The concept of property occupies an important place in human life

because it is practically impossible to live without the use of material object

which constitutes the subject matter of property. Property may be classified
into- corporeal and incorporeal property, movable and immovable property, real
and personal property, public and private property. There are four important
modes of acquisition of property namely, possession, prescription, agreement,
inheritance.
There are Several theories about the origin of the Property. But none of
them is perfect. Each theory has its own merits and demerits. There are different
opinions and different theories among the jurisprudents about the definition of
property which differs from theory to theory

I) Meaning and definition of property -

The word 'property' is derived from the Latin term 'properietate' and the
French equivalent 'proprius' which means a thing owned. The concept of
property and ownership are very closely related to each other. There can be no
property without ownership and ownership without property. There are two
Kinds of Property namely, Corporeal and Incorporeal Property. The concept of
property occupies an important place human life because it is impossible to live
without property. There are four modes of acquisition of property.
II) Kinds of property -
Property is essentially of two kinds Corporeal Property and Incorporeal
Property. Corporeal Property can be further divided into Movable and
Immovable Property and real and personal property. Incorporeal property is of
two kinds-in re propria and rights in re aliena or encumbrances.

1) Corporeal And Incorporeal Property -

(I) Corporeal Property -

Corporeal property is the right of ownership in material

things.Corporeal property is always visible and tangible. Corporeal property can
be perceived by senses. It can be seen or touched.

Examples -A House, Land, Car, Bike etc

Corporeal property may be divided into two classes-

1. Movable Property (Chattels) and Immovable property. (Land and buildings)

 2. Real Property and Personal Property

(II) Incorporeal Property -

Incorporeal property also called as intellectual or conventional

property. it includes all those valuable interests which are protected by
law.Incorporeal property is intangible. It cannot be Perceived by Senses.

Examples - Patents, Copyrights, Trademarks etc.

Incorporeal property is divided into two classes-

(a) Jura in re propria Over Material things (for example patents, copyrights,
trademarks etc)

(b) Jura in re Aliena encumbrances, whether over material or immaterial

things, for example, Lease, Mortgages and Servitude etc.

2) Movable Property and Immovable Property –

All Corporeal Property is either movable or immovable. In English law,
these are termed as chattels and land respectively.

(I) Movable Property -

Movable property is one, which can be transferred from one place to

another place with the human efforts.

(II) Immovable Property -

According to the General Clauses Act, 1897 "Immovable property includes

land, benefits arising out of land and things attached to the earth or permanently
fastened or anything attached to the earth."
According to the Indian Regulation Act, "immovable property includes land,
building, hereditary allowance, rights of way, lights, Ferries, Fisheries or any
other benefit to arise out of land and things attached to the earth or
permanently fastened to anything attached to the earth but not standing Timber,
growing crops or grass.
 Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable
property as "immovable property does not include standing Timber, growing
crops or grass. Movable property includes corporeal property which is not
immovable.
According to Salmond immovable property (i.e., land) has the following
elements-

A) a determinate portion of the surface of the earth.

B) The ground beneath the surface down to the centre of the earth

C) The column of space above the surface ad infinitum.

D) All objects which are on or under the surface in its natural state for
example-minerals natural
vegetation, or stones lying loose upon the surface.

E) An object placed by human agency on or under the surface of the land

with the intention of permanent an annexation, for example, House walls,
Doors, Fences, etc.

3) Real and Personal Property -

In English law, the property has been divided into the real and personal
property. This division is identical to a great extent with that of immovable or
movable. The division into real and personal is not based on any logical
principle but is a result of the course of legal development in England.

a) Real property -

The real property includes all rights over land with such additions and
exceptions, as the law has deemed fit.

b) Personal property -

The law of personal property includes all other proprietary rights whether
they are in rem or in personam.
4) Public property and private property -
Having regard ownership property is either public or private -

(a) Public property-

Public property is that owned by the public as such in some
governmental capacity. Public property is used as a designation of which are
Public Juris and therefore, are considered as being owned by the public. the
entire state or the community and not restricted to the domain of private person
or that which belongs to a state or political constituents like provinces etc
(b) Private property -

The private property is that which is owned by an individual or some

other private person.
III) Modes of acquisition of property -
According to Sir John Salmond, there are four kinds of acquisition of
property those are possession, prescription, agreement and inheritance.

I) Possession -

A possession is the objective realization of ownership Possession means

Physical Control over a thing or an object. It is Prima facia evidence of
ownership.The property which belongs to no one i.e. Res nullius, belongs to the
first possessor of it and he acquires a valid title to it against the world. A
property which is already in possession of someone else, when acquired by
possession, gives a good title to the possessor against all third persons except
the true owner. Even as against the true owner, the possessor is entitled to
maintain his possession until evicted in due course by law. In such a case of
adverse possession, there are in fact two owners the ownership of one is
absolute and perfect, while that of the other is relative and imperfect and often
called possessory ownership by reason of its origin possession.
If a possessory owner is deprived of its possession by a person who is other
than the true owner, he has the right to recover possession of the same.
If Property belongs to nobody, the person who captures and possesses it has
a good title against the whole world. In this way, the birds of the air and the fish
of the sea are the property of that person who first catches them.
The possessor has better title against the whole world, except true owner. Even
if the possession is wrongful, the possessor if deprived of wrongfully, he is
protected by law providing for possessory remedy.

There are many reasons for the protection of possession

1) According to the philosophical School of jurists, possession is

protected because a man by taking possession of an object has brought it within
the sphere of his will. The freedom of the will is the essence of personality and
has to be protected so long as it does not conflict with the universal will which
is the State. As possession involves an extension of personality over the object,
it is protected by law. As the reputation of a person he is protected against
defamatory attack, his possession is protected as he has projected his
Personality over the object possession.

2) Possession is an Evidence of ownership, Section 110 of Indian

Evidence Act 1872- Provides ' when any 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 owner is on the person who affirm that he is not the
owner.
3) The possession even if it is wrongful is a good title against the
whole world except the true owner.

4) Possession is protected for the preservation of peace: It is the

natural human Instinct that he does not easily part of with what he possesses.
The interference with the possession leads to violence. Thus the protection is
given to the Possession to aid criminal law and it prevents a breach of peace.

5) Section 145 of CrPC deals with the dispute of immovable property to

provide speedy remedy for the prevention of breaches of peace out of such
dispute. The object of this section is to enable an executive Magistrate to
intervene and pass a temporary order in regard to the possession of the property
in dispute, till the competent civil court determines the right of the parties. The
executive Magistrate shall determine the possession of immovable property on a
particular date and issue an order declaring such party to be entitled to
Possession, thus restore to Possession to the party who was forcibly and
wrongfully dispossessed of.
 6) Possession is protected as a part of law of tort. Law protects
possession not only from disturbance by force but from disturbance by fraud.
The protection thus afforded as a part of the law of tort.

7) Section 53a Transfer of Property : Doctrine of part performance

which provides, there is a contract of sale in respect of immovable property
where in transferor by writing, signed by him agrees to transfer such immovable
property and the transferee has taken the Possession of the immovable property
and continuous to be in possession of immovable property and the transferee
has done something in furtherance of such transfer and ready and willing to
perform transfers have done something his part under the contract of transfer,
then even though such contract is required to be registered by any law and not
registered in fact then also the transferor id debarred from claiming any right
against such transferee.

8) Section 47 sale of Goods Act: right of the seller to lien. The seller if
unpaid seller is and if the Possession is still with the seller he can retain the
goods.
9) Right of Bailee in contract of bailment: Indian Contract Act 1872,
Section. 170, 171. The Bailee too has a right to lien the goods bailed to unless
he is paid remuneration by Bailor till then he is entitled to keep the position of
the goods.
10) In offence of theft in IPC Section 378: Possession is essential
element. Even though the possession was wrongful and the Possession of such
thing is taken without the consent of the possessor with dishonest intention.

II prescription:
According to Salmond: "Prescription may be defined as the effect of lapse
of time in creating and destroying rights; it is the operation of time as a vestitive
fact. Prescriptions are of two kinds-Positive or acquisitive prescription and
negative or extinctive prescription.

(a) Positive or Acquisitive Prescription

Positive Prescription means the creation of a right by the lapse of time. For
example, right of way is acquired by continued de facto use of it, undisputedly
and openly for a period Prescribed by law. Under Indian Easement Act, this
period is 20 years.

(b) Negative or Extinctive Prescription.

Negative prescription is the destruction of a right by the lapse of

time. Example, the right to sue for non-payment of a debt within a prescribed
period is extinguished after the lapse of that Period. In India, limitation Act
prescribes three years period for extinction of the right.

III) Agreement -

Property may also be acquired by agreement which is enforceable by law.

The owner of a right can transfer his rights in property to another with or
without consideration. if it is for consideration it is called a sale and if it is
without consideration it is called a gift. It is one of the important principles of
law based on the Maxim "Nemo dat quad habet legime', that is no one can
convey a better title than he himself has, as a general rule.

According to Paton, an agreement is an expression by two or more persons

communicated each other to the other of a common intention to affect the legal
relation between them.

An agreement has four essential elements which are as follows -

1) There should be two or more parties to an agreement
2) Mutual consent of the parties
3) It should be communicated;
4) There should be common intention to affect the legal relationship

IV) Inheritance
Another method of acquiring property is by means of inheritance. When
a person dies certain rights survive him and pass on to his heirs and successors.
There are others which die with him. Those rights which survive him are called
heritable or inheritable rights. Those rights which do not survive him are called
uninheritable rights. Proprietary rights are inheritable as they possess value.
Personal rights are not inheritable as they constitute merely his status. However,
there are certain exceptions to the general rule. Personal right may not die in
case of hereditary titles. Proprietary rights maybe unheritable in the case of
lease for the life of lessee only or in case of joint ownership.
Succession of the property of a person may be either tested it or it may be
intestate i.e by means of a will or without a will. If the deceased has made a
will, then succession would take place according to the term to the will. But if
there is not will, then succession will take place by the operation of law which is
known as non-testamentary succession. In case there are no heirs of the
deceased, his property shall go to the State.
Jurists have differed in their views regarding the origin of the property. Many
theories have been put forward to explain the origin of property and give
justification. The following are theories of property
(1) Natural law theory -

Grotius, Pufendorf, Locke and Blackstone are supporters of this Theory.

According to the natural law theory, Property is based on the principle of
natural reason derived from the nature of things. According to Grotius, all
things originally were without an owner and whosoever captured them
or occupied them, became their owners. Locke says: "Every man has a property
in his own person, he has right to preserve his property, that is, his life, liberty
and estate."According to Pufendorf, originally, all things belonged to the people
as a whole.
Criticism -
The natural law theory of property has been criticized by Sir Henry Maine and
Bentham. According to them possession does not give rise to title nor the
property is originated by the first occupation of on ownerless thing but it is a
creation of law. He does not believe in the existence of property without the
existence of the law.
2) The labor theory/ positive theory

The labor theory of property is also sometimes called as the positive

theory. Spencer was propounder of the positive theory. According to this theory,
a thing (res) is the property of a person who produces it or brings it into
existence. However, the labor theory has been criticized by Professor Laski
key on the ground that labor does not produce the property, it is only a means to
earn property. This theory has lost significance in modern times because it has
been shown that there may be many situations when property can be acquired
without labor, for example, property obtained by inheritance or under a will.
3) The Metaphysical theory
The metaphysical theory was propounded by Kant and Hegel. According
to Kant, "A thing is rightfully mine when I am so connected with it that anyone
who uses it without my consent does me an injury." According to Hegel,
"property is the objective manifestation of the personality of an individual. In
other words property in an object on which person has liberty to direct his will."
Kant observed that law of property does not merely seek to protect
possession where there is an actual physical relation between the possessor and
the object, but it goes beyond and considers the personal will of the individual
more important in the concept of the property.
This theory has been criticized on the ground that it is a little concerned
with realities and is based on theoretical assumptions.
4) The historical theory -
The propounder of historical theory is Bentham. Henry Maine was the main
supporter of the historical theory of the origin of property. According to the
historical theory, private property had a slow and steady growth. It has grown
out of the collective group or joint property. There were many stages in the
growth of individual property. The first stage was that of natural possession
which existed independently of the law or state. The second stage was juristic
possession and the last stage of development was that of ownership.
5) The psychological theory
The propounder of this theory is Bentham.. According to this theory, property
came into existence on account of acquisitive tendency of human beings.Every
individual desires to own things and that brings into existance property.
Bentham pointed out that property is altogether a conception of mind. There is
no image, no visible lineament which can portray the relation that constitutes
property. It belongs not to Physics but to metaphysics.
6) The sociological theory -
The sociological theory was propounded by Duiguit, Laski, Karl Marx.
According to the Sociological Theory, property should not be considered in
terms of private rights but should be considered in terms of social functions.
Property is an institution which secures a maximum of interest and satisfies the
maximum of wants.
According to Laski, "property is a social fact like any other and it is the
character of social facts to alter. It has assumed the most varied aspects and it is
capable of yet further changes.
According to Jenks, " The unrestricted right to use, neglect or misuse his
property can no longer be granted to any individual and the right of property
should be made comfortable to rules of equity and reason."
8) The theory that property is the creation of the state
According to this theory; the origin of property is to be traced back to the
origin of law and the state. The supporter of this theory observed that property
and law born together and would die together. In other words, the property
came into existence when the laws were framed by the state.
Rousseau is the main supporter of this theory. He asserted that property was the
creation of the state.
 POSSESSSION AND OWNERSHIP
UNIT 2

According to Salmond, in the whole range of legal theory, there is no

conception more difficult than that of Possession. Possession is the most basic
relation between man and a thing. Possession is an evidence of ownership.

1) Meaning:

"Possession" literary means physical control over a thing or an object. It

expresses the closest relation of fact that can exist between a thing and the
person, who possess it. In law, possession means it includes not only physical
control over a thing but also an intention to exercise that physical control.
Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'. In human life,
consumption of material things is very essential and it would be Impossible
without the position of the material things. Therefore the concept of possession
is of utmost practical importance in human life.

2) Definition:

The concept of possession is though basic and essential in human life,

it is a difficult to define. There is no fixed or precise definition of possession
because it is legal as well as factual concept. Supreme Court in Superintendent
Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that it is
impossible to work out a completely logical and precise definition of Possession
uniformly applicable to all situation in the context of all the statutes.

It is very difficult to define the term Possession. Some Jurists have given
different definitions.

John Salmond:
Salmond defines Possession as, "possession is the continuing
exercise of a claim to the Exclusive use of an object."

Savigny:
 Savigny defines Possession as, "intention coupled with physical
power to exclude others from the use of material object.
Salmond criticized Savingy's definition and ground that Savingy
committed an error by including the element of physical power in his definition.

O.W. Holmes:
Holmes defines Possession as, "To gain Possession a man must stand
in a certain physical relation to the object and to the rest of the world, and must
have certain intent."

Maine:
Maine defines the possession as, "physical detention coupled with
the intention to hold the things detained as one's own.

Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In common speech a

man is said to possess to be in possession of anything of which he has the
apparent control from the use of which he has apparent power for excluding
others."

Ihering:
The best among them is the definition given by Ihiring. According
to him, "whenever a person looked like an owner in relation to a thing, he had
possession of it unless Possession was denied to him by rules of law based on
practical convenience."

3) Elements of Possession

From the above definition we could see in that possession has two
essentials -
1) Actual power over the object possessed. i.e. corpus possessionis and
2) Intention of the possessor to exclude any interference from others. i.e. animus
possidendi.
According to John Salmond, both corpus and animus must be present to
constitute Possession. Ownership is a legal concept whereas Possession is
factual as well as legal concept.
The term CORPUS and the term ANIMUS, both the terms borrowed from the
Roman Law.

4) Categories of Possession: Possession is divided into two categories.

a) Possession in fact and

b) Possession in law.

Possession in fact is actual or physical possession. It is physical relation to

a thing. Possession in law means possession in the eye of law. It means a
possession which is recognized and protected by law. There is sometimes a
discrepancy between possession in fact and position in law, although usually
possession exists both in fact and in law in the same person. A person who is in
de facto possession of a thing also comes to have de jure possession.

6) Modes of acquiring possession:

There are two modes of acquiring possession i) Delivery and ii) Possession.

i) Delivery: Delivery completes voluntary act from one person to another. The
transferor gives actual position to the transferee. It is usually a lawful mode of
possession. Delivery may be actual of constructive. In actual delivery the thing
is physically delivered.

ii) Taking: Taking implies an Act exclusively on the part of the person who
physically takes the Possession. It is acquisition of the Possession without the
consent of previous Possessor. It is the possession without the consent of the
Possessor. Sometimes it is said to be unilateral act. Transferee acquires the
possession without the knowledge or consent of the former Possessor of the
thing. It is usually possessio-civilis. It may or may not be lawful. If it is lawful
then it is legal possession. i.e. possessio-juri.

Transfer or acquisition of possession can be done in three ways, Viz., by

taking, by delivery and by the operation of law.

1) As regards the acquisition or transfer of possession by taking, it is done

without the consent of the previous possessor. This also may be done in two
ways. One is called the rightful taking of possession and the other the wrongful
taking of possession. A shopkeeper is entitled to get some money from a
customer. This is an example of the rightful taking of possession. If a thief
steals from an individual, his acquisition of possession is wrongful. However, if
a person captures a wild animal which does not belong to anybody, possession
is called original.

2) Another way of acquisition of possession is by delivery or traditio in such a

case, a thing is acquired with the contents and cooperation of the previous
possessor, delivery is of two kinds, Viz., Actual and constructive. In the case of
actual delivery immediate possession is given to the transferee. There are two
categories of actual delivery. According to one category, the holder retains
mediate possession and according to the other the holder does not retain mediate
possession. If I lend sell the same, I do not retain any mediate possession.

Constructive delivery is that which is not direct or actual. There are certain
things which cannot actually be Transferred by the owner to the purchaser or by
the transferor to the transferee. In such Cases, constructive delivery alone is
possible. There are three kinds of constructive delivery and those are traditio
brevi manu, Constitution possessorium and attornment in the case of of traditio
brevi manu, possession is surrendered to one who has already immediate
possession. In such a case, it is only the Animus that is transferred as the corpus
of possession already with the transferee. I have already lent a book to
somebody, if I sell the same book to him, it is a case of traditio brevi manu. In
the case of Constitution possessorium it is only the mediate possession that is
transferred and the immediate possession is retained by the transferor. I may sell
my car to somebody but I may retain the physical possession of the same for
some time in spite of the payment of price to me . In such a case, the Animus is
lost and I keep the car on behalf of the purchaser. It is to be observed that in all
cases of constructive delivery, there is a change of Animus alone and corpus of
possession remains where it was before.

3) Transfer of possession can be made by the operation of law as well. This

happens when, as a result of law, possession changes hands. If a person dies, the
possession of his property is transferred to his successor and legal
representatives.
7) kinds of possession:

Kinds of Possession
The institution of property has indispensable relationship with the
mankind. There are two important rights related to property namely i)
ownership and ii) possession.
Possession is an evidence of ownership. It is very difficult conception of
utmost practical importance in legal theory.

Following are the important kinds of possession.

1) Corporeal Possession :
Those things, which are having physical or material existence, wherein direct
relationship with the thing, are possible. for example, House has physical
existence which can be perceived by our senses. The possession in the house
therefore is Corporeal Possession. Therefore corporeal possession is the
possession of material things, movable as well as immovable such as the Car ,
book , pen, wristwatch, etc.
2) Incorporeal Possession :
It means Possession of immaterial or intangible things. These are
the things, which do not have physical existence and therefore cannot be
perceived by our senses. Therefore possession in respect of this thing is known
as incorporeal possession. for example - Copyright, Trademark, Patent,
Goodwill etc.
According to Salmond, corporeal possession is Possession of an
object whereas incorporeal possession is the possession of a right.
3) Mediate Possession :
It is the Possession of a thing through another, either through his
friend, servant for agent. As the thing remains, in possession with another, the
possessor has lesser degree of physical control over such thing.
Illustration :
a) 'X' has a car, which he leaves with his driver. The possession of the driver
will be immediate whereas the Possession of 'X' will be mediate.

b) 'A' purchased a house through his agent and the agent got the possession. A's
possession is said to be the mediate possession.
4) Immediate Possession :

It is also called as Direct Possession. Direct or primary possession

by a person over a particular object, which acquires or gets directly or
personally. In immediate possession, as the thing is in possession of the
possessor directly, he has higher degree of control over such thing. It means that
there is no other person holding the thing.

Illustration :
a) 'X' has a car and he keeps it in his garage, this constitutes immediate
possession.
b) 'A' purchased a house and takes Possession of the property it is called
direct or immediate Possession.
5) Constructive Possession :
Constructive possession is not actual possession it is a possession in
law and not possession in fact. According to Pollock and Wright, it is a
possession which arises only by the construction of law.
Example : The delivery of the keys of a building.
6) Adverse Possession :

It means holding the land on his own behalf of some other person. if
adverse possession continues peaceful and undisturbed for that number of years,
he can claim ownership and the true owner's right( ownership) gets
extinguished.
7) De facto Possession :
De facto Possession exists where the thing is in the immediate
occupancy of a party. The person in de facto possession has the physical control
of the thing to the exclusion of others and has Animus and Corpus over the
material object. De facto possession may be described as actual Possession.
8) De jure Possession :
De jure possession can be described as posssession in law. De jure
possession exists when person claims a thing as his own in natural normal legal
manner by occupying a thing without any dispute as to his legal right to possess
and enjoy the thing. Legal possession may exist with or without property in
possession. In case of De jure possession it is just possible that a man I have
ceased to live in a house but without intending and to abandon it for good as the
owner of the house.
8) Possessory Remedies:
Possessory Remedies are those which exists the protection of
Possession even against ownership. Proprietary remedies are those which are
available for the protection of ownership. 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 it from any person
whatsoever on the ground of his possession. Even the true owner, who retakes
his own, must first restore possession to the wrongdoer and then proceed to
secure a possession on the ground of his ownership.
9) Why law protects possession?
There are many reasons for the protection of possession

The possessor has better title against the whole world, except true owner.
Even if the possession is wrongful, the possessor if deprived of wrongfully, he
is protected by law providing for possessory remedy.

There are many reasons for the protection of possession

1) According to the philosophical School of jurists, possession is protected
because a man by taking possession of an object has brought it within the sphere
of his will. The freedom of the will is the essence of personality and has to be
protected so long as it does not conflict with the universal will which is the
State. As possession involves an extension of personality over the object, it is
protected by law. As the reputation of a person he is protected against
defamatory attack, his possession is protected as he has projected his
Personality over the object possession.

2) Possession is an Evidence of ownership, Section 110 of Indian Evidence

Act 1872- Provides ' when any 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 owner is on the person who affirm that he is not the owner.

3) The possession even if it is wrongful is a good title against the whole

world except the true owner.

4) Possession is protected for the preservation of peace: It is the natural

human Instinct that he does not easily part of with what he possesses. The
interference with the possession leads to violence. Thus the protection is given
to the Possession to aid criminal law and it prevents a breach of peace.
5) Section 145 of CrPC deals with the dispute of immovable property to
provide speedy remedy for the prevention of breaches of peace out of such
dispute. The object of this section is to enable an executive Magistrate to
intervene and pass a temporary order in regard to the possession of the property
in dispute, till the competent civil court determines the right of the parties. The
executive Magistrate shall determine the possession of immovable property on a
particular date and issue an order declaring such party to be entitled to
Possession, thus restore to Possession to the party who was forcibly and
wrongfully dispossessed of.

6) Possession is protected as a part of law of tort. Law protects possession

not only from disturbance by force but from disturbance by fraud. The
protection thus afforded as a part of the law of tort.

7) Section 53a Transfer of Property : Doctrine of part performance which

provides, there is a contract of sale in respect of immovable property where in
transferor by writing, signed by him agrees to transfer such immovable property
and the transferee has taken the Possession of the immovable property and
continuous to be in possession of immovable property and the transferee has
done something in furtherance of such transfer and ready and willing to perform
transfers have done something his part under the contract of transfer, then even
though such contract is required to be registered by any law and not registered
in fact then also the transferor id debarred from claiming any right against such
transferee.

8) Section 47 sale of Goods Act: right of the seller to lien. The seller if unpaid
seller is and if the Possession is still with the seller he can retain the goods.

9) Right of Bailee in contract of bailment: Indian Contract Act 1872,

Section. 170, 171. The Bailee too has a right to lien the goods bailed to unless
he is paid remuneration by Bailor till then he is entitled to keep the position of
the goods.

10) In offence of theft in IPC Section 378: Possession is essential element.

Even though the possession was wrongful and the Possession of such thing is
taken without the consent of the possessor with dishonest intention.

10) Relevant case law:

a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Fact:
In this case the plaintiff was the owner of the land. He gave his land to
defendant Company on lease for the purpose of excavation and erection of gas
works thereon. During the course of excavation one of the man of the
defendants Company found a pre-historic boat buried 6 feet below the surface.

Issue:
Issue before the Court was whether the boat belonged to the landlord or
lessee.

Held:
J. Chitty observed that the landlord was entitled to the boat against the
Company though it was discovered by the Company. It was observed that it was
immaterial that the landlord was not aware of the existence of the boat. He was
in possession of the ground not merely of the surface. Hence everything that lay
beneath the surface down to the center of the earth consequently in possession
of the boat. It did not matter that the plaintiff was not aware of the existence of
the boat.

b) South Staffordshire Waterworks Co. V. Sharman, 1896.

Fact:
In the instant case Plaintiff Company appointed defendant servant to
clean out a pond upon their land and in doing so he found certain gold ring at
the bottom of it. Dispute arose between plaintiff Company and the defendant
servant as to the possession of the gold ring.
Issue:
To whom the Gold ring belong?
Held:
The plaintiff Company was in first possession of the gold ring and is not
the defendant, who acquired no title to them. It was observed that the possession
of land carries with it in general possession of everything which is attached to or
under the land.
11) Conclusion:
Possession is the most basic relation between man and a thing.
Possession is prima facie a proof or an evidence of ownership there is no fixed
or precise definition of possession because it is legal as well factual concept.
The four essentials of possession are subject matter of possession, physical
control, intention and knowledge. Possession is nine points in law and law
provides remedies to person having possession.