The Evidentiary Value of presumption of possession: Analysis of Art. 37 of the Iranian Civil Code

Possession, by title of ownership, shall be taken as proof of ownership (Article 35 of Civil Code); If someone claims ownership versus a possessor, he has to prove it and illegal possession of the possessor (Zil yad). This situation is referred to as Amarah-e-Yad. If it is proved that the claimant was formerly the owner of the property ,by the continuity of it( Istishab of ownership), a conflict arises between Istishab and Amarah and according to the opinion of Islamic jurists, Amarah precedes Istishab, unless the ownership of the claimant has been proved with admission of the possessor. In this case, Istishab precedes Amarah (Article 37 of the Civil Code). This issue has wondered some of the jurists who believe that the proof of the former ownership of the claimant, with any reason, invalids the Amarah; On the other hand, some believe that there is no conflict between current ownership of possessor and former ownership of the claimant and in any case, Amarah precedes Istishab, and proves the ownership of possessor. This article tries to examine the issue from a jurisprudential (Fiqhi) point of view and analyze the Article 37 of Civil Code.