Simply, in layman terms, ownership gives the person ‘a whole set of a bundle of rights’, and possession is merely one small part of that bunch of rights. Some scholars defined ownership as:
According to Pollock, “ownership may be described as the entirety of the powers of use and disposed of allowed by law. The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often, there is no such person.
We must look for the person having residue of all such power when we have accounted for every detached and limited portion of it, and he will be the owner even if the immediate power or control and use are elsewhere.”
According to Salmond, “ownership in its widest sense implies, the relation between a person and any right that is vested in him.”
Sir Henry Maine suggests that, historically, the concept of possession is prior to that of ownership. In fact, the right of possession has evolved out the right of ownership.
In terms of the distinction between these 2 concepts, Salmond says, “Possession is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the ‘dejure’ recognition of one.
A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me when my claim to it is maintained by my own self-assertive will.
Ownership is the guarantee of the law; possession is the guarantee of the facts. It is will to have both forms of security if possible, and indeed they normally co-exist.”
The right of ownership is superior and comprehensive and it includes the right of ownership. Generally, ownership and possession coincide and their separation is due to special reasons. They are very akin to each other and are of the same species.
Ownership tends to realize itself into possession and possession tends to become ownership. The one cannot remain divorced from the other for a very long time.
Possession for a long time ripens into ownership (As in the case of adverse possession, though the length of time differs in different jurisdictions, in India it is 12 years) and ownership without possession for a long time is destroyed.
Rights called possession and ownership are attached to two different set of facts. The facts to which the right called possession is attached are “corpus” and “animus”.
The facts to which the right called ownership is attached are possession of “res nullius” or prescription “possession of the object for a prescribed period without the consent of the previous owner”, or conveyance from the previous owner of the object.
Sometimes, rights analogous to those of ownership may be given by the legislature to persons of whom a defined set of facts is true, such as patentee.
The Concept of Possession in India:
Possession, which was a highly technical institution in ancient India, was recognized by the Hindu law as of two kinds, i.e., with the title and without the title.
Possession ‘without title’ was stated to have never created ownership and a person who was in possession of a thing or land without title was considered as a thief.
Yajnavalkya in his smriti, has pointed out that “a man who sees his property being enjoyed by others and does not complain about it; he loses it after twenty years. In case of other properties ownership lapses after ten years by adverse possession.”
Gautam and Narada too agrees with the above statement that in the land a person loses ownership after twenty years and in wealth after ten years.
This clearly shows that concept of ‘adverse possession’ was recognized in ancient India. Consequent to the introduction of the common law in India during the British rule, corpus and animus came to be recognized as essential elements of possession. The Indian law, however, does not accept the distinction between possession and custody.
Section 145, the Code of Criminal Procedure, 1973 and Section 6 of the Specific Relief Act, 1963 are important enactments in the statute books of India which protect possession.
Under section 145, Cr.PC, an executive magistrate is empowered to make enquiry as to which of the parties which of the parties was in possession at the time of his initial order without reference to the merits of their claims and to order that if any person has been dispossessed he should be put back in possession.
Under Section 6 of the Specific Relief Act, if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may by suit within six months recover possession thereof, notwithstanding any other title that may be setup in such suit.
Section 100 of the Indian Evidence Act, also protects the possession of a person in the sense, that it throws the burden of proof to the person who challenges the possession of the possessor on the basis of his title, or otherwise. To recover the possession, the plaintiff must show a better right in himself than is in the defendant.
It needs to be understood that, possession is the real situation, and ownership is the abstract law. If ownership or title of a property is disputed, then the person having possession has a heavy weight on his side.
The person, claiming against the possessor, has to thus fight hard, to reclaim the possession, even if he is the owner of the property. In India, the pendency of civil disputes causes much distress to the parties, and the original parties, normally do not get the relief, rather their heirs get relief after the proceedings of more than 30-40 years.
Hence, One must take every such step to protect possession of his property and to prevent other from dispossessing him, and such step must be taken not with any delay, as its consequences are grave.