Mere wrongful possession is insufficient to shift the burden of proof. According to this section
when a person is shown to be in possession of any property, the presumption is that he is the owner of
that property. If anybody denies his ownership, burden lies on him to prove that he is not the owner of the
property.

The possession of property, real or personal is presumed prima facie to be full owner of it. The policy of
law is to allow a person to continue his possession until a rival claimant proves his title. Thus, the
presumption under section 110 would apply only if two conditions are satisfied, viz.(i) that the

1 The Shorter Oxford English Dictionary (3rd dc.) vol. Ii, 1550.
2 The Shorter Oxford English Dictionary. Loc. cit. Armory v. Delamirle (1721).

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possession of the plaintiff is not wrongful, and (ii) that the title of the defendant is not proved. Example:
A is in possession of a cycle. claims the cycle as his, has to prove that he purchased it and burden
lies on B.

In a suit for possession based on title the plaintiff has been able to create a high degree of probability so
as to shift the onus on the defendant. It is for the defendant to discharge his onus and in the absence
thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to
proof of the plaintiffs title.3

Difference between Ownership and Possession: -

The main 15 difference between Ownership and Possession or the 15 important points on which
Ownership and Possession can be distinguished are as follows: -

Ownership: -

1. The idea of ownership follows the idea of possession.

2. The ownership is the de jure recognition of the right over the property.
3. Ownership is the subjective and objective. It signifies the externally and internally.
4. The right of alienation is an essential characteristic feature of ownership.
5. The concept of ownership is used in widest meaning. The owner has the right to consume, destroy and
alienate with his free will.
6. The residuary power is vested in the owner.
7. Ownership is the guarantee of the law.
8. Ownership without possession is right, unaccompanied by that environment of fact in which it
normally realizes itself.
9. Ownership strives to realize itself in possession.
10. The ownership is left to seek proprietary remedies.
11. The law of prescription determines the process by which, through the influence of time, ownership
without possession withers away and dies.
12. Transfer: the ownership generally can be transferred by the way of convincing and registration in case
of immovable properties and by way of delivery in case of movable properties.
13. A right in rem can be owned and possessed. But a right in personam (directed toward a particular
person) can only be owned.
14. Ownership is a matter of multiple rights.
15. Salmond says: Whereas ownership is strictly a legal concept

3 http://www.shareyouressays.com/120495/section-110-of-the-indian-evidence-act-1872 visited on 12th

August 2014 @ 12 P.M.
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Possession: -

1. First the idea of possession came into existence in the human civilization.
2. Possession is the de facto exercise of a claim over the property.
3. Possession is the objective realization of ownership. It is the external significance of ownership.
4. This right is not seen in possession.
5. The concept of possession is narrower in this sense. The possession has limited rights to consume,
destroy and alienate.
6. The residuary power is not given to possessor.
7. Possession is the guarantee of the facts.
8. Possession without ownership is the body of fact, uniformed by the spirit of right which usually
accompanies it.
9. Possession to Endeavours to justify itself as ownership.
10. The possessor is left with possessory remedies.
11. The law of prescription determines the process by which, through the influence of time,
possession without title ripens into ownership.
12. Transfer: the possession, comparatively, can easily be transferred. It does not require
conveyancing.
13. A right in personam can only be owned, and it cannot be possessed.
14. Whereas possession in singular, but stronger.
15. Possession is both a legal and a non-legal or pre-legal concept.

There is just a minor difference between Ownership and Possession and i.e. it is also called or many a
times said as that Possession in 9/10 of Ownership. It is a bit easy in the court to prove that you are
the possessor of that good where as it is not the same with owner.

In the Court the owner has to prove that he is the owner of that good.

Section 110 of the Indian Evidence Act reads as under: -

When the 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
the owner is on the person who affirms that he is not the owner.

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 Chapter 2

Jurisprudential Study

In this chapter the things discussed are: -

Elements and kinds of possession

Why Possession is protected?
View of Jurists; and

Elements and Kinds of Possession: -

Elements: -
According to Holland, legal possession has two essential elements, namely, (1) Corpus
and (2) animus. Savigny also supports this view and considers corpus possessionis and animus domini as
the two essential requisites of possession.

1. Corpus Possessionis: -
Corpus implies two things namely: -

i. Possessors physical relation to the res, i.e. the object; and

ii. The relation of the possessor to the rest of the world.

The first point emphasises that there must exist some physical contact of a person with a thing which he
possesses so as to give rise to a reasonable assumption that others will not interfere with it. The physical
control of the possessor over a thing implies that other will not interfere with the possessors right to use
or enjoyment of that thing. This assurance of non-interference can be secured in any of the following: -

i. Physical power of the possessor

ii. Personal presence of the possessor
iii. Secrecy
iv. Protection afforded by the possession of the other things.

2. 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 conscious intention of the professor to exclude others from interfering with his right
of possession. Holland pointed out that apart from the physical power to deal with the thing, the
possessor also must have the will to exercise such control.

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Kinds: -
Possession may be of many kinds. It may either be corporeal or incorporeal; mediate or
immediate; constructive possession, adverse possession, actual possession and so on.

1. Corporeal and Incorporeal Possession: -

Corporeal Possession is the possession of a material
object and Incorporeal Possession is the possession of anything other than a material object.
Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished
as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right.

Salmond further said that corporeal possession is clearly some form of continuing relation between a
person and a material object. It is equally clear that it is a relation of fact and not one of right.
What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is
known as possession?

According to Salmond, the possession of a material object is the continuing exercise of a claim to the
exclusive use of it. It involves two distinct elements, one of which is mental or subjective, the other
physical or objective.

The mental element comprises of the intention of the possessor with respect to the thing possessed, while
the physical element comprises of the external facts in which this intention has realised, embodied, or
fulfilled itself.

The Romans called the mental element as animus and the subject element as corpus. The mental or
subjective element is also called as animus possidendi, animus sibi habendi, or animus domini.

The Animus Possidendi - The intent necessary to constitute possession is the intent to appropriate to
oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object. Salmond
made following observations in this regard.
1. It is not necessarily a claim of right.
2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on ones own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not necessarily involve
any continuous or present knowledge of the particular thing possessed or of the possessors relation to it.

The Corpus Possessionis The claim of the possessor must be effectively realized in the facts; that is to
say, it must be actually and continuously exercised. The corpus possessionis consists in nothing more
than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will.
Actual use of it is not essential.

In Incorporeal Possession as well, the same two elements required, namely the animus and the corpus. In
the case of incorporeal things, continuing non-use is inconsistent with possession, though in the case of
corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal possession is
distinguished from it as the possession of a thing. The distinction between corporeal and incorporeal
possession is clearly analogous to that between corporeal and incorporeal ownership.

10
Hence, Possession in its full compass and generic application means the continuing exercise of any claim
or right.

2. Mediate and Immediate Possession: -

The possession held by one man through another
may be termed mediate, while that which is acquired or retained directly or personally may be
distinguished as immediate or direct. There are three kinds of Mediate Possession: -

i. Possession that is acquired through an agent or servant who claims no interest of his own.

ii. The direct possession is in one who holds both on the actual possessors account and on his own,
but who recognizes the actual possessors superior right to obtain from him the direct possession
whenever he choose to demand it.

iii. The immediate possession is in a person who claims it for him until sometime has elapsed or
some condition has been fulfilled, but who acknowledges the title of another for whom he holds
the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an
end.

Immediate possession is also known as direct possession. If the relation between the possessor and the
thing possessed in the direct one, it is called immediate possession. For example, if I purchase a book
myself, I have immediate possession of it without any intervening agency. The thing is possession of the
master, principal and owner are said to be their immediate possession.

The English law does not recognize the distinction between immediate and mediate possession because at
a time only one person can have exclusive possession over a thing. English law does not accept the view
that the servant possesses his masters goods; he only may have custody of it. The distinction between
immediate and mediate possession is, however, explicitly under the German law.

3. Constructive Possession: -
Constructive possession is a legal theory used to extend possession
to situations where a person has no hands-on custody of an object. Most courts say that constructive
possession, also sometimes called "possession in law," exists where a person has knowledge of an object
plus the ability to control the object, even if the person has no physical contact with it. For example,
people often keep important papers and other valuable items in a bank safety deposit box. Although they
do not have actual physical custody of these items, they do have knowledge of the items and the ability to
exercise control over them. Thus, under the doctrine of constructive possession, they are still considered
in possession of the contents of their safety deposit box. Constructive possession is frequently used in
cases involving criminal possession.

11
 4. 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.

5. Actual Possession: -
"Actual possession is what most of us think of as possessionthat is,
having physical custody or control of an object" (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y.
1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate
physical contact. For example, a person wearing a watch has actual possession of the watch. Likewise, if
you have your wallet in your jacket pocket, you have actual possession of your wallet. This type of
possession, however, is by necessity very limited. Frequently, a set of facts clearly indicate that an
individual has possession of an object but that he or she has no physical contact with it. To properly deal
with these situations, courts have broadened the scope of possession beyond actual possession.

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, Rousseau 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 leads 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 ownership of 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.
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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.

Views of Jurists: -
The various definitions of the jurists for Possession are: -

Pollock: -
He says having control over the physical thing is possession.

Salmond: -
According to him, the possession of a material object is the continuing exercise of
a claim to the exclusive use of it. Thus possession involves two things: -
o Claim od the exclusive user; and

o Conscious or the exclusive claim of this claim i.e., physical control over it. The
former is mental element called as animus possessionis and the latter is
physical element is known as the corpus possidendi.

Bentham: -
According to him, to define possession is to recall the image which presents itself
to the mind when it is necessary to decide between two parties, which are in possession of a thing and
which are not.

Justice Holmes: -
According to him, to gain possession a man must stand in certain physical
relation to the object and the rest of the world, and must have certain intent.

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Salmonds Theory: -

Salmond also said that possession is of such efficacy that a possessor may in many cases confer a good
title on another, even though he has none himself. He also made a distinction between possession in fact
and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as possession
all that is such in fact, and nothing that is not such in fact, unless there is some special reason to
the contrary.
2. Possession may exist in fact but not in law. Thus the possession by a servant of his masters
property is for some purposes not recognized as such by the law, and he is then said to have
detention or custody rather than possession.
3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does not
possess. The possession thus fictitiously attributed to him is termed constructive.

In Roman law, possession in fact is called possessio naturalis and possession in law as possessio civilis.

However, Professor G. L. Williams, the Editor of the Eleventh edn. Of Salmonds Jurisprudence, altered
the text of Salmonds theory of possession and stated that assuming the both corpus and animus are
required to initiate possession, the possession once acquired may continue even though both carpus and
animus are subsequently lost.

Savignys Theory of Possession: -

Savigny with other German thinkers (including Kant and
Hegel) argued that possession, in the eyes of the law, requires that the person claiming possession intend
to hold the property in question as an owner rather than recognize the superior title of another person, so
that in providing possessory remedies to lessees, Bailees, and others who lack such intentions, modem
law sacrifices principle to convenience.

To this Holmes responded that he cannot see what is left of a principle which avows itself inconsistent
with convenience and the actual course of legislation. The first call of a theory of law is that it should fit
the facts. It must explain the observed course of legislation. And as it is pretty certain that men will make
laws which seem to them convenient without troubling themselves very much what principles are
encountered by their legislation, a principle which defies convenience is likely to wait some time\ before
it finds itself permanently realized.

Holmes also criticised Savigny and other German theorists by saying that they have known no other
system than the Roman. In his works, Holmes proved that the Anglo-American Law of Possession
derived not from Roman law, but rather from pre-Roman German law.

One of Holmes's criticisms of the German theorists, signally including Savigny, is that they "have known
no other system than the Roman, '4, and he sets out to prove that the Anglo-American law of possession
derives not from Roman law, but rather from pre- Roman German law.

4 http://www.desikanoon.co.in/2014/05/jurisprudence-notes-theories-of.html visited on 12 th August 2014 @ 10 A.M.

14
 Chapter 3

Legal Analysis

Jurists have defined possession according to their own notion.

Pollock: -
He says having control over the physical thing is possession.

Salmond: -
According to him, the possession of a material object is the continuing exercise of
a claim to the exclusive use of it. Thus possession involves two things: -
o Claim od the exclusive user; and

o Conscious or the exclusive claim of this claim i.e., physical control over it. The
former is mental element called as animus possessionis and the latter is
physical element is known as the corpus possidendi.

Statutes Involved: -

The Indian legislators have taken care of providing possessory remedies and it is reflected in various
statutes. Some statutory provisions are as follows:

1. Specific Relief Act, 1963: S. 5: -

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 disposes 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.

2. Code of Criminal Procedure, 1973: S.145: -

It 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 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.
15
 3. 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 provide 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:

Where the goods are being sold without any stipulation as to credit
Where the goods are being sold on credit but the term of credit has expired.
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.

4. 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. 16: -
Provide 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:

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

5. 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.

16
 6. 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,

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

7. Section 110 of the Indian Evidence Act reads as under: -

When the 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 the owner is on the person who affirms that he is not the owner.

17
Cases Involved: -

1. R v. Riley.5 (Lamb Case):-

In this case were the accused was driving his herd of sheep, some of
the prosecutors sheep joined the herd and were driven away by the accused along with his own. This
mistake came to his notice after he had sold the entire flock of sheep. The accused was held to have taken
possession of the sheep with belongs to the prosecutor and which he unknowingly drove with his own
flock to the market.

2. R v. Hardilng6: -
In the instant case, the accused was convicted of stealing a rain-coat from a maid
maid-servant who, as against the master, had mere custody of the rain-coat and could herself have been
convicted of larceny had she dishonestly made-off with it. In the eyes of law, she had possession as
against the thief but not against as against her employer.

3. R. v. Chissers7: -
A person went in a shop and took some cloth to see. Then he ran away with the
cloth. He was convicted for larceny as the Court held that he had not obtained the possession of the cloth
merely by taking and t was still in possession of the shopkeeper.

4. R. v. Moore8: -
In the instant case, a bank note was dropped in the shop of accused that took it and
converted it to his own use. The accused was convicted of larceny since was not in possession of the note
until he actually discovered it.

5. Elwas v. Brigg Gas Co.9: -

The defendant company took the land of the plaintiff for erecting a
gas plant. When the excavation work was on, the defendant lessee company discovers a pre-historic boot
six feet below the surface of the land. The Court held that lesser has the first possession of the boat and
not the lessee.

5 (1853) dears CC 149

6 (1923) 142 LT 853
7 (1678) T Raymn 275.
8 (1861) L & C 1.
9 (1886) 33 Ch D 562
18
 6. South Staffordshire Waterworks Co. v Sharman10 ( Gold rings case): -

In this case, the plaintiff company owned a pond upon their land. The company employed the defendant
to clean the pond. During the cleaning operations, the defendant found gold rings at the bottom of the
pond. The court held that the company had the first possession of the rings by the virtue of there being
the owner of the pong and hence the defendant acquired no title in the rings and therefore, the company
was entitled to have the rings and not the defendants.

7. Hannah v. Peel11: -
The defendant purchased a house in 1938 but he never occupied it. In 1940 the
house was requisitioned by the Government Royal Artillary. The plaintiff, a soldier who was stationed in
this house found a brooch on the top of window frame covered by dust. The brooch was handed over to
the police who without attempting to discover the rightful owner delivered it to the defendant who was
the owner of the house. The defendant sold the brooch for 66 pounds. The plaintiff (soldier) claimed the
jewel or its value as the founder of it. The defendant contended that e being the owner of the house in
which the brooch was found, was entitled to t as the owner of it. The Court, however, ruled that the
plaintiff was entitled to the brooch or its value since his claim as finder prevailed over all others
accepting the rightful owner. The Court further observed that since the defendant was never in possession
of the house and had no knowledge of the brooch until it was brought to his notice, he neither had de
facto possession of it nor the aminus of excluding others; therefore, he had no right over the brooch.

The decision has, however, being criticized by Prof. Good Hart as having been wrongly decided.12

8. Hibbert v. Mc Kiernan13 ( Golf Ball Case): -

This case is also known as Golf ball case.
In this case balls lost on a golf-link and abundant by the owners were picked up by a trespasser on the
golf ground. On being sued for wrongful possession of the balls, the Court ruled that the abundant balls
were held to have not fallen the possession of the secretary and the members of the club.

Salmond, however, holds a view that lost articles is deemed in law to remain in possession of the loser. In
his opinion, he loses legal possession of the lost articled when he terminates his intention to retain his
rights over him, e.g., by throwing it away deliberately. In most of cases it is a question of interference

10 ((1896) 2 QB 44
11 (1945) 1 KB 509
12 Principles of Torts by Achuthan Pillais 8th edn. Pg. 171-172
13 (1948) 2 KB 142
19
from the circumstances the loser had abundant his legal possession.14 For instance, in R v. Edwards15, a
householder who puts refuge in a dustbin has been held to retain possession of it until it is collected.

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.

14 Salmond on Jurisprudence by Fitzgerald P.J, 12th edn. Pg. 278-279

15 (1877) 18 Cox CC 384
20
 Chapter 4

Comparative Study

Possession under the Indian Law: -

In ancient Indian Law, title to land depend on personal possession of it, Katyayan speaks of two kinds of
possession, namely,
i. Possession with Title
ii. Possession without Title

A person not having title of possession could not claim the right of ownership. Gauta and Narada Purans
also contains references about acquisition of ownership of property by uninterrupted continuous
possession for twenty years in a case of immovable property and 10 years in movable property

The right of possession have been protected under the Section 145 of CrPC, 1973 which provides as
under: -

Procedure where dispute concerning land or water is likely to cause breach of

peace.16

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other
information that a dispute likely to cause a breach of the peace exists concerning any land or water or the
boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of
his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or
by pleader, on a specified date and time, and to put in written statements of their respective claims as
respects the fact of actual possession of the subject of dispute.

Sub-section (4) further provides that The Magistrate shall then, without reference to the merits or the
claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in,
hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any

16 http://www.vakilno1.com/bareacts/crpc/criminal-procedure-code
1973.html#145_Procedure_where_dispute_concerning_land_or_water_is_likely_to_cause_breach_of_pe
ace visited on 12th August 2014 2 P.M.
21
as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the
order made by him under subsection (1), in possession of the subject of dispute.

In Trimbak v. St. Of M.P.17, the Supreme Court observed that where an article is recovered from the place
which is in possession of the accused but the general public has the access to that place, then in such a
situation it cannot be said that the article was in the possession of the accused.

Possession under the Gulf Countries: -

The United Arab Emirates is a civil law country and therefore its laws are generally completely codified.
The UAE legal system is based to a large extent on the French and Roman law systems with a mix of
some Sharia (Islamic) principles. The Sharia principles have been modernized and embodied in the UAE
Civil Code. Although the United Arab Emirates was established as a Federation in 1971, the UAE
Commercial Code was not adopted until 1993. Prior to 1993, matters involving commercial issues were
based on commercial principles of other Arab countries such as Egypt and Iraq, largely depending on the
national origin of the judge presiding over the matter (most Judges were foreign). Until the adoption of
the Commercial Code, the banking industry was dominated by lack of control and loose regulatory
guidelines. The lack of comprehensive guidelines and supervision became an issue of vital interest to the
UAE federation due to its impact on the local and international business communities.

Afridi & Angell is a corporate and commercial law firm with over 35 years of unrivalled experience in
the Middle East. From our offices in Dubai, Abu Dhabi and Sharjah in the United Arab Emirates we
conduct a diversified regional and international practice, providing legal services in all aspects of
conventional and Islamic banking and financial services, infrastructure and project finance, private
equity, maritime and transport law, insurance, litigation support and arbitration, capital markets as well
as sports, entertainment, media law, real estate and construction.
Mortgage
There are three types of mortgage over real estate in the UAE:
Mortgage over land and buildings.
Mortgage over a leasehold interest in real property.
Mortgage over a building constructed on leased land.

A mortgage is defined in the Civil Code as a contract by which a creditor acquires the right to be satisfied
from the proceeds of the sale of the mortgaged real estate in priority to unsecured creditors and other
secured creditors of the debtor. To have effect, a mortgage must be registered. The time of registration of
the mortgage determines priority among mortgages over the same real estate.
The mortgagor must be the owner of the mortgaged property. It is not essential that the mortgagor be the
principal obligor of the debt that is secured by the mortgage; the mortgagor can be a guarantor of the
debt.

Until recently in the UAE, mortgages over freehold properties could only be created over properties
owned by UAE nationals.

17 Air 1954 SC 39
22
However, legislation has recently been introduced in Dubai which, among other things, governs the
registration of property and security interests by expatriates in certain demarcated zones. The Dubai Land
Department has exclusive jurisdiction to register the following three types of title in the name of foreign
nationals and foreign-owned companies in certain demarcated areas (Law No. 7 of 2006 on Registration
of Real Property in the Emirate of Dubai and its implementing regulations):
Freehold.
Long-term lease (99 years).
Usufruct (musataha), to receive the benefit from the property (up to 50 years).

The developer must register any disposition of an off-plan property in the Interim Register, which is
maintained by the Land Department (Law No. 13 of 2008 regulating Initial Property Registration in the
Emirate of Dubai). The disposition
of a completed property must be registered in the Real Property Register, also maintained by the Land
Department. It is unclear; however, which party is responsible for registration. Both parties must attend
the Land Department to complete registration.

23
 Chapter 5

Conclusion

By this report I can conclude that, Possession, for e.g., is prima facie evidence of ownership. Even a
person who is wrongfully possesses a property, has a good title against the world at large except the true
owner. Again, a person derives a good title from a possessor even though the possessor himself has none:
just as when a person obtains a bank note from knowing that it is a stolen one, in that case, he commits an
offence of receiving stolen property under Section 410 of I.P.C which is punishable under Section 411 of
the said code. Possession is an important condition in the acquisition of ownership. Law relating to
pledge provides that the possession of the things pledge constitutes creditors security without any
presumption of ownership.

Many a times people understand that the possession is as same as ownership where as it is not there is
just like 1 point difference between them or it is also known as 9/10 of ownership. In this like a
possessor is easy to prove that he was the possessor of that particular property and which is quite easy
where is to prove that you are the owner is quite a bit difficult.

For example, the possession of property, real or personal is presumed prima facie to be full owner of it.
The policy of law is to allow a person to continue his possession until a rival claimant proves his title.
Thus, the presumption under section 110 would apply only if two conditions are satisfied, viz.

(i) that the possession of the plaintiff is not wrongful, and

(ii) that the title of the defendant is not proved.

Example: A is in possession of a cycle. claims the cycle as his, has to prove that he
purchased it and burden lies on B.

24
 Chapter 6

Suggestions

By going into a thorough study of the topic Conceptual Study of Possession in context of Indian
Law the following are the suggestions: -

Possession is bit easy to prove in the court where as it is difficult for the owner.
In India Possession is followed in a very different or in some of the statues
Property act should be implemented in a better manner because it is very slow and costly
These rights should be absolute.
The law should not be contradicting its own self and should be consistent.

25
 Chapter 7

Bibliography

1. Books Referred: -

The Law of Torts by Ratanlal & Dhirajlal

Jurisprudence and Legal Theory by V.D. Mahajan
Studies in Jurisprudence and Legal Theory by Dr. N V Paranjape

2. Statues Referred: -

Law of Tort
Indian penal Code
Constitution of India

3. Cases Referred : -

R v. Hardilng
R. v. Chissers
R. v. Moore
Elwas v. Brigg Gas Co
South Staffordshire Waterworks Co. v Sharman
Hannah v. Peel
Hibbert v. Mc Kiernan
R v. Riley.

4. Websites referred: -

www.indiankanoon.org
www.googlebooks.com
26
 Jstor.org
Legaldictionary.org
www.dlshq.org
thefreedictionary.com
www.hrw.org
www.yourarticlelibrary.com
www.cultorweb.com
http://archive.org
www.cpim.org
www.preservearticles.com
www.alllaw.com

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