PROCEDURE FOR RECOVERY OF IMMEDIATE POSSESSION

Advertisements

Spread the love

Post Views: 714

This Article is written by Anju Malik of Department of law, Bhagat Phool Singh Mahila Vishwavidyalya Khanpur Kalan, an intern under Legal Vidhiya.

ABSTRACT

“If you must be careless with your possessions, let it be in connection with material things”.

With the advancement of humanity, the idea of possession has expanded progressively. In this course, the concept of ownership was introduced. As civilization developed, individuals became aware that they owned particular goods. The struggle for survival was not an easy undertaking, therefore people started to assume ownership of particular items and took pride in them by defending them against intruders. To the exclusion of everyone else, they continuously exercised control. The idea of possession eventually grew from its modest beginnings, and significant progress has been made in this area. The term “possession” is ambiguous and can mean different things in different contexts. It is challenging to determine and formulate an exact definition of “possession” that applies to all situations and is consistent with all statutes. The “word” that fits in the definition clause of, estimate it, and several conjectures have been made about it are the most difficult and complicated to define. In this paper we will examine the concept of possession and it’s procedure for recovery under Rajasthan Rent Control Act 2001 [ Amended by the act of 2017] in detail.

KEYWORDS

Possession, Immediate Possession, Indian Laws, Rajasthan Rent Control Act , Possessory remedies

INTRODUCTION

“Possession” is a diverse concept that can mean different things in different contexts. It is challenging to determine and formulate a completely precise and consistent definition of “possession” that is applicable to all scenarios with pertains to all statutes. The “word” that fits in the defining clause is the most difficult to define, estimate, and different assumptions have been made about it. No prejudicial meaning of “possession” has been sought by the courts in their decisions. The origination is now quite unclear as a result of this. As a result, the concept of “possession” is one that has attracted tremendous intellectual attention. It has the highest level of pragmatic significance in the interim. Therefore, taking ownership of the property is more simpler than defining “possession” in legal terms.

ORIGIN OF WORD “POSSESSION” AND IT’S DEFINITION.

To understand the idea, we should first understand the word’s historical context, or the significance of the word in its origin and history.

POLLOCK says that having physical power over a thing which establishes possession.
SALMOND said that “the possession of a material item is the proceeding with the exercise of a case to its select utilization”. This possession consists of two items.
The assertion of a chosen customer and the conscious or real exercise of this promise, such as physical control over it.
The first is a psychological component known as “animus possession,” and the second is a physical component known as the “corpus possidendi ”.
SAVIGNY’S : possession hypothesis, the physical severity of rejection contains the essence of physical possession. The first is “corpus,” which is the physical capacity to cause anything to materialize out of thin air.
MAINE : Possession, is defined as “physical confinement combined with the goal to hold the thing kept as one’s own.”
Q.W. HOLMES: The definition of possession according to Holmes is “To gain Possession a man must stand in a certain physical relation to the object and to the rest of the world, and must have certain intent.”

ELEMENTS OF POSSESSION

According to the definition given above, a possession must have two things:

(1)Actual control over the possession, also known as corpus possession’s.

(2)The possessor’s desire to keep outside influence to a minimum. For example, animus possidendi.

John Salmond asserts that possession requires the presence of both corpus and animus. Possession is a factual and legal idea, whereas ownership is a legal term. Both the phrase CORPUS and the term ANIMUS were taken from Roman law.

MODES OF ACQUIRING POSSESSION.

There are three modes of acquiring possession:

Delivery
Taking
Operation of Law
DELIVERY

Delivery concludes a free act performed by one individual for another. The transferor assigns the transferee their actual position. Usually, it is a legal way to possess something. Delivery may be constructive or actual. The item is physically delivered during actual delivery.

TAKING

Only the person who physically takes the Possession is implied to have performed an Act. Without the prior possessor’s permission, the possession was acquired. It is the possession of something without the owner’s permission. It is sometimes described as a unilateral act. Without the prior possessor’s knowledge or permission, the transferee gains possession of the item. Typically, possessio-civilis applies. It might or might not be legal. Possession is legal if it is permissible. That is, possessio juri.

OPERATION OF LAW

By way of legal procedure is the third way that possession can be obtained. It occurs when property is transferred from one person’s ownership to another by operation of law. For instance, a person’s personal representatives inherit his possessions when he passes away.

TYPES OF POSSESSION

Possession refers to having actual physical control over something. Although there is no clear definition of possession in law, it might be challenging to define the idea of possession. It is both a factual and legal idea. However, we can define it as having physical possession, control, or occupation of any object with the goal of being the owner. Let’s now discuss types of possession in detail.

Corporeal Possession
Mediate Possession
Immediate Possession
Constructive Possession
De facto Possession
De jure Possession

(1)CORPOREAL POSSESSION

[3]Corporeal possession is the ownership of things that can be perceived by our senses as having a physical or materialistic embodiment. As a result, it is the continued assertion of a right to utilize material or tangible goods. House, a car, a bicycle, a pen, etc.

(2)INCORPOREAL POSSESSION

Incorporeal objects are those that lack a physical or materialistic expression and are invisible to our senses. As a result, it is the continued assertion of a right to utilize immaterial or intangible goods. Examples include trademarks, goodwill, patents, and copyrights.

(3)MEDIATE POSSESSION

Possession of an object through a middleman (middleman) like an agency, acquaintance, or servant is known as mediate possession of an object. Additionally known as indirect possession. A landlord might rent out his home to a tenant, for instance. The renter is required to provide the landlord access to the property whenever he chooses. The tenant is the intermediary through whom the landlord has possession of the property.

(4)IMMEDIATE POSSESSION

We refer to it as immediate possession or direct possession when the possessor has the item in his or her own hands. As in the case where I purchase a pen from a store and keep it for myself. I currently have ownership of the pen.

(5)CONSTRUCTIVE POSSESSION

Constructive Possession is having control over a thing without actually having it in your possession or under your control. in other words, we can say that although constructive possession is a legal possession, it is not a real possession. For instance the driver of my automobile delivering my key. Until he gave me the key, my driver was effectively in possession of my car.

(6) ADVERSE POSSESSION

Adverse possession is the term used to describe holding onto a piece of property or object without a title for a long enough amount of time to be recognized as the owner. We also refer to it colloquially as “squatter’s rights” at times. A person in real adverse possession of a piece of property must establish their desire to preserve it exclusively for themselves. It is insufficient to merely claim the asset or make payments toward it without actually having it.

For instance, ongoing usage of a driveway, agricultural field, or undeveloped piece of property.

(7) FACTO POSSESSION

It is a Latin phrase that means “in fact.” De facto possession refers to a possession that is actual but not recognized by the law.

A common law spouse, for instance, can be regarded as a de facto wife or de facto husband even though they are not legally wed but live together as a married pair.

(8)DE JURE POSSESSION

De jure is a Latin phrase that translates to “in law” and can also indicate “legitimate,” “lawful,” or “a matter of law.” Whether they exist in fact or not, de jure possessions are considered to be legally recognized possessions. It is also referred to as juridical possession, which means legal possession.

For instance, a home’s owner could forcibly evict a person from their home without intending to do so. This situation involves de jure possession.

RAJASTHAN RENT CONTROL ACT, 2001 [ AMENDED BY ACT OF 2017]

KEY TAKEAWAYS

The Control of Rent and Eviction Act, 1950 was repealed by the Rajasthan Rent Control Act, 2001, and all Municipal Areas were included by the Rajasthan Rent Control (Second Amendment) Act, 2005.
It specifies the establishment of both first and appellate rent tribunals.
Any agreement that violates Section 7 of the Act, which states that the yearly rent increase cannot be greater than 5%, will be null and void.

INTRODUCTION

In India, legislation governing rent control are frequently utilized as a gauge for determining public policy. These regulations aim to safeguard renters from any kind of exploitation on the part of their landlords. Rent control’s main objective is social welfare. These regulations are of utmost importance given the high rates of illiteracy and the enormous population of renters in the nation. These regulations are meant to prevent situations where renters are unfairly forced to pay high rent or where unwary tenants are coerced into signing unfair leases and then dishonestly evicted. In India, each state has its own rental laws that govern and regulate the interactions between landlords and tenants. Since housing is under the purview of the individual states under the Indian Constitution, each state has enacted its own rent control legislation. The several State rental laws take into account the local conditions of these states, such as the availability of suitable housing, per capita income, etc., even if these laws are generally comparable to one another and are based on the model set forth by the Central Government.

Typically, a rent agreement is reached on conditions that both the renter and the landlords agree upon. According to Indian law, every agreement between the two parties must be in writing, and any changes to either party must likewise be made in writing. This requirement’s goal is to eliminate all doubt and misunderstanding. However, if there is a dispute, it must be resolved through litigation in compliance with the State Rent Control Laws. Both residential and commercially rented properties are under the purview of these legislation.

Rajasthan, a region rich in history and culture, has long been a significant center for business and tourism in India. The state’s real estate and rental markets have expanded dramatically as a result throughout time. The Rajasthan Rent control act was first enacted by the state government in 2001 in response to the requirement for a structural and equitable rental system. It was later updated in 2017. Here, we analyze this law in-depth, highlighting its salient characteristics and the 2017 amendment’s modifications.

BACKGROUND

On April 1, 2003, the Rajasthan Rent Ceiling Act 2001 (hence referred to as “Act”) went into effect, covering the whole state of Rajasthan. Seven chapters, 32 chapters, and a schedule with four parts (A, B, C, and D) make up this act. The first chapter is the preliminary chapter (sections 1–5), the second chapter is the change of rent (sections 6-7), the third chapter is tenancy (sections 8–10), the fourth chapter is restoration of possession illegally (sections 11–12), the fifth chapter is the constitution of tribunal and procedures (sections 13–22), and chapter five (A) in relation to the appointment of rent authority (sections 22A–22C) was recently added via 2017. The reason for its addition is not clear. The Rajasthan Rent Ceiling Act, which established the authorities to make it easier to apply at the local level and not just be a legislation that exists only on paper and is of little utility, is not applicable in one chapter. Sections 22D to 22G are mentioned in Chapter 5 (B), while Chapter 6 discusses the amenities that the landlord must give to the tenant in exchange for the tenant paying a specific amount of rent. The miscellaneous part is mentioned in Chapter 7 (parts 25–32), which is by no means last.

AIM AND SCOPE

The Rajasthan Rent Control Act of 2001 was created to control property leasing and deal with problems relating to the cost of premises in the state. Its main objective was to strike a balance between renters’ rights and landlords’ obligations, preventing unjustified advantages or disadvantages for either party.

PROCEDURE FOR RECOVERY OF IMMEDIATE POSSESSION UNDER RAJASTHAN RENT CONTROL ACT

Section 16 of the Rajasthan Rent Control Act 2001 deals with the provision related to recovery of immediate possession.

SECTION 16: Procedure for recovery of immediate possession.

(1)The landlord or an person claiming immediate possession shall file petition before the Rent Tribunal and such petition shall he accompanied by affidavits and documents upon which landlord or person entitled to seek immediate possession wants to rely.

(2)The Rent Tribunal, upon filing of petition under Sub-sec. (1), shall issue notice accompanied by copies of petition, affidavits and documents, fixing a date not later than thirty days from the date of service of notice requiring the tenant to submit reply accompanied by affidavits and documents, if any, on which the tenant relies. The service of notice shall be effected through process server of the Tribunal or Civil Court as well as by registered post, acknowledgment due. Notice duly served by any of these methods shall be treated as sufficient service.

(3) The tenant may submit his reply, affidavits and documents after serving the copies of the same on the petitioner within a period not exceeding thirty days from the date of service of notice. The petitioner may life rejoinder, if any, after serving copy of the same on the tenant within a period of fifteen days from the date of service of reply.

(4) The Rent Tribunal shall thereafter fix a date of hearing which shall not be later than ninety days from the date of service of notice on the tenant. The petition shall be disposed of within a period of one hundred and fifty days from the date of service of notice on the tenant.

(5)The Rent Tribunal, during the course of such hearing, may hold such summary enquiry as it deems necessary to determine whether the petitioner is a landlord as categorized under Sub-sec. (1) or Sub-sec. (3) of Sec. 10 and on being satisfied that the petitioner belongs to any of the categories of the landlord specified Under Sub sec. (1) or Sub sec. (3) of Sec. 10, shall dispose of the petition within a period of one hundred and twenty days from the date of service of the notice, on the tenant and shall issue it certificate for recovery of immediate possession from the tenant.

(6) The certificate issued under Sub-sec. (5) shall not he executable for a period of three months from the date of decision.

POSSESSORY REMEDIES

With the exception of the individual who has a better title, possession is a good title. The law helps a person preserve his possession by protecting that person’s right to it. Even if the person in unlawful possession might actually be the real owner, it also aids in reclaiming the possession if it is taken from that person by someone else. Possessory remedy is the name given to this remedy (to regain possession). Statutes offer this “possessory remedy.”

CASE LAW RELATED TO POSSESSION

“BRIDGES V. HAWKESWORTH ”(1851)

The court ruled in Bridges v. Hawkesworth [(1851) 21 LJ QB 75] that the bundle of notes found on the floor of a shop transferred into the finder’s property rather than the shopkeeper. Salmond and Pollock both agree with the choice. Pollock contends that the store owner “defendant” lacks “corpus” within the knotted bundle, hence negating whatever “defacto” control he may have over it. Salmond thinks that the merchant lacks a “animus” to hold onto. Prof. Goodhart and Glanville William have both challenged the choice, nevertheless. They believed the decision in this instance was incorrect because the defendant shopkeeper possessed a general “animus” and the notes were actually found to be under the physical control necessary for legal possession.

“R. V. RILEY”(1852)

In the case of R. v. Riley, also known as (1852) DEARS CC 149, the accused was driving his flock of sheep when some of the prosecutor’s sheep joined the herd and were also driven off by the accused. The prosecutor’s sheep, which he unknowingly transported to the market with his own flock, were claimed by the accused to have been taken into his custody.

“R. V. MOORE”( 1861)

A bank note was dropped in the accused’s shop in the current case of R. v. Moore [(1861) L&C 1]; he picked it up and utilized it for his own purposes. Due to the fact that the accused did not possess the note until it was actually found, he was found guilty of larceny.

CONCLUSION

One of the necessary conditions for obtaining ownership is stated to be possession. Additionally, it should be remembered that the most typical way to change ownership is through the transfer of possession. It is crucial to understand the importance of the legal repercussions that follow from the idea of possession. One of the most compelling proofs of ownership is possession. The main intent behind the rule is to safeguard a thief’s right to possess a stolen item, protecting everyone else but the true owner, who already holds a superior title. It may be argued that one of the most fundamental relationships between a person and an object. Therefore, it is thought that one of the most significant relationships between a man and an object is that of possession. Despite being both a legal and factual term, possession is unquestionably a sign of ownership and lacks a clear definition of its own.

REFERENCES

[1]https://bookroo.com/quotes/possessions

[2]https://www.scribd.com/document/655492110/JURIS-2023

[3]https://brainly.com/question/29529662

[4]THE RAJASTHAN RENT CONTROL ACT, 2001 – India Code https://www.indiacode.nic.in/bitstream/123456789/18822/1/rajasthan_rent_control_act_2001_with_amendments.pdf