Possession In Fact And Possession In Law

In this article, we will explore Possession In Fact And Possession In Law in detail.

In legal terms, possession can be classified into two main types: possession in law (juridical possession) and possession in fact (de facto possession). But before understanding this, let’s first understand the concept of possession.

At its core, possession refers to having control, ownership, or custody of something, whether it be a physical object, a piece of land, or even an idea.

Meaning

“Possession” literally means physical control over a thing or an object. It expresses the closest relation of fact that can exist between a thing and the person who possesses it. 

In law, possession means it includes not only physical control over a thing but also an intention to exercise that physical control. For Example, A has a pen in his hand. In other words, he is in possession of that pen or  a person holding a pen in their hand has actual possession of the pen.

In short Possession in fact refers to the physical control of an object or property, regardless of legal ownership and Possession in law is the legal recognition of possession, even without direct physical control.

1. Possession in fact

Possession in fact is also known as de facto possession, possession in fact indicates physical control over a person or over a thing. In simple words, Possession in fact is actual or physical possession.

Example: 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 the parrot escapes from the cage or sets free, he would lose possession over it.

Therefore possession in fact means actual control over a thing.

Some crucial points about possession in fact:-

• There are certain things over which a person can’t have physical control for example sun,moon stars etc.

• The physical control over the object need not be continuous. For instance I possess my coat when I am wearing it, but 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 the normal course whenever I so desire. In other words, physical control may continue even if a person relinquishes actual control temporarily.

• In order to constitute possession in fact, merely having physical control of a thing is not enough but it must be accompanied by the capacity to exclude others from the possession of it. However, some jurists did not consider this element necessary for possession.

2. Possession in law

Possession in law is also known as De Jure possession and in roman language, it is read as possession civilic. Where possession in fact is actual possession, possession in law is relative possession.

Possession in law (de jure possession) refers to possession that is legally recognized, even if the person does not have physical control over the object or property. Unlike possession in fact, possession in law is backed by legal rights and protections.

Possession in law means possession in the eye of law. Laws protect individuals with legal possession, allowing them to reclaim physical possession if someone wrongfully takes or uses the property. 

There are many citations when a person does not have possession in law although he is an actual possession of the object.

Example: A landlord who owns a house but has rented it out to a tenant still has possession in law of the property, even though the tenant has possession in fact by physically living there.

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