Possessory Remedies in the Indian law
– MAHESH BISSA
Final year, LL.B. (hons.),
National Law University, Jodhpur.
Possession: a brief introduction
The term possession expresses the physical relation of control exercised by a person over a thing. Salmond says- “the continuing exercise of a claim, to the exclusive use of a thing, constitutes the possession of it”. Bentham says defining the concept of possession is like defining the geometric conception of roundness. Absolute roundness cannot be defined and so with this concept. Maine defines possession as physical detention coupled with the intention to hold the thing detained as one’s own. Pollock has given a different view on the meaning of possession. He said: “in common speech, a man is said to possess or to be in possession of anything which he has the apparent control, or from the use of which he has the apparent power of excluding others. The Supreme Court has opined in the case of Superintendent v. Remembrance R [1] that “Possession is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical definition of possession uniformly applicable to all situations in context of all statutes.”
Possession is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law. The theory has fallen into the hands of the philosophers, and with them has become a corner-stone of more than one elaborate structure. It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with the a priori doctrines of Kant and Hegel. [2] Those doctrines are worked out in careful correspondence with German views of Roman law. And most of the speculative jurists of Germany, from Savigny to Ihering, have been at once professors of Roman law, and profoundly influenced if not controlled by some form of Kantian or post-Kantian philosophy. Thus everything has combined to give a special bent to German speculation, which deprives it of its claim to universal authority.
Possession can be of various types namely:
1. Immediate possession
2. Mediate possession
3. Representative possession
4. Concurrent possession
5. Derivative possession
6. Adverse possession
7. Duplicate possession
Why possession is protected
Why is possession protected by the law, when the possessor is not also an owner? That is the general problem which has much exercised the minds of jurists. Kant, it is well known, was deeply influenced in his opinions upon ethics and law by the speculations of Rousseau. Kant, Rousseau, and the Massachusetts Bill of Rights agree that all men are born free and equal, and one or the other branch of that declaration has afforded the
answer to the question why possession should be protected from that day to this. Kant and Hegel start from freedom. The freedom of the will, Kant said, is the essence of man. It is an end in itself; it is that which needs no further explanation, which is absolutely to be respected, and which it is the very end and object of all government to realize and affirm. Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. [3] He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts.
There are many reasons for protection of possession:
1. Protection of possession aids the criminal law by pre serving the peace. According to Savigny, the protection of possession is a branch of protection to the person. Possession is protected in order to obviate unlawful acts of violence against the person in possession. Interference with possession inevitably leads to disturbance of peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a court of law. Justice Holmes writes: "Law must found itself on actual facts. It is quite enough therefore for the law that man, by an instinct which he shares with the domestic dog and of which the seal gives the most striking example, will not allow himself to be dispossessed either by force or by fraud, of which he holds, without trying of get it back again. To obviate the violence resulting from this, possession is protected by the law."
According to Ihering, possession is ownership on the defensive. The possessor must be protected and he must not be asked to prove his title. Most of the possessors are the rightful owners and it is desirable that they should be protected. Possession is the evidence of ownership. Possession is patent to all. Possession is the nine points of law and hence protection should be given to possession.
According to Holland: "The predominant motive was probably a regard for the preservation of the peace" ‘The view of Windschield is that protection to possession is given in the same way as protection is given against injuria or the violation of a legal private right
2. Possession is protected as a part of the law of tort. Law protects possession not only from disturbance by force but from disturbance by fraud. The protection thus afforded is a part of the law of tort.
3. 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 is protected against defamatory attack, his possession is protected as he has projected his personality over the object of possession.
Kant says that men are born free and equal. Freedom of will is the essence of man and it must be recognised, respected, protected and realised by all governments. Possession is the embodiment of the will of man. By taking possession of a thing, a person incorporates his will and personality in that thing. Possession is the objective realisation of free will and the will of a person as expressed in possession must be protected. Puchta writes: "The will which wills itself, that is, the recognition of its own persona lity, is to be protected." The view of Gans is that "the will is of itself a substantial thing to be protected and this individual will have only to yield to the higher common will.
4. Possession is protected as a part of the law of property.
Cairns writes:
"Possession was originally protected to aid the Law of Crime and Tort; it came at length lo be protected in order to aid the law of property." (The Social Sciences, p. 65), In the early stages of the development of the law of property when proof of title to property was difficult, it was considered to be unjust to cast on a person whose possession was disturbed the burden of proving a flawless title. Therefore, the law presumed that the possessor was the owner until a superior title was shown to exist in someone else. In this way, possession came to be protected by law.
The view of Salmond is that distinct possessory remedies are not required and the punishments of criminal law and the sanctions of the Law of Tort are sufficient to prevent the evils of violent self-help. [4] An owner who has dispossessed a trespasser need not be required to deliver possession to the trespasser and recover it back in an independent proprietary action. As for assistance rendered to the law of property, the modern law of evidence can adjust the burden of proof suitably and avoid the duplication of proprietary and possessory remedies.
While these considerations are entitled to great weight, expediency requires that possession as such must be protected. In India, a compromise has been made between proprietary and possessory remedies. If the dispossessed owner brings his suit promptly within six months, he is allowed to succeed merely on proof of possession even against the true owner. If he brings his suit beyond that period, he is non-suited if the defendant proves a superior title in himself.
What is a remedy?
The Black’s law dictionary [5] defines remedy as the means of enforcing a right or preventing or redressing a wrong. The Osborne’s law dictionary [6] defines remedy as the means whereby breach of a right is prevented, or redress is given. Legal or judicial means by which a right or privilege is enforced or the violation of a right or privilege is prevented, redressed, or compensated may be called a remedy. [7]
It is the means by which a contractual right or obligation is enforced or the violation of such a right is prevented, reduced or compensated. [8] Remedies may be defined in the contract, by agreement between the parties such as by accord and satisfaction, by arbitration, by operation of law or judicial remedy such as by action or suit. [9] Remedy is a way of repairing harm or damage (also to one's reputation) suffered, or of improving an unsatisfactory situation. [10]
What are Possessory Remedies & Why are they recognized
Possessory remedies are those which exist for 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 possession on the ground of his ownership.
There are many reasons why possessory remedies are recognized [11] –
1. Possession often amounts to evidence of ownership. A finder of goods becomes its owner against the whole world except the true owner. This is on the ground that he is in possession of it. If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the right of the original owner is extinguished
2. The evils of violent self-help are very serious and in all civilised countries, those are prohibited. Experience shows that there can be better conditions in society if the use of force is avoided by the real owners. Lawful methods are always to be preferred and no one should take the law into his own hands.
3. Another reason for possessory remedies is to be found in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient. Every claimant had to undergo many hardships. The position of the plaintiff was a very difficult one and no person was to be allowed to occupy the advantageous position of the defendant. 11 was under these
circumstances that it was provided that the original state of affairs must be restored first. Possession mubt be given to him who had it first and then alone the claims of the various persons could be settled. Under the old legal systems, h was extremely difficult to prove one's ownership and recover the property on the ground of title. Very often, small technicalities resulted in the defeat of one's title to property.
4. Another reason for possessory remedies is that it is always more difficult to prove ownership than to prove possession. Hence it is unjust that a person who has taken possession of property by violence should not be allowed to transfer the heavy burden of proof from his own shoulders to that of his opponent. He who takes a thing by force must restore it and he is free to prove that
he is the owner.
Development of the concepts of possession and possessory remedies in Roman law & Common law
The influence of Courts of Law and of their procedure upon Property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. It is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between Property and Possession -- not, indeed, the distinction itself, which (in the language of an eminent English civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do that thing [12] -- but the extraordinary importance which the distinction has obtained in the philosophy of law. Few educated persons are so little versed in legal literature as not to have heard that the language of the Roman jurisconsults on the subject of Possession long occasioned the greatest possible perplexity, and that the genius of Savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. Possession, in fact, when employed by the Roman lawyers, appears to have contracted a shade of meaning not easily accounted for.
The word, as appears from its etymology; must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. Savigny, following Niebuhr, perceived that for this anomaly there could only be a historical origin. He pointed out that the Patrician burghers of Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old Roman law, mere possessors, but then they were possessors intending to keep their land against all comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in England by the lessees of Church lands. Admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. The association of this claim with the Patrician tenancies, permanently influenced the sense of "possession." [13]
Meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the Possessory Interdicts, summary processes of Roman law which were either expressly devised by the Praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be understood that everybody who possessed property as his own had the power of demanding the Interdicts, and, by a system of highly artificial pleading, the Interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr John Austin pointed out, exactly reproduced itself in English law. [14] Proprietors, domini, began to prefer the simpler forms or speedier course of the Interdict to the lagging and intricate formalities of the Real Action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship.
The liberty conceded to persons who were not true Possessors, but Owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both English and Roman jurisprudence. The Roman law owes to it those subtleties on the subject of Possession which have done so much to discredit it, while English law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual abolition of the English real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction.
Also, the learning of possession disguised itself by its very importance. The Common Law never had any adequate process in the case of land or any process at all in the case of goods, for the vindication or ownership pure and simple. So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that Possession largely usurped not only the substance but the name of Property; and when distinction became necessary in modern times, the clumsy term ‘special property’ was employed to denote the rights of a possessor not being owner.
Some possessory remedies in Indian law
The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. Some of the statutory provisions are being discussed below in this chapter.
Specific relief act, 1963
S. 5 of the SRA deals with action for recovery of possession of specific immovable property based on title. The essence of the section is that whoever proves a better title in a person entitled to possession. The title may be on the basis of ownership or possession. The purpose behind s.5 is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law. S.6 of the same act provides that if any person is disposed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof.
SS. 5 & 6 give alternative remedies and are mutually exclusive. u/s 5 a person dispossessed can get possession on the basis of title whereas u/s 6 a person dispossessed may recover possession merely by proving previous possession and subsequent wrongful dispossession.
Moving further, SS. 7 & 8 of the same act provide for methods for recovery of possession of some specific movable property.
Code of criminal procedure, 1973
s. 145 [15] of the Cr. P. C. lays down the procedure where a dispute concerning land or water is likely to cause breach of peace. Commenting upon the scheme of s. 146, the Supreme Court has observed [16] that the object of the section no doubt is to prevent breach of the peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court.
s. 456 [17] of the same code provides that when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the court may within one month after the due date of conviction, order that possession of the same be restored to that person.
Sale of Goods Act, 1930
s. 47 of the Act provides for sellers’ lien. Lien is the right to retain possession of goods until certain charges due in respect of them are paid. The unpaid seller has the right to retain the goods until he reserves their price. S. 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his possession until payment or tender of the price in following cases –
1. where the goods have been sold without any stipulation as to credit,
2. where the goods have been sold on credit, but the term of credit has expired,
3. where the buyer becomes insolvent.
S. 48 of the same act provides for part delivery. It reads –
“48. Part delivery.—Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien.”
Thus, where an unpaid seller has delivered a part of the goods, he may exercise his lien on the remainder. The party, who alleges that part delivery was intended to operate as delivery of the whole, has to prove that fact. [18]
Indian Contract Act, 1872
s. 168 of the ICA, 1872 provides for the right of finder of goods. It reads:
“168. Right of finder of goods, may sue for specific reward offered.—The finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner; but he may retain the goods against the owner until he receives such compensation; and, where the owner has offered a specific reward for the return of goods lost, the finder may sue for such reward, and may retain the goods until he receives it.
Furthermore, s. 169 of the same Act reads:
169. When finder of thing commonly on sale may sell it. — When a thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses, upon demand, to pay the lawful charges of the finder, the finder may sell it—
(1) when the thing is in danger of perishing or of losing the greater part of its value, or
(2) when the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.
SS. 168 & 169 protect the interest of the finder in 2 ways- s. 168 allows the finder to retain the goods against the owner until he receives compensation for trouble and expense. Further, where the owner has offered a specific reward for the return of the goods lost, the finder may sue for such reward, and may retain the goods until he receive it.
S. 169 allows the finder to sell the goods in certain circumstances. Where the thing found is commonly the subject of sale and if the owner cannot be found with reasonable diligence, or if he refuses to pay the lawful charges of the finder, the finder may sell the goods in the following cases:
1. when the thing is in danger of perishing or of losing greater part of its value,
2. or when the lawful charges of the finder, in respect of te thing found, amount to 2/3 of its value.
For it has been held that, if a stick of timber comes ashore on a man's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it.
Adverse Possession
Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time. Through this, one may acquire property without the consent of the actual title holder if one possesses it long enough and meet the legal requirements. Adverse possession is one kind of involuntary transfer of ownership rights in real property. [19] Under the doctrine of adverse possession, the true owner of a piece of real property cannot bring an action to eject someone who has actually possessed the property for a certain period of time.
Possessory Remedies and Doctrine of Jus Tertii
Possessory remedies have been rejected by English law but other provisions have been made to protect possession. There are three rules in this connection. Prior possession is prima facie proof of title. He who is in possession first in time has a better title than the one who has no possession. A defendant is always at liberty to rebut that presumption by proving that he has a better title. A defendant who has violated the possession of the plaintiff is not allowed to set up the defence of jus tertii which means that he cannot plead that though neither the plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. This defence is not valid under English law as prior possession is always a prima facie proof of title. Though the title of a third person is not a good defence, English law considers jus tertii as a good defence under the following circumstances:
1. When the defendant defends the action on behalf of and by the authority of true owner,
2. When he committed the act complained of by the authority of the true owner,
3. When he has already made satisfaction to the true owner by returning the property to him.
Bibliography
Books
1. PJ Fitzgerald, Salmond on Jurisprudence, (New Delhi: Universal Law Publications, 2002)
2. VM Shukla, Legal Remedies, (Lucknow: Eastern Book Co., 1998)
3. VD Mahajan, Jurisprudence & Legal Theory, (Lucknow: Eastern Book Co, 2003)
4. Krishna Swamy, Law of Adverse Possession , 13th Edn. 2002
Cases
1. Superintendent v. Remembrance R, AIR 1980 SC 52
2. RH Bhutani v MF Desai, AIR 1968 SC 1444
3. Ex.P. Cooper, (1879) 11 Ch. D. 68 CA
Statutes
1. Specific relief act, 1963
2. Code of criminal procedure, 1973
3. Sale of Goods Act, 1930
4. Indian Contract Act, 1872
Websites
1. www.4lawschool.com/lib/commonlaw5.htm -
2. ww.ancientworlds.net/aw/Post/377646
3. www.neplaw.com/faq
4. www.freelegalforms.net/index. cfm?index=forms&filename=Form16402
5. caselaw.findlaw.com/scripts/getcase. pl?court=ok&vol=/supreme
6. www.americanoutlook.org/index
7. www.vakilno1.com/bareacts/indiancontractact/s168.html
8. www.saarclawnet.com/saarclawnet/
9. www.netlawman.com
Dictionaries
1. Osborne’ law dictionary
2. Black’s law dictionary
[1] AIR 1980 SC 52
[2] www.neplaw.com/faq
[3] VD Mahajan, Jurisprudence & Legal Theory, (Lucknow: Eastern Book Co, 2003)
[4] PJ Fitzgerald, Salmond on Jurisprudence, (New Delhi: Universal Law Publications, 2002)
[5] Black’ law dictionary
[6] Osborne’s law dictionary
[7] www.brainydictionary.com/words/re/remedy
[8] www.dictionary.net/remedy
[9] www.wordreference.com/definition/remedy
[10] www.freesearch.co.uk/dictionary/remedy
[11] VD Mahajan, Jurisprudence & Legal Theory, (Lucknow: Eastern Book Co, 2003)
[12] ww.ancientworlds.net/aw/Post/377646
[13] www.saarclawnet.com/saarclawnet
[14] www.netlawman.com
[15] 145. Procedure where dispute concerning land or water is likely to cause breach of peace.—(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
[16] RH Bhutani v MF Desai, AIR 1968 SC 1444
[17] 456. Power to restore possession of immovable property.—(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property:
Provided that no such order shall be made by the Court more than one month after the date of the conviction.
[18] Ex.P. Cooper, (1879) 11 Ch. D. 68 CA, cited from, VM Shukla, Legal Remedies, (Lucknow: Eastern Book Co., 1998
[19] Krishna Swamy, Law of Adverse Possession , 13th Edn. 2002
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