Possession [ possession or besitz]:
- Maine defines “possession as physical detention coupled with the intention to hold the thing detained as one’s own”.
- According to SALMOND possession of the material object is the continuing exercise of a claim to the exclusive use of it.
- 110 of INDIAN evidence act 1872 states that who has possession of the property, is the owner of the property burden of proof lies upon the person who is claiming prospective ownership.
- Possession is evidence of ownership.
Elements of possession
- The corpus possession or physical element or the thing possessed or objective.
- The animus Domini or the intention or mental or subjective element.
1.The corpus possessionis :
- Corpus implies two things:
- Possessors physical relation to the object.
- Relation of the possessor to the rest of the world.
- There must be some physical contact of a person with the thing which he possesses so as to give rise to a reasonable assumption that others will not interfere with it.
- The assurance of non-interference can be secured in the following ways:
- The physical power of the possessor.
- Personal presence of the possessor.
- The protection afforded by the possessor.
2. Animus Possidendi :
- It implies the intention to appropriate to oneself the exclusive use and enjoyment of the thing possessed.
- It is a conscious intention of the possessor to exclude others from interfering with his right of possession.
3. Theories of possession:
- Savigny’s theory :
- He emphasized that possession has two basic elements:
- Corpus possessions.
- Animus Domini.
- Savigny has not taken that law does not protect a possession that is acquired unlawfully.
- Savigny’s idea of animus Domini, the intention to hold as owner fails to explain the cases of the pledges, who have possession but do not intend to hold as owners.
2. Ihering’s theory:
- Ihering says that whenever a person looked like an owner in relation to a thing, the had possession of it unless possession was denied to him by rules of law based on practical convenience.
It fails to explain the cases where the law refused possessory rights to persons who were ineffective physical control of the thing possessed.
3. Salmond theory :
- Salmond observed that there is only one concept which is a possession, in fact, he denied possession in law.
- Mark criticized his theory and says that law treats possession not merely as a physical condition but also as a right.
4. Kant’s theory:
- Holland’s theory of possession is founded on the preservation of peace in society.
Kinds of preservation:
1. Corporal and incorporal possession:
- Corporal possession is a possession of material things like land, house, etc.
- Incorporal possession is a possession of immaterial things like copyright, trademark, etc.
2. Mediate and immediate possession :
- Mediate possession is a possession of things through another person.
Salmond points out three categorized of mediate possession-
- Possession acquired through an agent.
- Possession held through a borrow.
- Possession lent for a fixed period of time.
- Immediate possession is known as direct possession.
3. Concurrent or duplicate possession:
Concurrent or duplicate possession is when two or more person possesses in common the same thing at the same time, but their claims are not adverse to each other.
4. Adverse possession:
Adverse possession means possession by a person initially holding the land on behalf of another person and subsequently setting up his own claim as a true owner of that land.
5. Constructive possession:
Constructive possession means having power and the intention of retaining control over the property but without actual control.
- Possession is the prima facie evidence of ownership.
- Possession is helpful in maintaining peace and order.
- Protection of possession is necessary to prohibitory.