The terms of Property Possession and trespasser

The well known and popular dictum that “possession is nine points in law” clearly amplifies the very essence and importance of “possession” in property transactions. The term “possession” has not been specifically defined in any of the laws and enactments dealing with contracts and properties. The meaning of the word in law lexicon is as follows:

“Possession” is a detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name.

The term deals with a specific legal concept, right and interest in immovable property and consists of following categories:

“Absolute Possession” of an absolute owner of an immovable property which permits the owner the total control, domain, use, occupation and enjoyment of the property to the complete exclusion of all others. It is unrestricted in the point of user and unlimited in the point of duration.

Constructive

The possession in this regard can be physical and actual or it can be “constructive”. The actual physical possession shall include the type of possession by which the immovable property is capable of being held.

When an immovable property is in possession of some other person for and on behalf of the owner, or held for the benefit of and in trust for the absolute owner, it is called as “Constructive Possession”. Such “Constructive Possession” is equally total and comprehensive for an absolute owner in the same manner as the physical and actual possession of the property.

The “possession” held by a lessee under a lease of an immovable property is restricted in respect of its duration and also relating to the manner and mode of its use and occupation, by the terms of the lease.

Similarly, the “possession” held by a mortgagee under a mortgage of an immovable property is restricted in terms of its use, occupancy and duration by the terms of the mortgage.

In the case of a “licence” granted by an owner of an immovable property in favour of another person i.e., the licensee, the latter is only permitted to carry out certain acts, deeds and things on the owner’s immovable property. In such a case, the legal and physical possession is with the owner only.

Though a ‘licence’ is also defined as permissive possession, it is the owner who is in possession and the licensee is only permitted by the owner to enter upon the immovable property of the owner for the purposes of carrying out certain acts, deeds and things therein.

The “possession” referred to in Section 53-A of the Transfer of Property Act, 1882, is totally of a different character altogether. In this case, there is a written agreement to sell an immovable property between the owner and the intended buyer and in pursuance of such written agreement, the owner puts the intended buyer in possession of the immovable property in and as part performance of the agreement to sell.

Equitable title

Such possession provides what is known as “equitable title” to the property in the hands of the intending buyer. In other words, in this situation, the seller or any person claiming any right through the seller over the immovable property sought to be sold are legally forced to complete the sale in favour of the intending purchaser and they do not have any right to avoid the same in any manner whatsoever.

When a person occupies the immovable property of another person without any legal right to be in possession of the same, such other person is only a “trespasser”. Such a trespasser has to be evicted only through proper legal process.

In this regard, attention is to be drawn to the provisions of Section 145 of the Criminal Procedure Code, 1973. This section provides that any person, in possession of an immovable property whether legally or even as a trespasser, can approach a magistrate of competent jurisdiction and plead that there is bound to be disturbance of peace if his possession is disturbed and obtain an order that his possession should not be physically disturbed by any other person.

This is a valuable right in the hands of a person with a legitimate legal right to possession. However, in the hands of “trespasser”, this right can be misused and it can be prevented only through the setting aside of such an order by higher courts of law.

( Courtesy :  The Hindu )

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