Possession in fact and in law

Possession is divided into two categories , viz. Possession in fact and possession in law. Possession in fact is actual or physical possession. It is a physical relation to a thing. Possession in law means possession in the eye of law. It means a possession which is recognized and protected by law. There is sometimes a discrepancy between possession in fact and possession in law, although usually possession has existence both in fact and in law in the same person. A person who is in de fecto possession of a thing also falls to have de jure possession. 

However sometimes possession may have existence in fact and not in law. If a servant holds certain things in his custody on behalf of the master , he has the actual possession of those things but in the eye of law, the possession is with the master. In certain cases , possession may exists in law and not in fact. This is so in the case of constructive possession. 

A tenant may be occupying a particular building but the land lord has the constructive possession of the same. The same is the case with the things in the possession of servants , agents and bailees. The fundamental element both in possession in fact and in law is the same . The element is the possibility of excluding every person other than the possessor. From the use or control of the thing. According to Keeton “ possession in fact and possession in law are not invariably coterminus , although very frequently they are.” The Roman lawyers made a distinction between possession in fact as possessio naturalis ans possession in law as possessio civilis. 

In consequence of this divergence , partly intentional and avowed and partly accidental and unavowed between the law and fact of possession, it is impossible that any abstruct theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which has developed with absolute logical rigour , undisturbed by historical accidents and unaffected by any of those special considerations which in all parts in the law prevent the in flexible and consistent recognition of general principle.