Here, the residential portion was let out only as a stopgap
arrangement, and the licence was terminable on the happening of a
contingency. That contingency—the return of the landlady’s son—will
terminate the agreement, the agreement period notwithstanding.
Besides that, there have been restrictions on the use: for example, how
and only for what purpose the bathroom could be used.
70. In Tulsi, the Supreme Court has held that a licensee gets the
possession only with the consent of the licensor and is liable to vacate
when so asked. Then, Shrikant contends that he has had uninterrupted
possession. According to him, though the alleged licence expired in
1989, until 1994 his possession had not been disturbed. That said, once
it is a licence, merely because the licensor has not asked the licencee to
vacate soon after the licence period does not transform the licence into
lease. The length of the period is not, I must say, a determinative factor.
71. In Achintya Kumar Saha, the Supreme Court has reiterated
that the nature of lease and licence to be gathered from surrounding
circumstances. In Amratlal Valji, this Court has relied on the Supreme
Court’s proposition in C.M. Beena’s case. It has held that the difference
between lease and licence is to be determined based on the document
and surrounding circumstances.
(b) What sort of possession does the occupier have?
72. Shrikant contends that it would have been impossible for him
to enjoy the property, had he not been in possession. A person’s
occupying a residential property speaks volumes about that occupier’s
possessing the property, and enjoyment without possession, according
to him, is unthinkable and impracticable.
73. In this context, I may note that there are many shades of
possession: say, corporeal possession, incorporeal possession,
constructive possession, adverse possession, de facto possession, de jure
possession, mediate possession, and immediate possession. Indeed,
immediate possession is a direct or primary possession. The person in
direct possession has a higher control over the thing possessed. It means
there is no intermediary or medium. On the contrary, if someone
possesses something through another, the thing remains in possession
of another. That is, the possessor has a lesser control over the thing he
has physically possessed, though.
74. Lexically speaking, ‘possession’ is a chameleonhued
word. G.
W. Paton in his A Textbook of Jurisprudence has ‘pessimistically states’
that the search for its proper meaning is likely to be a fruitless one.[26]
The expression 'possession' is a polymorphous term which assumes
different colours in different contexts. It may carry different meanings
in contextually different backgrounds. It is impossible, as was observed
in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil
Kumar Bhunja[27], to work out a completely logical and precise
definition of "possession" uniformly applicable to all situations in the
context of all statutes.
75. As noted in Gunwantlal v. The State of M.P.[28], possession in
a given case need not be physical possession but can be constructive,
having power and control over the article in case in question, while the
persons to whom physical possession is given holds it subject to that
power or control. That is, the word 'possession' means the legal right to
possession. In an interesting case, it was observed that where a person
keeps his firearm in his mother's flat which is safer than his own home,
he must be considered to be in possession of the same. (See Sullivan v.
Earl of Caithness.[29]
76. Here, I must hold that what Shrikant has is mediate
possession, like the mother’s possessing the son’s firearm in Sullivan. To
conclude, his possession is mediate and permissive.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2219 OF 2006
Shrikant Dattatraya Deshpande Vs Shalini Waman Bhat
CORAM
: DAMA SESHADRI NAIDU, J.
DATE OF PRONOUCEMENT : 13th September 2019.
