Jurisprudence on the Right of Ownership and Possession

Introduction

The concept of ownership and possession is one of the fundamental juristic concepts common to all systems of law. This concept of ownership has been discussed by most of the writers before that of possession. However, it is not the right method. The idea of possession came first in the minds of people and it was later on that the idea of ownership came into existence. The idea of ownership and possession developed with the development of the civilization in the world. When people are going from one place to other place so on that time they don’t have this concept but when they stay in one place and live in the group, plants tree, cultivate land, use land for production and live in the community so the concert of ownership and possession came. According to some person the development of agriculture economy developed the idea of ownership but first the concept of possession came in the mind of the people then they think about the concept of ownership and developed the mechanism for ownership of the things.

The concept of ownership was very old in all common law system all jurist discus the concept of possession and ownership and give their view on that point. The disputes arise that which concert came first? Ownership or possession. According to historical school of jurisprudence the concert of possession came first and then after ownership come into existence, means the idea of ownership followed the idea of possession. Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In Roman law ownership and possession were respectively termed as ‘dominium’ and ‘possessio’. The term dominium denotes absolute right to a thing while possessio implied only physical control over it. In Roman law people gave more importance to ownership because in their opinion it is more important to have absolute right over a thing than to have physical control over it and same concept we are adopting in today’s world when the ownership of a goods is more important the possession because possession can shifted for one to other but ownership remain the hand of the same person because change the ownership of goods take some legal formalities and it’s a difficult task in present era. Concept of ownership- The definition of ownership is expended by two jurist Austin and Salmon. According to one view, ownership is a relation which subsists between a person and a thing which is the object of ownership and other view said that ownership is a relation between a person and a right that is vested in him. Austin in his view said that ownership is “A right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.”

He consider right to property as Right to rem which claim against the whole world. Austin when defining the concept of ownership has focused on the three main attributes, namely, indefinite user, unrestricted disposition and unlimited time of duration. In Crowhurst V. Amersham Burial Board[1] the court find the Amershan Burial board is liable and said that they are responsible for damage and they will pay the price of horse which died on account of eating a portion of tree planted by the Burail Board on its own land and around 4 feet from the boundary. Austin definition of ownership has been followed by Holland and he defined it as plenary control over an object. According to Holland an owner has three rights on the subjected owned:

1. Possession
2. Enjoyment
3. Disposition

Keeton in his view said that “the right of ownership is a conception clearly easy to understand but difficult to define with exactitude.”

Ownership under Hindu law- According to Ancient Hindu law concept, jurist said much about the means of acquiring ownership. Manu declared that there are seven virtuous means of acquisition of wealth viz. inheritance, gain, purchase, conquest, application, employment of the work and of and acceptance of gifts from proper persons. Gautama gives almost the same seven ways of acquiring ownership but he puts some modification to the list given by Manu. Rights in ownership- The rights of ownership is the most complete or supreme right that can be exercised over anything. It consists of four Rights[2]

1. Using the things- ownership give the right to person to use the goods or things according to their will but each right have certain restriction so in this case if any person using their right of ownership it will on harm to others.
2. Excluding others for using it- the owner of a goods have right to exclude others to use the things because the person is the sole owner of the thing and have batter title on the goods so he can authority to act to use his right.
3. Disposing of the things- the owner of the things have rights to dispose the goods according to their will and he can use the thing according to his will and also dispose the goods but it cannot harm others.
4. Destroying it- the person who is the owner of the goods have batter title of the goods and he can destroy it but question will arise that if any person have the ownership of the property how the can destroy it with affecting other and right.

Some other thing is important for the ownership of the goods and it also consider under the rights and these are-

• The owner has the right to consume it.
• The owner has the right to alienate it.
• The owner has the right to transfer it.
• Ownership is for unlimited time of duration.

In the concept of ownership the principle of nemo dat quod non[3]- habit will apply and it said that “no person can give a better title than which he himself has.” Concept of Possession- The theory of possession of John Locke is quite popular in studying possession. Locke advocates possession by saying that when a person mixes his labor with any object then he establishes ownership rights over such objects. This theory is easy to understand but it has some discrepancies. Firstly, prior to the following theory of ownership, it was not obvious that when labor is mixed with any object, the object is said to be owned by the person mixing the labor with it. Secondly, the labor performed on any such property, does not necessarily determine the rights of the owner in that particular case. A chimney sweeps who finds a ring may not be the owner of the ring, but his possessory right allows him to recover to the value of the stone set in the ring from a jeweler who refuses to return it after it is handed to him for examination.[4] Possession’ is define as- the action or fact of possessing something or of being possessed.

Depending on the context, the lexicographer maybe found to give meanings such as the following: the holding of something as one’s own: actual occupancy as distinguished from ownership; a territory subject to a sovereign ruler or state; the fact of being possessed by a demon; the action of an idea or feeling possessing a person; the action of keeping oneself under control- as in self-possession.[5] According to many jurist “Possession is the prima facie evidence of ownership, transfer of possession is one of the thing for modes of transferring ownership.” But this definition is not true in every sense because some time people or the owner of the things is only intended to transfer the possession only but when we take it as the step of transferring the ownership so it is wrong because for transferring the goods intention is require and in this case person is not intended to transfer the possession and he is only intended to giving the possession to other. The individual must necessarily have an intention to possess that object. An individual is also said to be in possession of some property but it doesn't imply ownership.

Like ownership, the possession of things is often regulated and governed by states under the Property Law. Different meaning of the possession is given depending upon context and use. Savigny maintained that distinction between detention and possession follows from a proper analysis of the latter concept and built his doctrine on Paul’s text, ‘apiscimur possessionem corpore et animo, neque per se animo but per se corpore’.[6] The classical theory of jurisprudence talks about the elements which is necessary for the possession of the thing and according to this theory possession is made up of two elements: firstly the corpus or element of physical control, secondly the animus or intent with which such control is exercised. Some jurist said that possession without ownership may have the utmost practical importance. Possession may create ownership, either by oeeupatio (the taking control of a res mulli-is) or by the expiration of a period of acquisitive prescription. More cover, possession is prima facie evidence of ownership, and he who would disturb a possessor must show either title or a better possessory right.

Division of possession- Possession is divided into two categories 1. Possession in Fact. 2. Possession in law. Possession in facts means the person have actual or physical possession over a goods. It is a physical relation of a thing. Possession in law means possession in the eyes of law it means possession which is authorized and protected by law. In most of the cases both possession in fact and law are in the hand of the same person. But the dispute will arise when one person have factual possession and other have lawful possession over a goods. Ex. If a servant holds certain things in his custody on behalf of the master, he has the actual possession of the thing but in eyes of the de jure possession is in the hand of the master.

In the case of The Privy Council in Perry vs. Clissold[7] “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner and if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.” Nair Service Society Ltd. vs. K.C. Alexander[8] A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in the case of The Privy Council in Perry vs. Clissold and may be taken to be declaratory of the law in India.”

Rights in Possession

Effective control over goods- the possessor of the goods have control of the goods and no person can claim for his using of the goods because he have batter title on goods than others. In Bridges v. Hawkesworth[9] , a person found banknotes in a shop. The shopkeeper alleged that the person has committed theft. The bank notes were found in a shop that was a public place and it was decided that the bank notes are said to be in possession of the finder. Again, the judgment was widely criticized by many jurists because jurist said that the bank notes is find in public place and the person get the bank note have effective control over it and have possession of goods.

Right to enjoy- the possessor of goods have right to enjoy his possession over goods and other cannot restricted him to use it except law give the power to others. Ex- if owner of tenant give the possession of the tenant to his servant, servant have right to enjoy the possession of the tenant.

Right to use it and restricted other to use it- possessor of the property have right to use of it according to the guidance of the owner and if there is not guidance so use it in the way that it will not harm to other and restrict other to use or destroy it. Ex. If the owner of the goods give the possession to his servant so the servant use it according to his will and restrict others to use it.

Intention to possess- the possessor of the property have some intention to possess the property and if he have no intention to possess it he cannot claim possession over the property.

Right to possess but other person have batter title so give it- the possessor of the property can use and enjoy the property but when other person can claim over the property and he proof batter title over it so he can leave his possession on the property. Distinction between Rights in ownership and possession- "Ownership" is a bundle of rights and obligations. These include the right to sell the ownership, or to divide the ownership or to prevent others from intruding upon the ownership, including possession. "Possession" is a physical control of some property that may or may not be owned by the person in possession at that moment. Sometimes possession can mature into ownership by the intentional abandonment of the ownership by the previous owner. However, possession by anyone other than the owner can typically be terminated at the discretion of the owner. For example, when you rent an apartment you have possession of the space within the rental and various related rights to come and go, park in the lot, etc. If the owner of the apartment wants to reclaim possession from you, there are legal procedures (eviction) for doing so. If the owner wants to prevent a criminal from entering your apartment, they may also have the right (if not obligation) to protect your possession, by using the laws of trespass against anyone not authorized to be in possession of your apartment or anything inside your apartment.

Some landlords are unclear on this concept and falsely believe they can still enter a rented apartment because "the own it", when the law would actually require them to stay out during the period in which they have granted the exclusive license of possession to you (i.e., a rental contract). Conclusion- Ownership and possession both are very debatable topic on the time of its origin and right given under both the topic is very debatable between the jurists of many countries. Henry Gorge in his view said that for private ownership of land as essential for social order and progress. George believed that under his proposed reform the private ownership of land would be replaced by private possession and his view is supported by Marxist theory of ownership and according to his theory no individual is the owner of certain things and something will be collectively enjoyed by the person o the can develop with the use of these thing. Karl Renner follow the Marxist analysis and talk about public character of ownership by amending the present law and with more importance to public law.

Many jurist support the theory and said that “Possession is the objective realization of ownership. It is the external significance of ownership.”[10] Any if it is commonly enjoy by the people they will not poor in future and develop with the common possession of the goods. Government is unable to define the right in ownership and possession for every person and with the conversion of the land from public ownership to private ownership are creating many problem between the people and with the private ownership the poor become more poor and they are not enjoying their rights because government are restricted their rights of ownership and possession. So according to the present condition and changing in the situation government can change the law on ownership and possession and give the benefit to other who don’t have the property to claim ownership and possession.

Books-

• Dr. V.D.Mahajan, Jurispudence and legal theory (5th edn, 2011)
• Dr.N.V.Paranjape, Jurisprudence and legal theory (6th edn, 2011)

Articles-

• “Possession as the Origin of Property”, Carol M. Rose, Yale Law School, The University of Chicago Law Review.
• “Ownership and Possession in the Early Common Law”,Joshua C. Tate,The American Journal of Legal History.
• Rights of Ownership or Rights of Use? - The Need for a New CLynton K. Caldwell, onceptual Basis for Land Use Policy, Lynton K. Caldwell, William and Mary Law Review
• Common Property and Common Poverty, Chhatrapati Singh, India’s Forests- Forest Dwellers and the law, OUP.New Delhi.

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[1] (1878), 4 Ex.D.5 [2] N. K. Jayakumar, Lecture on Jurisprudence,PP.217-218, Lexisnexis Butterworths (2006) [3] Quoted in N.D.Mahajan, Jurisprudence and Legal theory PP.367 [4] Armory v. Delamirle (1721). [5] The Shorter Oxford English Dictionary (3rd dc.) vol. Ii, 1550. [6] Pollock and Wright, posssession,83 [7] (1907) AC 73, at 79 [8] AIR 1968 SC 1165 [9] Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75, 15 Jur. 1079. [10] Henry George's Land Reform: The Distinction between Private Ownership and public possession. By JOHN PULLEN

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