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Possession – OCCUPY

June 30, 2021


The Word “possession” is not purely a legal concept but a polymorphous term which may have different meanings in different contexts. “Possession”, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control, Supt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja(1979) 4 SCC 274: 1979 SCC (Cri) 1038

 Halsbury’s Laws of England, IVth Edn., Vol. 35 in para 1214 at p. 735, the word “possession” is used in various contexts and phrases, for example, in the phrase “actual possession” or “to take possession” or “interest in possession” or “estate in possession” or “entitled in possession”. Legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession. Possession is the objective realisation of ownership. It is the de facto exercise of a claim to certain property and a de facto counterpart of ownership. Possession of a right is the de facto relation of continuing exercise and enjoyment as opposed to the de jure relation of ownership. Possession is the de facto exercise of a claim to certain property. It is the external form in which claims normally manifest themselves. Possession is in fact what ownership is in right enforceable at law to or over the thing. A man’s property is that which is his own to do what he likes with it. Those things are a man’s property which are the object of ownership on his part, B. Gangadhar v. B.G. Rajalingam(1995) 5 SCC 238.  Possession is not disturbed by transfer of ownership, Anton Francies v. Tukaram(2005) 10 SCC 345. The state of owning or having a thing in one’s own hands or power; the thing possessed. It is either actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abator, intruder or disseisor, who died seised; in law, when lands, etc., have descended to a man and he has not actually entered into them or naked, that is, mere possession, without colour of right.

It is a principle of law that a person who has been in long continuous possession of an immovable property can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law, Prataprai N. Kothari v. John Braganza(1999) 4 SCC 403.

Delivery of possession and possession: — Abu Khan v. Moriam Bibi [(1974) 40 Cut LT 1306] held: “… Delivery of possession may be either actual or constructive. ‘Possession’ has been defined in Section 394 of Muslim Law by Tyabji. ‘A person is said to be in possession of a thing or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering or as is usually derived from it’, Abdul Rahim v. S.K. Abdul Zabar(2009) 6 SCC 160.

Possession and Occupy: — In common parlance they may be used interchangeably but in law, “possession” amounts to holding property as an owner, while “occupy” is to keep possession by being present in it, Ram Dass v. Davinder(2004) 3 SCC 684.

Possession and ownership :— The word “possession” no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods, Avtar Singh v. State of Punjab(2002) 7 SCC 419: 2002 SCC (Cri) 1769.

Taking and retaining:— The dichotomy between taking and retaining indicates that they are mutually exclusive and apply to two different situations. The word “taking” applies to a person taking possession of a land otherwise than in accordance with the provisions of the law, while the word “retaining” to a person taking possession in accordance with the provisions of the law but subsequently retaining the same illegally, Bhinka v. Charan Singh, AIR 1959 SC 960: 1959 Supp (2) SCR 798: 1959 Cri LJ 1223.

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