Protection of Possession in India

 

Khushal Suryawnshi

 

4th  Year Student, Hidayatullah National Law University, Raipur

 

Possession is an evidence of ownership.¹ Its transfer is one of the chief methods of transfer ownership. The possession of a thing is a good title against the whole world except the real owner. That is why it is said that ‘possession is nine points of the law’. Long possession creates ownership by prescription. Possession is the basis or ground of obtaining certain legal remedies, for example the possessory remedy. Possession plays a very important role in criminal law. In a number of offences against property possession becomes the main issue to be determined. ² There are two elements which are essential to the concept of possession. ³

1.      One is a physical element and consists in physical control over the things and is known as corpus possessionis, and

2.      Second is a mental element i.e. animus possidendi which consists in the determination to exercise that control.

 

POSSESSION AND OWNERSHIP

The relationship between ownership and possession is same as that of body with soul. According to Salmond, a person is said to be the owner of a thing when his claim receives the recognition and protection from the law of a state, but possession may be exercised and realised even without such recognition or protection from the law.⁴  In its normal manifestation ownership is united with possession. The owner of a thing is usually also the possessor of it. A disinjunction of ownership from possession may be affected ex contract or extudelicto. The owner may by voluntary act part with his right to possession or suffer a forcible ouster at the hands of a trespasser. The possessor in such cases is not the owner and in mature systems of jurisprudence the law of possession is distinct and separate from the law of ownership.

 

PROTECTION OF POSSESSION

In common parlance, a person is said to have possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it. This is the concept of de facto possession i.e. possession in fact. This conception was found to be an insufficient exposition since it could not answer a number of cases where there was absence of such control. Slowly law began taking cognisance of the need for a wider understanding of possession, a system of rights (possessory rights) and remedies (possessory remedies) being constructed around the concept. This gave rise to the requirement being of legal recognition of the scope of possession and hence came into being the concept of legal possession and then the protection of possession.

 

Legal remedies for the protection of possession are called possessory remedies and those available for the protection of ownership are called proprietary. Possessory remedies are those which exist for the protection of possession even against ownership.

 

 

NEED FOR PROTECTION OF POSSESSION

Law protects possession even when it has been wrongfully obtained. ⁵ There are three reasons for the protection of possession: ⁶

 

1.      Protection of possession aids the criminal law by preserving the peace. According to Savigny protection of possession is a branch of the law for protecting the person. Possession in this view is protected in order to obviate unlawful acts of violence against the persons in possession. Interference with possession inevitably leads to a disturbance of the peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a Court of Law.

 

2.      Possession is protected as part of the Law of Tort. According to Kant, possession should be protected by law because a man by taking possession of an object has brought it within the sphere of his will. And it is the object of each state to protect one’s will. As possession is a manifestation of will, it is to be protected by law. 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, that is, the state. Since possession involves an extension of personality over the object, it is protected by the law. Just as a person’s reputation is protected against defamatory attacks, so too in his possession protected from disturbance by fraud for he has projected his personality over the possession.

 

3.      Possession is protected as part of the law of property. In the early stages of the development of the law of property when proof of title was difficult, it was felt to be unjust to cast on a person whose possession was disturbed the burden of proving the flawless title. The law therefore presumed that the possessor was the owner until a superior title was shown to exist in someone else. In this way possession s such came to be protected by the law. Inhering is of the view that protection of possession is necessary as the protection of the right to property. The law of property makes various provisions to protect possession. For example. Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

 

4.      Possession is protected as a part of the law of property. Cairns writes: "Possession was originally protected to aid the Law of Crime and Tort; it came at length to be protected in order to aid the law of property." In the early stages of the development of the law of property when proof of title to property was difficult, it was considered to be unjust to cast on a person whose possession was disturbed the burden of proving a flawless title. Therefore, the law presumed that the possessor was the owner until a superior title was shown   to exist in someone else. In this way, possession came to be protected by law. ⁷

 

REMEDIES IN INDIAN LAWS

The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. This is the main part of this project in which the legal status or protection of possession shall be discussed.

 

Specific relief act, 1963

The Specific Relief Act 1963 in chapter 1 provides a remedy for the recovery of possession of property, movable and immovable.

 

Recovering possession of immovable property – S. 5 of the SRA deals with action for recovery of possession of specific immovable property based on title. The essence of the section is that whoever proves a better title in a person entitled to possession. The title may be on the basis of ownership or possession.⁸ Section 6 says that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof⁹ but no suit shall be brought after the expiry of six months from the date of dispossession. ¹⁰ This section further says that no suit can be filed against Government for recovery of possession. ¹¹

 

Recovering possession of specific movable property – The provision of Specific Relief Act says that a person who is entitled to possession of a specific movable property may recover it in the manner provided in Code of Civil Procedure. ¹² If any person is in possession or control of a specific movable property of which he is not owner, he can be compelled to specifically deliver it to the person entitled to immediate possession, in the following specified cases: ¹³

1.      When the thing claimed is held by the defendant as the agent or trustee of the plaintiff;

2.      When compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;

3.      When it would be extremely difficult to ascertain the actual damage caused by its loss;

4.      When the possession of thing claimed has been wrongfully transferred from the plaintiff.

 

Transfer of Property Act, 1882

Transfer of Property Act also recognizes the concept of possession. The use of possession can be seen in a few important areas namely constructive notice, part performance and in the attempt to differentiate between lease and licence. This Act deals with the immovable property.

 

Section 3 explanation II of TPA states that any person, at the time of acquiring any immovable property or any share or interest in such property is to be deemed to have had notice of the title, if any, of a person who is for the time-being in actual possession thereof. It means he who has actual possession is very likely to have title to the property. This section deals with the concept of constructive notice. Section 53-A deals with the Doctrine of Part Performance.

 

Code of Criminal Procedure, 1973

s. 145 of the Cr. P. C. lays down the procedure where a dispute concerning land or water is likely to cause breach of peace.

 

s. 456 of the same code provides that when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and by such force or show of force or intimidation, any person has been dispossessed 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. The unpaid seller has the right to retain the goods until he reserves their price. S. 48 of the same act provides for part delivery  where an unpaid seller has delivered a part of the goods, he may exercise his lien on the remainder. The party, who alleges that part delivery was intended to operate as delivery of the whole, has to prove that fact.

 

Indian Contract Act, 1872

SS. 168 & 169 protect the interest of the finder in 2 ways- s. 168 allows the finder to retain the goods against the owner until he receives compensation for trouble and expense. Further, where the owner has offered a specific reward for the return of the goods lost, the finder may sue for such reward, and may retain the goods until he receive it.

 

S. 169 allows the finder to sell the goods in certain circumstances. Where the thing found is commonly the subject of sale and if the owner cannot be found with reasonable diligence, or if he refuses to pay the lawful charges of the finder, the finder may sell the goods in the following cases:

1.    When the thing is in danger of perishing or of losing greater part of its value,

2.    Or when the lawful charges of the finder, in respect of the thing found, amount to 2/3 of its value.

 

For it has been held that, if a stick of timber comes ashore on a man's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it.

 

Law of Tort

The law of tort protects the trespass to land and reversion and trespass to goods. ¹⁴

 

Remedies available to a landowner or possessor of land that is subjected to trespass are the following:¹⁵ Ejection, Self help, Use of force , and by bringing action in court of law.

 

For trespass to chattel or goods the following are the remedies:

1.      Legal Remedies

2.      Extra-legal Remedies

 

Legal remedies are: action for damages and for specific restitution of goods.

 

CONCLUSION:

Every society needs laws to regulate its working. In the gamut of the laws which seeks organized society, one of the functions of the laws is to determine what is to constitute possession. Possession is no longer considered a relationship between men and things, it has more to do now with relations between people.  Where those relations are in dispute there will be various values, sometimes competing, to be considered.

 

REFERENCES:

1.       Section 110 of the Indian Evidence Act 1872: - “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.”

2.       Section 378 of IPC, 1860, definition of theft.

3.       Avtar Singh, “Introduction to Jurisprudence”, 1^st ed., 2001, p. 224.

4.       Avtar Singh, “Introduction to Jurisprudence”, 1^st ed., 2001, p. 221-222.

5.       Avtar Singh, “Introduction to Jurisprudence”, 1^st ed., 2001, p. 224.

6.       S.R. Myneni, “Jurisprudence”, 2^nd ed., 2007, p., 287.

7.       Mahesh Bissa, “Possessory Remedies in the Indian Law”, http://www.goforthelaw.com/ articles/fromlawstu/article33.htm

8.       Mahesh Bissa, “Possessory Remedies in the Indian Law”, http://www.goforthelaw.com/ articles/fromlawstu/article33.htm

9.       Section 6 (1) of Specific Relief Act, 1963.

10.     Section 6 (2) (a) of Specific Relief Act, 1963.

11.     Section 6(2) (b) of Specific Relief Act, 1963.

12.     Section 7 of Specific Relief Act, 1963.

13.     Section 8 of Specific Relief Act, 1963.

14.     B. M. Gandhi, “Law of Torts”, 3^rd ed., 2006, pp. 183-184.

15.     Ibid  pp. 187-188.