{"id":250105,"date":"1990-09-21T00:00:00","date_gmt":"1990-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishna-kishore-firm-vs-govt-of-a-p-and-others-on-21-september-1990"},"modified":"2016-03-07T02:42:21","modified_gmt":"2016-03-06T21:12:21","slug":"krishna-kishore-firm-vs-govt-of-a-p-and-others-on-21-september-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishna-kishore-firm-vs-govt-of-a-p-and-others-on-21-september-1990","title":{"rendered":"Krishna Kishore Firm vs Govt. Of. A.P. And Others on 21 September, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Krishna Kishore Firm vs Govt. Of. A.P. And Others on 21 September, 1990<\/div>\n
Equivalent citations: 1990 AIR 2292, 1990 SCR Supl. (2)\t8<\/div>\n
Author: R Sahai<\/div>\n
Bench: Sahai, R.M. (J)<\/div>\n
           PETITIONER:\nKRISHNA KISHORE FIRM\n\n\tVs.\n\nRESPONDENT:\nGOVT. OF. A.P. AND OTHERS\n\nDATE OF JUDGMENT21\/09\/1990\n\nBENCH:\nSAHAI, R.M. (J)\nBENCH:\nSAHAI, R.M. (J)\nSHETTY, K.J. (J)\n\nCITATION:\n 1990 AIR 2292\t\t  1990 SCR  Supl. (2)\t8\n 1991 SCC  (1) 184\t  JT 1990 (4)\t241\n 1990 SCALE  (2)709\n\n\nACT:\n    A.P. Cinemas (Regulation) Act, 1955\/A.P. Cinemas  (Regu-\nlation) Rules, 1970: Rule 11--Licensee applicant in physical\ncontrol of cinema site--Acquiring interest to hold by virtue\nof  agreement of sale-- Possession--Nature of--Whether\tlaw-\nful--Application for renewal of license -- Whether maintain-\nable.\nWords and Phrases: 'Lawful', 'legal' and  litigious'--Conno-\ntation of.\n\n\n\nHEADNOTE:\n    Rule  11  of the A.P. Cinema  (Regulation)\tRules,\t1970\nflamed under the A.P. Cinemas (Regulation) Act, 1955, as  it\nstood  at the relevant time, required a licensee either\t for\ngrant  or renewal of license to file evidence of his  lawful\npossession of the site.\n    The appellant-firm had been running a cinema since\t1950\non  a  piece of land leased by the then zamindar.  The\tsaid\nlease  was to expire on March 31, 1976. In the meantime\t the\nownership  of  the  land changed hands. In  1975,  when\t the\nappellant sought renewal of the license the estate  partner-\nship, consisting of father, son and grandson objected on the\nground\tthat it did not intend to renew the lease.  However,\non March 24, 1976 one of the co-lessors, the father, entered\ninto  an  agreement of sale with the appellant to  sell\t his\nentire share which was one-half for a consideration. He also\nexecuted lease of the remaining half the next day in  favour\nof the appellant as the managing partner of the estate.\t and\nwithdrew the objection filed before the licensing  authority\nunconditionally.\n    A question arose about the nature of appellant's posses-\nsion.  The  High Court found that the  co-lessor  could\t not\nlease out the property on his behalf as the partnership deed\ndid  not  invest him with such an authority,  and  that\t the\nagreement  of  sale was ineffective to make him\t the  owner.\nConsequently, the possession of appellant was not lawful  as\nlast was neither a lessee nor an owner.\nAllowing the appeal, the Court,\n9\n    HELD: 1. When a person having physical control  acquires\nan interest to hold or continue by virtue of an agreement of\nsale  it  cannot  be said that he had no  interest  and\t his\npossession  was\t forbidden by law. In the instant  case,  by\nvirtue of the transaction entered between the co-lessor\t and\nthe appellant which was not challenged by him nor any  cloud\nwas  cast  over it by creating any subsequent  interest\t the\nappellant  may\tnot have become owner  but  could  certainly\nclaim  lawful possession. In law last was entitled  to\tfile\nsuit for specific performance if there was any threat to its\nright  or interest by the co-lessor. Such right or  interest\ncould not be termed as litigious. [13A-C]\n    2.\tA lessee may before expiry of lease  acquire  entire\nlessor's interest resulting in drowning or sinking of  infe-\nrior right into superior right. That is right of one  merges\ninto  another.\tIt  has been statutorily  recognised  by  s.\nIII(d) of the Transfer of Property Act<\/a>. Similarly, a  tenant\nafter expiry of period of lease may be holding over and\t the\nlessor\tmay  acquiesce in his continuance expressly  or\t im-\npliedly. That is from conduct of lessor the tenant's posses-\nsion  may stand converted into lawful. But where the  lessor\ndoes  not agree to renew the lease nor he acquiesce  in\t his\ncontinuance a lessee cannot claim any right or interest. His\npossession is neither legal nor lawful. In the instant case,\nthe  appellant\thad acquired some interest in  part  of\t the\nundivided property by virtue of the agreement. It may not be\na  lessee, but its possession was not without any excuse  or\nforbidden by law. [12D-G]\n    3.\tThe High Court erred in equating lawful with  legal.\nWhat is legal is lawful. But what is lawful may be so  with-\nout  being formally legal. That which is not stricto  legalo\nmay  yet be lawful. It should not be forbidden by  law.\t Al-\nthough provision in Specific Relief Act<\/a> empowering a  person\nor  tenant  to\trecover possession if he  has  been  evicted\nforcibly by the landlord, may be juridical and not lawful or\na  tenant  holding over is not in lawful  possession  unless\nlandlord  agrees  or acquiesces expressly or  impliedly\t but\nthat does not alter the legal position about possession of a\nperson not legal yet not without interest. The provision  in\nSpecific Relief Act<\/a> is rounded more on public policy than on\njurisprudence. [11G; 12A-C]\n    4.\tThe  licensing\tauthority is  directed\tto  consider\nrenewal of license in accordance with law treating  licensee\nto be in lawful possession. [13F]\n    M.C. Chockalingam v. M. Manichavasagam<\/a>, [1974] 2 SCR 143\ndistinguished.\n10\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2674  of
\n1977.\n<\/p>\n
    From  the  Judgment\t and Order dated  19.8.1977  of\t the
\nAndhra Pradesh High Court in Writ Appeal No. 527 of 1976.
\n    Dr.\t K. Parasaran, Mr. A.D.N. Rao and A. Subba  Rao\t for
\nthe Appellants.\n<\/p>\n
    C.\tSitaramiah, T.S.  Krishnamurthy Iyer, G.  Prabhakar,
\nA.T.M. Sampath and P.N. Ramalingam for the Respondents.
\nThe Judgment of the Court was delivered by
\n    R.M.  SAHAI, J. Whether possession of a lessee  who\t ac-
\nquires interest of one of the co-lessors, before  expiration
\nof period of lease, is litigious or lawful?\n<\/p>\n
    Litigious and lawful possession are concepts of  varying
\nlegal shades deriving their colour from the setting in which
\nthey  emerge.  Epithet used itself indicates  the  field  in
\nwhich  they  operate. The one pertains to dispute  in  which
\npossession  may\t be conterminous with physical or  de  facto
\ncontrol,  only, whereas the domain of other is control\twith
\nsome  legal basis. The former may be uncertain in  character
\nand may even be without any basis or interest but the latter
\nis  rounded on some rule, sanction or  excuse.\tDictionarily
\n‘litigious’  means “disputed” Concise Oxford  Dictionary  or
\n“disputable” Concise Oxford Dictionary” or “marked by inten-
\ntion to quarrel” Webster Third New International Dictionary,
\n“inviting  controversy”\t Webster  Third\t New   International
\nDictionary,  “relating to or marked by\tlitigation”  Webster
\nThird  New  International  Dictionary, “that  which  is\t the
\nsubject of law suit”. Black’s Law Dictionary. Lawful on\t the
\nother hand is defined as, “legal, warranted or authorised by
\nthe law.” Black’s Law Dictionary. Jurisprudentially a person
\nin  physical  control  or de facto possession  may  have  an
\ninterest  but no right to continue whereas a person in\tpos-
\nsession,  de jure, actually or constructively has the  right
\nto  use,  enjoy, destroy or alienate property.\t“Rights\t are
\ninterest protected or recognised by law. But every  interest
\nmay not be so. Its violation may not be wrong. Many interest
\nexist de facto and not de jure; they receive no\t recognition
\nor protection from any rule or right”. Solmond on  jurispru-
\ndence.\n<\/p>\n
With this brief preface it may now be determined if  posses-
\nsion of
\n11<\/span>
\nappellant who had entered into an agreement of sale with one
\nof  co-lessors of his interest, and has been found  by\tHigh
\nCourt  to have entered into his shoes, was lawful  for\tpur-
\nposes of rule 11 framed under Andhra Pradesh Cinemas  (Regu-
\nlation) Act 1955 which required a licensee either for  grant
\nor  renewal  of\t license to file all  necessary\t record\t or’
\ncertified  copies  with the application,  “relating  to\t his
\nlawful\tpossession thereof”, if he was not the\towner.\tThat
\nthe appellant has been running cinema not as owner but after
\nobtaining lease in 1950 of 2038 2\/3 sq. yds. out of 7000 sq.
\nyds. from the then Zamindar is not in dispute. Nor it is  in
\ndispute that ownership of land changed twice since then\t and
\nthe  last purchaser in July 1974 were one V.  Venkatarathnam
\n(in  brief  V.V. since deceased) his son  and  grandson\t who
\nformed a private partnership V.V. Estates in September\t1975
\nand  objected to renewal of appellant’s license in  December
\n1975  as  the Estate did not intend to renew  the  lease  in
\nfavour of appellant which was to expire on 31st March  1976.
\nBut  problem arose when on 24th March V.V. entered  into  an
\nagreement  of sale with appellant to sell his  entire  share
\nwhich was one-half for consideration of Rs. 14,000 cash\t and
\npartnership  of\t 1\/8th in appellants’  cinema  business.  He
\nfurther\t executed  lease of remaining half on  next  day  in
\nfavour\tof appellant as managing partner of the\t Estate\t and
\nwithdrew the objection, filed before licensing authority for
\nrenewal\t of  appellant’s license,  unconditionally.  Dispute
\nhowever\t arose as V.V.’s son on his behalf and on behalf  of
\nhis nephew refuted authority of his father to grant lease as
\nhe  had\t already  withdrawn his authority to  act  on  their
\nbehalf\ton  22nd March. Therefore the question\tarose  about
\nnature of appellant’s possession. The High Court found\tthat
\neven though it was not open to the son to remove his  father
\nfrom  position of managing partner yet V.V. could not  lease
\nout  the property on his behalf as the partnership deed\t did
\nnot invest him with such authority. And so far the agreement
\nof sale was concerned it was ineffective to make him  owner.
\nConsequently  the possession of appellant was not lawful  as
\nhe was neither lessee nor owner.\n<\/p>\n
    True the appellant was neither owner nor lessee. Yet was
\nhis possession forbidden in law? Was there no excuse for his
\npossession? The error committed by High Court was to  equate
\nlawful\twith legal. Legal and lawful, normally, convey\tsame
\nsense  and  are usually interchangeable. What  is  legal  is
\nlawful. But what is lawful may be so without being  formally
\nlegal. “The principle distinction between the terms ‘lawful’
\nand  ‘legal’  is that former contemplates the  substance  of
\nlaw, the latter the form of law. To say of an act that it is
\nlawful\timplies that it is authorised, Sanctioned or at\t any
\nrate not forbidden by law”.\n<\/p>\n
12<\/span><\/p>\n
Black’s\t Law Dictionary. Same thought about lawful has\tbeen
\nbrought out by Pollock and Wright by explaining that “Lawful
\nPossession” means a legal possession which is also  rightful
\nor at least excusable. Pollock and Wright Possession in\t the
\nCommon Law. Thus that which is not stricto legalo may yet be
\nlawful. It should not be forbidden by law. In fact legal  is
\nassociated  with provisions in the Act, rules  etc.  whereas
\nlawful\tvisualises  all that is not illegal against  law  or
\neven permissible. Lawful is wider in connotation than legal.
\nAlthough  provision  in\t specific Relief  Act  empowering  a
\nperson or tenant to recover possession if he has been evict-
\ned forcibly by the Landlord, may be juridical and not lawful
\nor a tenant holding over is not in lawful possession  unless
\nlandlord  agrees  or acquiesces expressly or  impliedly\t but
\nthat does not alter the legal position about possession of a
\nperson not legal yet not without interest. The provision  in
\nspecific Relief Act is rounded more on public policy than on
\njurisprudence.\tBut concept of lawful as opposed or in\tcon-
\ntradistinction\tto  litigious assumes  different  dimension.
\nM.C. Chockalingam v. M. Manichavasagam<\/a>, [1974] 2 SCR 143  is
\nof  no help as it was concerned with possession which  could
\nnot  be said to be warranted or authorised by law.  Distinc-
\ntion  between nature of possession of a lessee after  expiry
\nof  period of lease can better be explained by resorting  to
\nfew  illustrations. For instance a lessee may before  expiry
\nof  lease  acquire  entire lessor’s  interest  resulting  in
\n“drowning”  or\t“sinking” of inferior  right  into  superior
\nright. That is right of one merges into another. It has been
\nstatutorily  recognised\t by Section 111(d)<\/a>  of\tTransfer  of
\nProperty  Act. Similarly a tenant after expiry of period  of
\nlease  may be holding over and the lessor may  acquiesce  in
\nhis continuance expressly or impliedly. That is from conduct
\nof  lessor the tenant’s possession may stand converted\tinto
\nlawful. The other may be where lessor may not agree to renew
\nthe  lease nor he may acquiesce in his continuance.  Such  a
\nlessee cannot claim any right or interest. His possession is
\nneither\t legal nor lawful. Such was the Chockalingam’s\tcase
\n(supra). The Court held that continuance of lessee’s posses-
\nsion  after  expiry of period of lease was  not\t lawful\t for
\npurposes  of renewal of licence under Madras Cinema  Regula-
\ntion  Act  1955 obviously because lessee was  left  with  no
\ninterest  which\t could furnish any excuse or  give  it\teven
\ncolour of being legal.\n<\/p>\n
    Yet another illustration may be, not very common  where,
\nlessee\tacquires  some\tinterest in part  of  the  undivided
\nproperty  as in present case. Can it be said in such a\tcase
\non ratio of Chockalingam’s authority that possession of such
\nlessee\tor to be more specific of appellant was\t unwarranted
\nor  contrary  to law: Share of V.V. in 7,000  sq.  yds.\t was
\nhalf.  He  had agreed to sell his half\tinterest.  V.V.\t was
\njoint  owner with his son and grandson. He had “both  single
\npossession and a single
\n13<\/span>
\njoint  right  to possess” Pollock and Wright.  Whether\tsuch
\njoint owner could transfer his share even when he was not in
\nexclusive possession and what would be effect of such trans-
\nfer  need not be gone into as title suit is pending  between
\nparties\t but when a person having physical control  acquires
\nan interest to hold or continue by virtue of an agreement of
\nsale  it  cannot  be said that he had no  interest  and\t his
\npossession  was forbidden by law. The High Court lost  sight
\nof  the fact that by virtue of the transaction\tentered\t be-
\ntween V.V. and appellant which was not challenged by him nor
\nany cloud was cast over it by creating any subsequent inter-
\nest  the  appellant may not have become owner but  he  could
\ncertainly claim that he was in lawful possession. In law  he
\nwas entitled to file suit for specific performance if  there
\nwas  any threat to his right or interest by V.V. Such  right
\nor  interest  could not be termed as litigious.\t It  was  at
\nleast  not without any excuse or forbidden by law. In  words
\nand  Phrases Permanent Edition Vol. 25A, 2nd reprint 1976  a
\nsomewhat similar situation was described as not litigious:
\n“Where\tclient conveyed undivided half-interest in  land  to
\nattorney  in consideration of attorney’s rendering  services
\nand paying court costs, giving irrevocable power of attorney
\nto sue, settle, or compromise, attorney received good  title
\nas  third  person purchasing upon faith of  public  records,
\nprecluding reformation as against attorney, on the  strength
\nof an instrument recorded after deed to attorney and  client
\nclaimed title, as against contention that attorney  acquired
\na “litigious right”.\n<\/p>\n
    For\t reasons  stated above this appeal succeeds  and  is
\nallowed. The order of High Court and the licensing authority
\nare  set aside. The licensing authority is further  directed
\nto  consider renewal of license of the cinema in  accordance
\nwith law treating licensee to be in lawful possession.
\n    Since suit has been filed between parties in respect  of
\ntitle it is clarified that any observation made above  shall
\nnot  be\t treated  as binding or deciding  right\t of  parties
\nexcept to the limited extent that appellant shall be treated
\nto be in lawful possession for renewal of license subject to
\nfinal  adjudication  in suit, which shall  now\tproceed\t as,
\nprobably,  the\tproceedings  had been stayed.  It  shall  be
\ndisposed of expeditiously.\n<\/p>\n
    The\t appellant  shall be entitled to its costs  in\tthis
\nCourt and High Court.\n<\/p>\n
P.S.S.\t\t\t\t\t  Appeal allowed.\n14<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Krishna Kishore Firm vs Govt. Of. A.P. And Others on 21 September, 1990 Equivalent citations: 1990 AIR 2292, 1990 SCR Supl. (2) 8 Author: R Sahai Bench: Sahai, R.M. (J) PETITIONER: KRISHNA KISHORE FIRM Vs. RESPONDENT: GOVT. OF. A.P. AND OTHERS DATE OF JUDGMENT21\/09\/1990 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-250105","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKrishna Kishore Firm vs Govt. Of. A.P. 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