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TMI Blog1973 (10) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... certain circumstances. The lessors (the appellants herein) are the sole and absolute owners of the Kapali Talkies, Madras-28, described in Schedule 'A' to the lease. 3. It may be appropriate to extract some material portions of the lease executed between the parties, which run as follows :- 4. Schedule 'A' describes the land, buildings, other constructions and immovable things and properties therein with all the appurtenances known as the cinema theatre, Kapali Talkies, situated in No. 52, Ramakrishna Mutt Road, Raja Annamalaipuram, Madras-28, excluding the room in front side of the main building of the cinema theatre, which is retained by the lessors exclusively for their occupation and use. The other leased properties are mentioned in Schedules 'B', 'C' and 'D' to the lease. Schedule 'B' describes the projectors and machineries installed in the building. Schedule 'C' describes the seats and furniture. Schedule 'D' describes the fixtures and fittings and installations, equipments and other articles and things and materials. Having so described the leased properties, the lessors hereby grant unto the lessee...b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Madras Cinemas (Regulations) Act, 1955 (Act No. 9 of 1955) (briefly the Act), to renew the licence. On 12th July, 1972, the appellants also made an application to the Commissioner to grant the licence in their favour. In August, 1972, the Commissioner by a common order in both the petitions renewed the licence of the respondent and rejected the application of the appellants. On 14th August, 1972, the appellants preferred an appeal to the Board of Revenue which set aside the order of the Commissioner on 16th September, 1972. The first respondent then lodged an application under Article 226 of the Constitution in the Madras High Court on 18th September, 1972 and the learned single Judge dismissed the same on 8th February, 1973, The respondent thereafter preferred a Letters Patent Appeal to the Division Bench which by the impugned judgment allowed the same on 4th July, 1973. The High Court refused to grant leave to appeal to this Court and hence this appeal by special leave. 10. The Board of Revenue (briefly the Board) accepted the appellants' contention that the respondent was not in lawful possession of the leased property. The learned single Judge of the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ani AIR1954Bom358 wherein it was observed as follows :- Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law.... He further points out that this Court in the said case also approved of the decision of the Full Bench of the Allahabad High Court in Yar Mohammad v. Lakshmi Das I.L.R. (1958) All. 394 wherein it was observed : No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under Section 9 of the Specific Relief Act). The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by both the parties, It is, therefore, clear that under Rule 13 the respondent is required to produce documentary evidence to show that he is in 'lawful possession' of the site, building and equipment. The only documentary evidence he showed with regard to his possession is the expired lease. Further the appellants had themselves applied for the grant of a licence and they resisted the respondent's right to possession of the property after expiry of the lease. In these circumstances, it is necessary to consider whether the High Court's view that such a possession is 'lawful possession' is correct or not. 16. We should also note here that it is admitted by both the parties that the case is not governed by the Madras Buildings (lease and Rent Control) Act, 1960 (Madras Act 18 of 1960) to entitle the tenant to claim statutory protection from eviction under the Act. 17. The principal question, therefore, that comes for decision in this appeal is whether a tenant, who is not a statutory tenant, is entitled to claim to be in lawful possession of the premises on determination of the tenancy, on expiry of the lease. We may quote what the Division Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat process. If this Court is satisfied about it, it will not further go into the rival position in regard to the legality of possession of the site which will not necessarily be the final pronouncement between the parties but leave the issue to be tried as between them in a suit in the appropriate civil Court. 18. We are concerned in this case with the concept of 'lawful possession' in the context of the Act with which we are concerned. As stated earlier, Rule 13 has got two parts and we are concerned in this case with the second part. A great stress has been given by Mr. Setalvad upon the decision of the Supreme Court in Lalu Yeshwant Singh's case (supra) where this Court considered the possession of a tenant after expiry of the lease, as in this case, as a juridical possession in the context of a provision similar to Section 9 of the Specific Relief Act. He emphasises that such a juridical possession would be a lawful possession, as it is protected by law, namely, under Section 6 (new) of the Specific Relief Act. Mr. Setalvad submits that since even with the best of title to the property the landlord cannot forcibly dispossess a tenant after expiry of the lease, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of 'lawful possession' in part II, Chapter I of Pollock Wright's book An Essay on Possession in the Common Law , 1888 edition, at page 26. According to the learned authors : Legal possession, the state of being a possessor in the eye of the law...but it may exist...either with or without a rightful origin. The illustrations given in the book at pages 27 and 28 are more interesting. A tailor sends to J.S's house a coat which J.S. has ordered. J.S. puts on the coat, and then has both physical control and rightful possession in law. J.S. takes off the coat and gives it to a servant to take back to the tailor for some alterations. Now the servant has physical control (in this connexion generally called 'custody' by our authorities) and J.S. still has the possession in law. While the servant is going on his errand, Z assaults him and robs him of the coat. Z is not only physically master of the coat, but, so soon as he has complete control of it, he has possession in law, though a wrongful possession.... 'Lawful possession' means a legal possession which is also rightful or at least excusable; this may be consistent with a superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant Singh's case (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. 21. Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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