Introduction
It is not particularly surprising to hear about disputes erupting between people, even the closest of them, due to simple matters relating to property. In fact, some of India’s longest running court cases are related to property issues of possession. For instance, the case of a Bengali royal family has been pending for 175 years. The property initially belonged to Raja Rajkrishna Deb, a 17th-century landlord and now over 200 of his descendants are staking a claim. The legalities began in 1833, and now almost two decades later, the matter has reached the Calcutta High Court[1].
Another example of a land related dispute plaguing Indian courts is of the court case about a piece of land in Doshipura area of Varanasi, which started in 1878. One of the oldest cases in India, being more than a century old, there are no visible signs of a settlement. At the centre of the entire matter is a two-acre land. The matter has been heard by over a dozen courtrooms and numerous judges in its century old journey, however, no suitable resolution has been found.[2]
Physical control of a thing or object by intentional exercises of a person is known as possession of that thing or object. Intention to possess the thing or object in question is essential to constitute possession. Intention to possess is also termed as animus possidendi, and it is the most vital component of possession. Without intention, no possession can be claimed to exist or have existed at any point of time.
Animus possidendi is considered as constituting a fact in the common law countries. This is so because animus possidendi or the intention to possess is merely a state of mind and can be contradicted by the use of evidence which is sufficient enough to prove that the person under whose supervision a particular thing rests, has not exercise intentional control over it and does not intend to do so.
The idea of possession, especially in law, is very vague. The term itself is very ambiguous in the sense that no clear and satisfactory definition of possession has been obtained yet. Its usage changes according to the situation, which has made possession the subject matter of many a litigation and controversy among people.
Possession is of two types: possession in fact or de facto and possession in law or de jure. First, it needs to be cleared that possession is an evidence of ownership, which is made clear by Section 110 of the Indian Evidence Act.[3] Section 110 states — “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.”
Possession in law is the possession that is recognised as well as protected by law. There are three situations with relation to possession in fact and possession in law, these are: first, where there is both possession in fact and possession in law; second, where there is possession only in law not in fact; and third, where there is possession only in fact not in law. Usually, possession exists in both kinds with the same person, i.e., of the first type which is full possession. It can be said that a person who has possession in fact (or de facto) has by default procured possession in law (or de jure).
The distinction between possession in fact and in law arises out of the second and third instances. The second type is not a possession, but only a custody. A clearer illustration for this is of a tenant and landlord.[4] A tenant may have custody of certain property, but it is the landlord who has actual possession. Here, the de facto possession is with the tenant and the de jure possession is with the landlord. Possession in fact indicates physical control over something.
It has been established that there are many such objects which cannot be brought under physical control such as the celestial or heavenly bodies. Further, an essential point to be noted is that physical control over an object is not required to be continuous, but resumable at will and desire of the possessor. It is the de jure possession which protects and recognises possession. The methods for granting such protection is by conferring legal rights upon the possessor to the effect that it recognises the possessor and penalises person(s) interfering with the enjoyment or use of that object or property by the possessor. Possession in law is brought into use in the court of law where it has to be ascertained whether or not a property belonged to a claimant or not.
The idea of possession is not new. This terminology has been in place, and caused disputes, ever since private property and ownership came into existence. For instance, in Roman law there were certain attributes attached to the concept of possession, such as: (a) that possession was prima facie evidence of ownership; (b) possession was the basis of certain remedies, i.e., even a wrongful possessor was protected against the true owner along with the rest of the world, who dispossess him without due process of law; (c) possession was an important condition in acquisition of ownership.[5]
If physical control was the only aspect associated with possession, then the entire idea would have been much simpler. However, it became difficult when possession had to be attributed to persons who were not actually in control of a thing or object, by taking it away from the person who was in control. Thus, possession also came to be prescribed without physical control and in this manner, physical control had to be distinguished from possession. In this new advanced scenario, a person could have possession and its related advantages without having physical control; a person could have physical control without possession and its advantages; and a person could also have both possession and physical control.[6] These complexities have given rise to many interpretations of law relating to possession.
Friedrich Carl von Savigny’s theory, in his work Das Recht des Besitzes, was the first work in this field. Savigny is considered to be one of the most important figures in development of legal history and his name is still associated with the approach he has presented. On possession, Savigny propounded that it consists of two elements, namely, corpus possessionis — effective control — and animus domini — intention to control. For possession to hold, both the elements must be fulfilled. If either of the elements is lost permanently, then the link is broken and possession comes to end. However, when faced with the dilemma of cases where possession continued to exist even when one of the elements was lost, he considered and pointed that the loss of any element must necessarily be permanent in nature. If the loss is temporary and reproducible, then it did not matter as such.[7]
Holmes, in his philosophy of possession remarked that, “To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have certain intent. These relations and this intent are the facts of which we are in search.”[8] According to Henry Maine, possession is that contact with an object, the consequence of which is the exclusion of another person from enjoyment derived through that object. In simpler words, possession denotes physical contact of an object by a person, that is found to be resumable at the wish of the possessor.[9]
For Salmond, possession was the most basic means of interaction and relation between humans and objects. And possession becomes important for humans as objects (and other material things) are essential for existence and it is quite impossible to imagine a society without the use of material objects. Salmond also believed that possession was an evidence of ownership and also a means to transfer ownership.[10]
Under the English law, possession has a very important place. It is used inclusively in both the civil and criminal law. In the civil law, for example, the tort of trespass constitutes a breach of possession with respect to certain land or goods. The remedy to recover possession is called possessory remedy as provided by Section 6(1) of the Specific Relief Act, 1963 which states — If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.[11]
Other areas of civil law where wrongs are defined in terms of possession are law of torts, specific relief, property and contract among others. In criminal law, theft is the most common example of a wrong related to possession. Theft is defined under section 378 of the Indian Penal Code — Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.[12]
Possession v. Ownership
Thus, there exists a clear line of distinction between possession and ownership and often, this line gets blurred. It becomes tough to differentiate between the two, as they are dynamic in nature, i.e., they tend to change or transform. To clear the clutter, possession has been further classified into categories such as: actual, constructive, adverse, joint, sole, physical, illegal, conscious and many more. All the subcategories, although, originate from one only, which is called as ‘actual possession’.
Actual possession bears resemblance to what has been described above as possession in fact, or de facto possession. It describes physical contact with an object. Physical custody or control over an object or property is what constitutes actual possession. If a person has a mobile phone in his/her pocket or bag, then he/she has actual possession of the said mobile phone. The scope of possession has been expanded beyond actual possession as this type is very limited in nature and the difficulty arises when an individual has custody of an object, but without any physical contact.[13]
That brings us to constructive possession, which deals with the problem of custody without physical contact. Constructive possession is also known and referred to most commonly as possession in law or de jure possession. Constructive possession is said to exist when a person has knowledge of an object in addition to the ability to exercise control over it, even if there is no physical contact with the object.[14]
Conclusion
There are several points of distinction between possession in fact and possession in law, which have been dealt with in this article. The first point of difference comes from the notion that de facto possession relates to apparent facts and is actual whereas de jure possession relies upon legal recognition of possession. A tenant to a property has possession in fact, but the possession in law rests with the landlord, as the landlord is recognised by the law, not the tenant. Possession in law provides for remedies to the possessor in case of breaches. If an object belonging to a person is lost, the object continues to be possessed by that person only in the eyes of law. The fact the actual possession of the object has been relinquished bears no influence.[15]
Possession in fact is actually possession only in representation. That is to say, it speaks only about the actual possession of an object, not of its legal position. If a lost object is found by a person, then he/she will only have the possession in fact, not possession in law. From the example of master and servant given above, it is clear that the servant has possession in fact of the cycle, not possession in law which rests with the master. Possession in fact does not need to be recognised by law.
Footnotes
[1] https://timesofindia.indiatimes.com/india/175-years-later-West-Bengal-case-goes-on-and-on/articleshow/3690564.cms.
[2] https://www.bbc.com/news/world-asia-india-21446272.
[3] Section 110, The Indian Evidence Act, 1872, №01, Acts of Parliament.
[4] http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/5/05_chapter%203.pdf.
[5] REGINALD WALTER MICHAEL DIAS, Jurisprudence, 1st rep. 2014, 5th ed. 2013, pg. 272.
[6] Ibid.
[7] RICHARD A. POSNER, Savigny, Holmes and the Law and Economics of Possession, Virginia Law Review, 2000, pp. 535–567.
[8] Supra, note 4.
[9] HENRY SUMMER MAINE, Ancient Law, 6th ed. 1876, pg. 47.
[10] JOHN SALMOND, Jurisprudence, 12th ed. 1966, pg. 265.
[11] Section 06, The Specific Relief Act, 1963.
[12] Section 378, Indian Penal Code, 1860.
[13] https://legal-dictionary.thefreedictionary.com/possession.
[14] United States v. Donald Derose, 74 F.3d 1177 (11th Cir. 1996).
[15] http://www.publishyourarticles.net/knowledge-hub/law/what-are-the-differences-between-possession-in-law-and-possession-in-fact/4253/.
[January 2019]
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