KRISHNA KISHORE FIRM Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) Whether possession of a lessee who acquires interest of one of the co-lessors, before expiration of period of lease, is litigious or lawful

(2.) Litigious and lawful possession are concepts of varying legal shades deriving their colour from the setting in which they emerge. Epithet used itself indicates the field in which they operate. The one pertains to dispute in which possession may be conterminous with physical or de facto control, only, whereas the domain of other is control with some legal basis. The former may be uncertain in character and may even be without any basis or interest but the latter is founded on some rule, sanction or excuse. Dictionarily 'litigious' means "disputed"1 or "disputable"2 or " marked by intention to quarrel"3 , "inviting controversy"4 , "relating to or marked by litigation"5, "that which is the subject of law suit"6. Lawful on the other hand is defined as, "legel, warranted or authorised by the law."7Jurisprudentially a person in physical control or de facto possession may have an interest but no right to continue whereas a person in possession, de jure, actually or constructively has the right to use, enjoy, destroy or alienate property. "Rights are interest protected or recognised by law. But every interest may not be so. Its violation may not be wrong. Many interess exist de facto and not de jure; they receive no recognition or protection from any rule or right".8

(3.) With this brief preface it may now be determined if possession of appellant who had entered into an agreement of sale with one of co-lessors of his interest, and has been found by High Court to have entered into his shoes was lawful for purposes of rule 11 framed under Andhra Pradesh Cinemas (Regulation) Act 1955 which required a licensee either for grant or renewal of licence to file all necessary record or certified copies with the application, "relating to his lawful possession thereof", if he was not the owner. That the appellant has been running cinena not as owner but after obtaining lease in 1950 of 2038 2/ 3 sq. yds. out of 7000 sq. yds. from the then Zamindar is not in dispute. Nor it is in dispute that ownership of land changed twice since then and the last purchaser in July 1974 were one V. Venkatarathnam (in brief V. V. since deceased) his son and grandson who formed a private partnership V. V. Estates in September 1975 and objected to renewal of appellant's licence in December 1975 as the Estate did not intend to renew the lease in favour of appellant which was to expire on 31st March 1976. But problem arose when on 24th March V. V. entered into an agreement of sale with appellant to sell his entire share which was one-half for consideration of Rupees 14,000/- cash and partnership of 1/8th in appellants' cinema business. He further executed lease of remaining half on next day in favour of appellant as managing partner of the Estate and withdrew the objection, filed before licensing authority for renewal of appellants' license, unconditionally. Dispute however arose as V.V.' s son on his behalf and on behalf of his nephew refuted authority of his father to grant lease as he had already withdrawn his authority to act on their behalf of 22nd March. Therefore the question arose about nature of appellants' possession. The High Court found that even though it was not open to the son to remove his father from position of managing partner yet V. V. could not lease out the property on his behalf as the partnership deed did not invest him with such authority. And so far the agreement of sale was concerned it was ineffective to make him owner. Consequently the possession of appellant was not lawful as he was neither lessee nor owner.