MODES OF ACQUISITION OF POSSESSION
(1) Introduction:-
In the whole range of legal theory, conception of possession is the most difficult one. Possession is undoubtedly an important topic in any legal study. However, it is most ambiguous topic as it has never remained an easy task to verify concept of possession. In simple words and broader sense, it is described that possession is evidence of ownership; possessor of a thing is usually presumed to be owner of it, and all other persons, who claim ownership of this thing, have to prove their title over this thing.
(2) Definition Of Possession:-
Possession can be defined as a right under which a person not only exercises control over something, but also uses this thing to the exclusion of all other persons, and such exercise of control and use of thing is continuous exercise of control and use.
(3) Possession In Words Of Salmond:-
According to Salmond, Possession is the continuing exercise of a claim to the exclusive use of it
(4) Acquisition Of Possession:-
The gaining of possession or control over something is called acquisition of possession. Acquisition of possession can be either through consent or through force. In addition to this acquisition of possession can also be done through law. Hence, there are following three modes of acquisition or acquiring of possession:
(i) Acquisition through consent
(ii)Acquisition through force
(iii)Acquisition through law
(i) Acquisition of Possession Through Consent:-
If owner of property delivers possession of property to someone else with his/her own free will and consent, then such acquisition of possession is called acquisition of possession through consent. Here best example is handing over of property by landlord to a tenant.
(ii) Acquisition of Possession Through Force:-
Gaining of possession or control over a property can be through force. Such acquisition of possession is usually done without consent of owner of property and it can be done either by committing fraud against owner or by inflicting torture upon owner.
(iii) Acquisition Of Possession Through Law:-
Another mode of acquisition of possession is transfer of possession of some property through law. Here the best example is transfer of inheritance of a deceased person to his/her legal and Shari heirs.
(5) Kinds Of Possession:-
Some kinds of possession are:
(i) Actual possession
(ii) Adverse possession
(iii) Bona fide possession
(iv) Concurrent possession
(v) Constructive possession
(Vi) Corporeal possession
(vii) Derivative possession
(viii) Immediate possession
(ix) Immemorial possession
(X) Incorporeal possession
(xi) Joint possession
(xii) Mediate possession
(xiii) Possession in fact
(xiv) Possession in law
(xv) Representative possession
(i) Actual Possession:-
Actual possession means physical occupancy or control over property.
(ii) Adverse Possession:-
Adverse possession means enjoyment of property with a claim of right when enjoyment is opposed to another persons claim and is continuous, exclusive, hostile, open and notorious.
(iii) Bona Fide Possession:-
Bona fide possession means possession of property by a person, who, in good faith, does not know that the property ownership is disputed.
(iv) Concurrent Possession:-
It is not possible in law that possession of a thing may belong to more than one person at the same time. But reality is that such possession is possible. When a person possesses a property and, at the same time, another person possesses right of way over this property, then such possession is called concurrent possession.
(v) Constructive Possession:-
Constructive possession means control or dominion over a property without actual possession or custody of it. It is also termed as effective possession.
(vi) Corporeal Possession :-
Corporeal possession can be defined as possession of a material object such as house, land, shop etc.
(vii) Derivative Possession :-
Derivative possession is a lawful possession by one, who does not hold title. For example, creditor has derivative possession over a pledged thing.
(viii) Immediate Possession:-
Immediate possession means possession, which is acquired directly or personally. It is also termed as direct possession.
(ix) Immemorial Possession:-
Immemorial possession is that possession, which began so long ago that no one is still living to witness its beginning.
(x) Incorporeal Possession:-
Incorporeal possession can be defined as possession of something other than material object such as an easement over a neighbours land or access of light to windows of house. It is also termed as quasi-possession.
(xi) Joint Possession:-
Joint possession means that possession, which is shared by two or more persons. It is also termed as duplicate possession.
(xii) Mediate Possession:-
When possession of a thing is acquired through someone else such as agent, then such possession is called mediate possession. It is also termed as indirect possession.
(xiii) Possession In Fact:-
Possession in fact can be defined as actual possession, which can or cannot be recognized by law. For example, possession of a tenant over a rented shop is possession in fact. It is also termed as de facto possession.
(xiv) Possession In Law:-
Possession in law means a possession, which is recognized by law. Its best example is when a house is rented out by owner to some tenant, possession of owner over rented house is possession in law.
(xv) Representative Possession :-
Representative possession is that possession through which owner of property exercises control over his property or uses his property either through his agent or servant.
(6) Conclusion:-
To conclude, it can be stated that concept of possession is very significant; no one can be real owner of a property without gaining its possession. It means that ownership over a property is only legally recognized when person, who claims ownership, possesses property. However, possession is, sometimes, gained to enjoy other benefits like those of a tenant or lessee.
Jurisprudence Notes for LLB, Law GAT