vustudents
09-07-2011, 12:13 AM
Q. Possession is considered to the prima facie evidence of ownership. Explain the logic behind the idea. (2001)
Q. Define Possession. Explain in the concept of Animus Possidendi. How possidendi is realized. (1998), (1998 Annual)
Q. what is meant by possession in fact and possession in law? Explain with examples. (1933)
1. Introduction:
Possession is one the most important concept in the whole range of legal history. It is mere fact, which has an enormous legal significance, to which legal rights are attached and legal consequences flow. Possession is prima facie evidence of ownership and anyone desiring to disturb it must show either a title or a better possessor right. Possession is 9/10th of ownership.
2. Definition Of Possession:
I. According To Salomnd:
“The possession of the material object is the continuing exercise of a claim to the exclusive use of it”
II. According To Pollock:
“In common speech, a man is said to possess or to be in possession of anything which he has the apparent control or form the use of which he has the apparent power of excluding others.”
3. Possession As Evidence Of Ownership:
According To Ihering:
Possession is ownership on the defensive. It is the evidence of ownership. Possession is the nine points of law and hence protection should be given to possession.
I. Illustrations:
To support the above statement, following illustration or cases may be put.
(i) A finder of goods becomes its owner against the whole world except the true owner. [Hannah vs. peel, 1945]
(ii) If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the tight of the original owner is extinguished.
(iii) In many legal systems , possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover if form any of whatsoever, or the ground of his possession.
(iv) Even the true owner who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.
Example:
In Pakistan, under section 145 Cr .p . c, a magistrate can restore possession back to the person forcibly dispossessed form an immoveable property, which is likely to cause breach of public pace.
(v) First possession of a thing which as yet belongs to on one is good title of right.
(vi) Prior possession is prima facie proof of it.
(vii) He who is in possession first in time has a better title than the one who has no
possession.
II. Possessory Remedies:
Possessory remedies are those which exist for the protection of possession even against ownership. One of the main reason for the possessory remedies is that the possession is the prima facie evidence of ownership
III. Doctrine Of Jus TertII:
Thought possession is a prime facie proof of ownership, A defendant is at liable to rebut that presumption by providing that he has a better title but a defendant who has violated the possession of the plaintiff is not allowed to setup the defence of jus Tertii which means that he cannot that neither the plaintiff nor he has title, but some third person has.
Example:
English law considers jus tertii as a good defence under the following circumstances.
(i) When the defendant defends the action on behalf of and by the authority of the owner.
(ii) When he committed the complained of by the authority of the true owner.
(iii) When he has already made satisfaction of the true owner by retuning property to him.
4. Categories Of Possession:
Possession is divided into two categories:
I. Possession in fact
II. Possession in law
I. Possession In Fact:
Possession in fact is actual or physical possession. It is a physical relation to a person who had the things within his control deal with it as he liked to the exclusion of everyone else.
Example:
When a servant hold certain things in his custody on behalf of the master, he has the possession in fact and not in law.
II. Possession In Law:
Possession in law means possession un the eye of law. It means a possession which is recognized and protected by law. Law wanted to give possession, or the right to exercise a claim to the exclusive control of a things, and along with it all the other advantages and rights which were closely associated with the idea of possession or physical control to a person, who had no actual physical control over it.
Example:
When a servant holds certain good on behalf of his master, a master still holds possession in law thought not in fact.
A. Fundamental Element In Possession In Fact And Possession In Law:
There is sometimes a discrepancy between possession in fact and possession in law, although usually possession exists both in fact and in law in the same person. A person who is in defacto possession of a thing also come to have dejure possession. The fundamental element both in possession in fact and possession in law is the same viz. possibility of excluding every person other than the possessor form the use or control of the thing.
5. Elements Of Possession:
There are two elements of possession.
I. Corpus possession (physical element)
II. Animus possidendi (mental element)
I. Corpus Possession:
It meant that there exists such physical power or physical contract of the possessor in relation to the thing possessed. So as to give rise to the reasonable assumption the other people will not interfere with it.
A. Essentials Of Corpus Possession:
To constitute the corpus possession is:
(i) There must be a guarantee of control between the person in possession and the thing possessed.
(ii) So long as there is a guarantee of control, physical contact is not necessary.
(iii) The control may be exercised by a servant or an agent.
B. Consideration Of Corpus Of Possession:
Salmond considers corpus possession under two headings:
(i) Relation of the possession to things possessed.
(ii) Relation of the possessor to the other person.
(i) Relation of the possessor to the things possessed:
All that is necessary is that the possessor must have the physical power of dealing with the things exclusively as his own.
According to Savigny:
“The physical power of dealing with the subject immediately and of excluding any foreign agency over it is factum which must exist in every acquisition of possession.”
(ii) Relation of the possessor to the other person:
When I possess a thing, it means that others shall not interfere with the use of the thing. Salmond points out that this measure of security tat a person will not be interfered with can be derived form several sources.
(a) Physical Power of the possessor: By physical power of the possessor to exclude alien interference.
(b) Personal Presence of the [Possessor: By the personal presence the possessor e.g., A dying man may retain or acquire possession by his personal presence but not by any physical power left in him.
(c) Secrecy: Another source of security may be secrecy. By hiding the thing the possessor can always exclude alien interference.
(d) Custom: Another measure of security custom e.g., if a man has ploughed and sown and reaped the harvest year after year, he can reasonably expect to do it again the next year without interference.
(e) Respect for rightful claim: Another measure of security claim as against a wrongful one, will be accepted and respected by the community at large. It depends upon opinion of the community.
(f) Manifestation of Animus domini: Another means of security is the manifestation of the animus domini i.e., the visibility of the claim. The animus can be manifested only by an avert act.
(g) Protection afforded by possession of other things: Another measure of security is the protection afforded by the possession of other things. The possession of a house consider possession of chattels situated upon it.
II. Animus Possidendi:
Animus possidendi is the intent to appropriate to oneself the exclusive use of the things possessed. It is the conscious intention of the individual to exclude others form the control of an object.
According to Savigny:
“Every case of possession is formed on the state of consciousness of unlimited physical power.
A. Different Aspects Of Animus Possidendi:
There are certain aspects of animus possidiendi which have to be considered.
(i) Not necessarily a claim of right:
The animus possidendi is not necessarily a claim of right. It may consciously wrongful. The thief has a possession no less real than that of the true owner.
(ii) Exclusive claim:
The claim of the possessor must be exclusive. He must intend to exclude other person form the use of the things possessed. A mere intent or claim of use cannot amount to the possession of the material thing itself.
(iii) Need not claim of thing:
The animus possidendi need not be a claim to the use of the things at all as in the case of a pledge or a beailee with a line.
(iv) Need not claim on one, s own behalf:
The animus possidendi need not be a claim on one, s own behalf. As servant, agent of trustee may have true possession though he claim the exclusive use or control of the thing on behalf of another.
(v) Need not be specified:
The animus Possidendi need not be specified but may be merely general’. A general intent with respect to a class of thongs is sufficient to confer possession of the individual object belonging to they class even of the their individual exercise is unknown e. g., I possess all the books in my library even though I may have forgotten the existence of many of them.
6. Conclusion:
To conclude, I can say, that many legal consequences flow form the acquisition and loss of possession. It is the prima facie title of the ownership. The possession may be in fact or in law and two elements corpus and animus must be present in the case of possession and neither of them alone is sufficient to constitute it.
Q. Define Possession. Explain in the concept of Animus Possidendi. How possidendi is realized. (1998), (1998 Annual)
Q. what is meant by possession in fact and possession in law? Explain with examples. (1933)
1. Introduction:
Possession is one the most important concept in the whole range of legal history. It is mere fact, which has an enormous legal significance, to which legal rights are attached and legal consequences flow. Possession is prima facie evidence of ownership and anyone desiring to disturb it must show either a title or a better possessor right. Possession is 9/10th of ownership.
2. Definition Of Possession:
I. According To Salomnd:
“The possession of the material object is the continuing exercise of a claim to the exclusive use of it”
II. According To Pollock:
“In common speech, a man is said to possess or to be in possession of anything which he has the apparent control or form the use of which he has the apparent power of excluding others.”
3. Possession As Evidence Of Ownership:
According To Ihering:
Possession is ownership on the defensive. It is the evidence of ownership. Possession is the nine points of law and hence protection should be given to possession.
I. Illustrations:
To support the above statement, following illustration or cases may be put.
(i) A finder of goods becomes its owner against the whole world except the true owner. [Hannah vs. peel, 1945]
(ii) If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the tight of the original owner is extinguished.
(iii) In many legal systems , possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover if form any of whatsoever, or the ground of his possession.
(iv) Even the true owner who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.
Example:
In Pakistan, under section 145 Cr .p . c, a magistrate can restore possession back to the person forcibly dispossessed form an immoveable property, which is likely to cause breach of public pace.
(v) First possession of a thing which as yet belongs to on one is good title of right.
(vi) Prior possession is prima facie proof of it.
(vii) He who is in possession first in time has a better title than the one who has no
possession.
II. Possessory Remedies:
Possessory remedies are those which exist for the protection of possession even against ownership. One of the main reason for the possessory remedies is that the possession is the prima facie evidence of ownership
III. Doctrine Of Jus TertII:
Thought possession is a prime facie proof of ownership, A defendant is at liable to rebut that presumption by providing that he has a better title but a defendant who has violated the possession of the plaintiff is not allowed to setup the defence of jus Tertii which means that he cannot that neither the plaintiff nor he has title, but some third person has.
Example:
English law considers jus tertii as a good defence under the following circumstances.
(i) When the defendant defends the action on behalf of and by the authority of the owner.
(ii) When he committed the complained of by the authority of the true owner.
(iii) When he has already made satisfaction of the true owner by retuning property to him.
4. Categories Of Possession:
Possession is divided into two categories:
I. Possession in fact
II. Possession in law
I. Possession In Fact:
Possession in fact is actual or physical possession. It is a physical relation to a person who had the things within his control deal with it as he liked to the exclusion of everyone else.
Example:
When a servant hold certain things in his custody on behalf of the master, he has the possession in fact and not in law.
II. Possession In Law:
Possession in law means possession un the eye of law. It means a possession which is recognized and protected by law. Law wanted to give possession, or the right to exercise a claim to the exclusive control of a things, and along with it all the other advantages and rights which were closely associated with the idea of possession or physical control to a person, who had no actual physical control over it.
Example:
When a servant holds certain good on behalf of his master, a master still holds possession in law thought not in fact.
A. Fundamental Element In Possession In Fact And Possession In Law:
There is sometimes a discrepancy between possession in fact and possession in law, although usually possession exists both in fact and in law in the same person. A person who is in defacto possession of a thing also come to have dejure possession. The fundamental element both in possession in fact and possession in law is the same viz. possibility of excluding every person other than the possessor form the use or control of the thing.
5. Elements Of Possession:
There are two elements of possession.
I. Corpus possession (physical element)
II. Animus possidendi (mental element)
I. Corpus Possession:
It meant that there exists such physical power or physical contract of the possessor in relation to the thing possessed. So as to give rise to the reasonable assumption the other people will not interfere with it.
A. Essentials Of Corpus Possession:
To constitute the corpus possession is:
(i) There must be a guarantee of control between the person in possession and the thing possessed.
(ii) So long as there is a guarantee of control, physical contact is not necessary.
(iii) The control may be exercised by a servant or an agent.
B. Consideration Of Corpus Of Possession:
Salmond considers corpus possession under two headings:
(i) Relation of the possession to things possessed.
(ii) Relation of the possessor to the other person.
(i) Relation of the possessor to the things possessed:
All that is necessary is that the possessor must have the physical power of dealing with the things exclusively as his own.
According to Savigny:
“The physical power of dealing with the subject immediately and of excluding any foreign agency over it is factum which must exist in every acquisition of possession.”
(ii) Relation of the possessor to the other person:
When I possess a thing, it means that others shall not interfere with the use of the thing. Salmond points out that this measure of security tat a person will not be interfered with can be derived form several sources.
(a) Physical Power of the possessor: By physical power of the possessor to exclude alien interference.
(b) Personal Presence of the [Possessor: By the personal presence the possessor e.g., A dying man may retain or acquire possession by his personal presence but not by any physical power left in him.
(c) Secrecy: Another source of security may be secrecy. By hiding the thing the possessor can always exclude alien interference.
(d) Custom: Another measure of security custom e.g., if a man has ploughed and sown and reaped the harvest year after year, he can reasonably expect to do it again the next year without interference.
(e) Respect for rightful claim: Another measure of security claim as against a wrongful one, will be accepted and respected by the community at large. It depends upon opinion of the community.
(f) Manifestation of Animus domini: Another means of security is the manifestation of the animus domini i.e., the visibility of the claim. The animus can be manifested only by an avert act.
(g) Protection afforded by possession of other things: Another measure of security is the protection afforded by the possession of other things. The possession of a house consider possession of chattels situated upon it.
II. Animus Possidendi:
Animus possidendi is the intent to appropriate to oneself the exclusive use of the things possessed. It is the conscious intention of the individual to exclude others form the control of an object.
According to Savigny:
“Every case of possession is formed on the state of consciousness of unlimited physical power.
A. Different Aspects Of Animus Possidendi:
There are certain aspects of animus possidiendi which have to be considered.
(i) Not necessarily a claim of right:
The animus possidendi is not necessarily a claim of right. It may consciously wrongful. The thief has a possession no less real than that of the true owner.
(ii) Exclusive claim:
The claim of the possessor must be exclusive. He must intend to exclude other person form the use of the things possessed. A mere intent or claim of use cannot amount to the possession of the material thing itself.
(iii) Need not claim of thing:
The animus possidendi need not be a claim to the use of the things at all as in the case of a pledge or a beailee with a line.
(iv) Need not claim on one, s own behalf:
The animus possidendi need not be a claim on one, s own behalf. As servant, agent of trustee may have true possession though he claim the exclusive use or control of the thing on behalf of another.
(v) Need not be specified:
The animus Possidendi need not be specified but may be merely general’. A general intent with respect to a class of thongs is sufficient to confer possession of the individual object belonging to they class even of the their individual exercise is unknown e. g., I possess all the books in my library even though I may have forgotten the existence of many of them.
6. Conclusion:
To conclude, I can say, that many legal consequences flow form the acquisition and loss of possession. It is the prima facie title of the ownership. The possession may be in fact or in law and two elements corpus and animus must be present in the case of possession and neither of them alone is sufficient to constitute it.