Possession in Law and Possession in Fact

Possession in law and Possession in Fact

Meaning of the term “possession” Pollock says that ‘having physical control over a thing constituted possession’.

The possession of a material object is the continuing exercise of a claim to the exclusive use of it. Thus position involved two things :
1) Claim of exclusive user
2) Conscious or actual exercise of this claim that is physical control over it

Possession in fact:

The relation between a person and a thing which he possesses is called possession in fact or de facto possession. It indicates physical control of a person over a thing. For instance if a person has caged a parrot, he would be deemed to have possession of it so long as the parrot is in the cage but as soon as the parrot escapes from the cage or set free he would lose possession over it.

Certain points regarding possession in fact must be carefully noted they are:
1) There are certain things over which a person cannot have physical control, example Sun, moon, stars etc.
2) The physical control over the object need not be continuous. For instance I possesses my court when I am wearing it, I still have possession of it when I take it off and hang it on a peg when I go to sleep. The basic idea is that I should be in a position to resume control over it in normal course whenever I so desire. In other words, physical control may continue even if a person relinquishes actual control temporarily.
3) In order to constitute possession in fact, mearly having physical control of a thing is not enough but it must be accompanied by capacity to exclude other from the possession of it. However, some jurist not considered this element necessary for possession.


4) In order to determine the question of acquisition, abandonment or termination of possession, this distinctive feature is the basic desire of the person whether he desire to retain possession or not.

Possession in law

Possession in law is also termed as ‘de jure’ possession it has already been stated that law protect possession for two obvious reason namely ;
I) By confirming certain legal right on the possessor;
II) By analysing the person who interfere with the possession of a person or by making him pay damages to the possessor.

Whenever a person bring a suit for possession the first thing that the court ascertain is whether the plaintiff was formerly in real position of the thing is dispute. It is true that in most of the cases actual or factual position testifies legal position yet there are many situation when a person does not have position in law although he is in actual position of the object.

In the legal sense, possession is used as a relative term. The law is generally not concerned with the question as to what has the legal best title, but it is considered as to which of the parties before it has a better title. A few decided case may be cited to illustrate this point further:-

R.v.Riley.(1853) (Lamb case): In this case where the accused was driving his herd of sheep, some of the prosecutors sheep join the herd and were driven away by the accused along with his own. This mistake came to his notice after he has sold the entire flock of sheep. The accused was held to have taken possession of the sheep which belong to the prosecutor and which he unknowingly drove with his own flock to the market.



Boynton-wood v/s. Trueman (1961) 177 Estates Gazette 191 : It was held that handing over of the key to the landlord to carry out repair was not surrender of possession. Similarly the possession of a key to a room in a house was held not to give exclusive possession amounting to sub tenancy.

Elwas V/s. Brigg Gas Co. (1886) 33 CH D 562. : The defendant company took the land of the plaintiff for erecting a gas plant. When the evacuation work was on, the defendant lesse company discovered the prehistoric boat six feet below the surface of the land. The Court held the lessor had the first possession of the boat and not the lessee.

Salmond observes that possession is sometime possible even without the knowledge of the subject matter and sometimes knowledge is a necessary requirement for possession. He explain this by a hypothetical illustration. If A momentarily hand over his wallet to B, from whom it is stolen by C, who then lost it on D’s property, where it is found by E, the question who has the right to possess or who as a legal possession will depend on who bring action against whom.

As against all subsequent parties E’s title will prevail because finder acquires a good title. In an action between D and E, however, it would seem that D will have a better title if he could prove that the article was found on property from which he had a general intention to exclude others.


As against C, neither D nor E would be said by law to have possession since C has a good right against all except the true owner. In an action by C against D & E, the latter would not be allowed to plead jus tertii, that is, they cannot argue that the wallet belong to someone other than C and therefore, should not succeed against D and E. To allow this, would be to allow anyone who could prove a defect in a possessors title to disposses him of his goods. The plea of jus tertii, is allowed only to the True owner and/ or his the agent.

Obviously as against your A or B, C will have no defence. B would recover the wallet because he had actual possession of it. A could recover it from C because although it was in B’s hand, he (i.e.,A) had an immediate right to possess. Therefore, A or B whosoever bring action against C, will be deemed to have legal possession of the wallet as against ”.

It would therefore, be seen that in common law possession is a relative matter. The law is not normally concerned with the question which of the parties before the court has a best right to possess; it is concerned with the question as to which of the parties had a better right to possess.

For the persual of foregoing cases it can be inferred that possession in law has been differently interpret depending on the circumstances of the case. In short it can be said that possession may either by possession in fact or possession in law. In Roman Law possession in fact is called possessio naturalis and possession in law is known as possessio civilis. In case of possession in law de facto possession is not necessary. In fact it is a right with recognise and protected by law.


According to Salmond, there may be three possibilities regarding possession in fact and possession in law;

1) Generally, in most cases both factual and legal possession exist together.
2) In certain cases a person has legal possession of a thing but possession in fact is with someone else. For example in case of possession by the servant of his masters property, though the servant has a real and factual possession over it, but the legal possession is still that of the master. Likewise, in case of the bailment, though bailee has the real possession of the good bailed but the legal position is that of the Bailor.
3) English Law also accepts the concept of constructive possession in cases where something less than possession in one person is deemed possession in law, and conversely where the actual possession of some other party is reduced to something less than legal possession. For example, if A wrongful it takes possession of B’s watch the law shall still afford its possessory remedies to B on the ground that he did originally have the possession and therefore, he ought to have possession even now.

The fact that the law regards as possessors only those who are actually in possession need not provide protection to those who though not in possession, ought to have been in possession.

Author: vivek khandelwal,
Amity University Rajasthan, 2nd Year/ BBA.LLB(Hons.)

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