may be lawful, it may be unlawful. It may be legal or illegal. The acquisition
of legal possession would obviously be lawful and would of necessity involve
the occurrence of some event recognized by law whereby the subject matter falls
under the control of the possessor. But a problem arises where the duration for
which possession is recognized is limited by the grantor or the law.
Continuance of possession beyond the period specified by the grantor or recognized
by law is not treated as a lawful possession. For example, a tenant acquires
legal as well as lawful possession of the tenanted premises from the landlord
with the express consent of the landlord but limited to the duration of the lease.
On expiry of the leaser, if the landlord does not consent to the lease being
continued, the possession of such tenant would not be a lawful possession. The
nature of possession being not lawful would entitle the landlord to regain
From a common sense point of view,
lawful possession must be the state of being a possessor in the eyes of law.
The possession must be warranted or authorized by law; having the qualifications
prescribed by law and not contrary to nor forbidden by law. Sawwad Ali v. Rajesh Kumar, 2019 (135) ALR 927.
Corpus Possession means that there exists such physical contact of the thing by the possessor as to give rise to the reasonable assumption that other person will not interfere with it. Existence of corpus broadly depends on (1) upon the nature of the thing itself, and the probability that others will refrain from interfering with the enjoyment of it; (2) possession of real property, i.e., when a man sets foot over the threshold of a house, or crosses the boundary line of his estate, provided that there exist no factors negativing his control, for example the continuance in occupation of one who denies his right; and (3) acquisition of physical control over the objects it encloses. Corpus, therefore, depends more upon the general expectations that others will not interfere with an individual control over a thing, then upon the physical capacity of an individual to exclude others.
The animus possidendi is the conscious intention of an individual to exclude others from the control of an object.
There is also a concept of “constructive possession” which is depicted by a symbolic act. It has been narrated with an illustration that delivery of keys of a building may give right to constructive possession of all the contents to the transferee of the key.
A person other than the owner, if continued to have possession of immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallize in ownership after the expiry of the prescribed period of limitation, if the real owner has not taken any action for reentry and he shall be denuded of his title to the property in law. “Permissible Possession” shall not mature a title since it cannot be treated to be an “adverse possession”. Such possession for however length of time be continued, shall not either be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession. Bhikhari v. D.D.C., 2018 (141) RD 130.
‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are: (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Nagabhushanammal v. C. Chandikeswaralingam, 2016 (3) AWC 2721.