Possession and Occupy means

In Ram Dass v. Davinder, (2004) 3 SCC 684, this Court interpreted Section 13(2)(v) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 in terms of which an order of eviction could be passed against the tenant if he is shown to have ceased to occupy the premises continuously for a period of 4 months without reasonable cause. Respondent Davinder was tenant in the shop belonging to Appellant-Ram Dass. The Appellant filed a petition for eviction of the Respondent on the ground that he had ceased to occupy the shop for a continuous period of 4 months without any reasonable cause. The Rent Controller analyzed the pleadings of the parties and evidence produced by them and held that the Appellant has been able to prove that the Respondent had ceased to occupy the premises for a continuous period of more than 4 months and there was no reasonable cause for doing so. The plea of the Respondent that he had kept the shop closed intermittently due to sickness was not accepted by the Rent Controller. The Appellate Authority, on an independent evaluation of the evidence, confirmed the finding of the Rent Controller. The High Court allowed the revision filed by the Respondent and set aside the orders of the Rent Controller and the Appellate Authority. This Court reversed the order of the High Court and restored the one passed by the Rent Controller. The Court highlighted the distinction between the terms “possession” and “occupy” in the context of Rent Control Legislation in the following words:

The terms “possession” and “occupy” are in common parlance used interchangeably. However, in law, possession over a property may amount to holding it as an owner but to occupy is to keep possession of by being present in it. The rent control legislations are the outcome of paucity of accommodations. Most of the rent control legislations, in force in different States, expect the tenant to occupy the tenancy premises. If he himself ceases to occupy and parts with possession in favour of someone else, it provides a ground for eviction. Similarly, some legislations provide it as a ground of eviction if the tenant has just ceased to occupy the tenancy premises though he may have continued to retain possession thereof. The scheme of the Haryana Act is also to insist on the tenant remaining in occupation of the premises. Consistently with what has been mutually agreed upon, the tenant is expected to make useful use of the property and subject the tenancy premises to any permissible and useful activity by actually being there. To the landlord’s plea of the tenant having ceased to occupy the premises it is no answer that the tenant has a right to possess the tenancy premises and he has continued in juridical possession thereof. The Act protects the tenants from eviction and enacts specifically the grounds on the availability whereof the tenant may be directed to be evicted. It is for the landlord to make out a ground for eviction. The burden of proof lies on him. However, the onus keeps shifting. Once the landlord has been able to show that the tenancy premises were not being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises as would have required the tenant’s actually being in the premises, the ground for eviction is made out. The availability of a reasonable cause for ceasing to occupy the premises would obviously be within the knowledge and, at times, within the exclusive knowledge of the tenant. Once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises.

(emphasis supplied)

21. In Brown v. Brash (1948) 1 All. E.R. 922, the Court of appeal was called upon to examine correctness of an order passed by the County Court Judge, who upheld the tenant’s claim to possession of the premises and awarded damages against the Appellant for trespass. The facts of that case were that the premises were let out to the tenant in 1941 on a quarterly rent of 26 pounds. In 1945, the tenant was convicted and sentenced to serve 2 years’ imprisonment for stealing 6 tones of tea. While going to jail, the tenant left physical occupation of the premises to his mistress and two illegitimate children. In March 1946, the tenant’s mistress left the premises and dropped the two children with his mother. In the meanwhile, the landlord sold the premises. The purchaser filed an action in July 1946 for eviction of the tenant on the ground that he had abandoned possession. The County Court Judge held that the tenant had not abandoned possession and that even though he failed in some of his obligations under the tenancy, it was not reasonable to make an order for possession against him. In December 1946, the purchaser of the original landlord transferred the premises to the Appellant. After release from prison, the tenant brought an action for possession and damages for trespass. His claim was allowed by the County Court Judge, who directed the Appellant to return the premises to the Respondent-tenant and also pay damages. The Court of appeal reversed the order of the County Court Judge and held:

We are of opinion that a “non-occupying” tenant prima facie forfeits his status as a statutory tenant. But what is meant by “non-occupying”? The term clearly cannot cover every tenant who for however short a time, or however necessary a purpose, or with whatever intention as regards returning, absents himself from the demised premises. To retain possession or occupation for the purpose of retaining protection the tenant cannot be compelled to spend 24 hours in all weathers under his own roof for 365 days in the year. Clearly, for instance, the tenant of a London house, who spends his week-ends in the country, or his long vacation in Scotland, does not necessarily cease to be in occupation. Nevertheless, absence may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of a cesser of possession or occupation. The question is one of fact and of degree. Assume an absence sufficiently prolonged to have this effect. The legal result seems to us to be as follows: (1) The onus is then on the tenant to repel the presumption that his possession has ceased. (2) To repel it he must, at all events, establish a de facto intention on his part to return after his absence. (3) But we are of opinion that neither in principle nor on the authorities can this be enough. To suppose that he can absent himself for 5 or 10 years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts as affirmed in Keeves v. Dean (1) and Skinner v. Geary (3), (4) Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if he couples and clothes his inward intention with some formal, outward, and visible sign of it, i.e., installs in the premises some caretaker or representative, be it a relative or not, with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. There will then, at all events, be someone to profit by the housing accommodation involved which will not stand empty. It may be that the same result can be secured by leaving on the premises, as deliberate symbols of continued occupation, furniture, though we are not clear that this was necessary to the decision in Brown v. Draper (4). Apart from authority, in principle possession in fact (for it is with possession in fact and not with possession in law that we are here concerned) requires not merely an “animus possidendi” but a “corpus possessionis,” viz., some visible state of affairs in which the animus possidendi finds expression. (5) If the caretaker (to use that term for short) or the furniture be removed from the premises otherwise than quite temporarily, we are of opinion that the protection, artificially prolonged by their presence, ceases, whether the tenant wills or desires such removal or not. A man’s possession of a wild bird, which he keeps in a cage, ceases if it escapes notwithstanding that his desire to retain possession of it continues and that its escape is contrary thereto. We do not think in this connection that it is open to the tenant to rely on the fact of his imprisonment as preventing him from taking steps to assert possession by visible action. The tenant, it is true, had not intended to go to prison. He committed intentionally the felonious act which in the events which have happened landed him there, and thereby put it out of his power to assert possession by visible acts after Mar. 9,1946. He cannot, in these circumstances, we feel, be in a better position than if his absence and inaction had been voluntary.

(emphasis supplied)

22. In Achut Pandurang Kulkarni v. Sadashiv Ganesh Phulambrikarm, AIR 1973 Bom. 210, the learned Single Judge of the Bombay High Court interpreted Section 13(1)(k) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 the language of which is somewhat similar to Section 11(4)(v) of the 1965 Act. The learned Single Judge referred to order passed by Chagla, C.J. in Civil Revision Application No. 1527/1953 decided on July 30, 1954 and observed:

As observed by Chagla, C. J., in the above case, physical possession by a tenant himself was not necessary. Physical possession by other members of the family also is not necessary if there was reasonable cause for their remaining absent from the premises. The question is one of fact and degree. If there is evidence on record to show that the tenant had something more than a vague wish to return and that he had a real hope coupled with the practicable possibility of its fulfillment within a reasonable time, it cannot be said that he had no reasonable cause for not using the premises. In every case it is the duty of the Court to satisfy itself that the tenant had no reasonable cause. Absence may be sufficiently prolonged or unintermittent to compel the inference prima facie of a cesser of occupation. The onus is on the tenant in such a case to repel the presumption and to establish that his possession had not ceased or that he had ceased to occupy on account of reasonable cause. In my judgment, this can be established if the tenant proves notwithstanding the intention on his part to return after his absence, his helplessness in remaining absent from the premises.

It is true that the tenant should have made proper attempts to discharge the onus in the present case by producing the orders, if not before the trial Court, at least before the Appellate Court. That, however, as stated above, does not permit the Courts to brush aside the requirements of Section 13(1)(k). It is a matter for not awarding the costs. The Court cannot ignore the nature of the tenant’s services and his liability to be transferred when deciding the question under Section 13(1)(k). I do not propose to lay down that in every case where a Government servant is transferred and he goes on paying rent in respect of the premises, he had reasonable cause for not using the premises for the purpose for which they were let. The question will depend on the facts and circumstances of each case. The tenant must couple and clothe his inward intention to return, with some formal, outward and visible sign of it, as for instance by installing some caretaker or representative, be it a relative or not with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. It may also be that the same result can be secured by leaving on the premises, as a deliberate symbol of continued occupation, furniture. As stated by Asquith L. J., in Brown v. Brash and Ambrose (1948) 2 KB 247, the tenant must prove not only animus possidendi but a corpus possessionis.

(emphasis supplied)

23. In Ananthasubramania Iyer v. Sarada Amma 1978 KLT 338, the learned Single Judge of the Kerala High Court held:

The physical absence of the tenant from the building for more than six months would raise a presumption that he had ceased to occupy the building and that he had abandoned it and that it was for the tenant to dislodge the presumption and establish that he had the intention to continue to occupy the tenanted premises.

24. The word “occupy” appearing in Section 11(4)(v) of the 1965 Act has been interpreted by the Kerala High Court in large number of cases. In Mathai Antony v. Abraham, (2004) 3 KLT 169, the Division Bench of the High Court referred to several judgments including the one of this Court in Ram Dass v. Davinder (supra) and observed:

The word “occupy” occurring in Section 11(4)(v) has got different meaning in different context. The meaning of the word “occupy” in the context of Section 11(4)(v) has to be understood in the light of the object and purpose of the Rent Control Act in mind. The rent control legislation is intended to give protection to the tenant, so that there will not be interference with the user of the tenanted premises during the currency of the tenancy. Landlord cannot disturb the possession and enjoyment of the tenanted premises. Legislature has guardedly used the expression “occupy” in Section 11(4)(v) instead of “possession”. Occupy in certain context indicates mere physical presence, but in other context actual enjoyment. Occupation includes possession as its primary element, and also includes “enjoyment”. The word “occupy” sometimes indicates legal possession in the technical sense; at other times mere physical presence. We have to examine the question whether mere “physical possession” would satisfy the word “occupy” within the meaning of Section 11(4)(v) of the Act. In our view mere physical possession of premises would not satisfy the meaning of “occupation” under Section 11(4)(v). The word “possession” means holding of such possession, animus possidendi, means, the intention to exclude other persons. The word “occupy” has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. A learned single Judge of this Court in Abbas v. Sankaran Namboodiri 1993 (1) KLT 76, took the view that the word occupation is used to denote the tenant’s actual physical use of the building either by himself or through his agents or employees. The Division Bench of this Court of which one of us is a party (Radhakrishnan, J.), in Rajagopalan v. Gopalan 2004 (1) KLT 54, interpreting Section 11(4)(v) took the view that occupation in the context of Section 11(4) means only physical occupation, which requires further explanation. Occupation in the context of Section 11(4)(v) means actual user. If the landlord could establish that in a given case even if the tenant is in physical possession of the premises, the premises is not being used, that is a good ground for eviction under Section 11(4)(v) of the Act. Section 11(4) uses the words “put the landlord in possession” and not “occupation”, but 11 (4)(v) uses the words “the tenant ceases to occupy”. In Section 11(4)(v) in the case of landlord the emphasis is on “possession” but in the case of tenant the emphasis is on “occupation”. The word “occupy” has a distinct meaning so far as the Rent Act is concerned when pertains to tenant, that is, possession with user.

25. In Kurian Thomas v. Sreedharan Menon, (2004) 3 KLT 326, the High Court held as under:

Once landlord could establish the tenant has ceased to occupy the premises continuously for six months prior to the filing of the petition he is entitled to get order of eviction under that section. The word “occupation” must be understood to be not mere physical possession. Tenant should use the building. The word “occupy” means to cohabit with, to hold or have in possession. Tenanted premises must be in the state of being enjoyed and occupied. The word “occupy” used by the statute would show that tenanted premises be put to use. Tenant cannot be heard to contend that he is having physical possession of the premises though not in occupation. So far as this case is concerned, we are of the view landlord has discharged the burden and then the onus has shifted to the tenant and the tenant could not establish that he has not ceased to occupy the premises and even if there is cessation that was with reasonable cause.[(2011) 5 SCALE 312 : AIR 2011 SC 2198 : (2011) 5 SCC 778 : JT 2011 (5) SC 419]

Meaning of reasonableness

In Paulina Joseph v. Idukki District Wholesale Co-operative Consumer Stores Ltd. (supra), the Division Bench of the High Court referred to the dictionary meaning of the word “reasonable” and observed:

The question whether the tenant ceases to occupy the building continuously for six months is primarily a question of fact to be determined with reference to the facts available in each case. The scope of “occupation of the building” depends on the purpose for which the building is let and the purpose for which it is used. The nature of the business and the requirement of the physical presence or otherwise of the tenant in the building for the conduct of the business is a relevant fact. No straight jacket formula can be evolved in the matter of proof of cessation of occupation within the meaning of Section 11(4)(v) of the Act. This intention of the tenant, though not conclusive as such has also relevance in determining whether there was actual cessation of occupation within the meaning of Section 11(4)(v). When it is proved by the landlord that the tenant ceased to occupy the building continuously for six months, the burden of proving that there was reasonable cause for such cessation is on the tenant. Reasonable cause is also a question of fact to be decided in the light of the facts proved in the case. No rigid formula can be evolved for proof of “reasonable cause”. The facts and circumstances of the case, the particular facts with reference to the business activities of the tenant, the nature of the business, the magnitude of the business, the circumstance which led to the cessation of occupation are all relevant in considering whether there was reasonable cause. If the cessation of occupation was due to circumstances beyond the control of the tenant, certainly the Courts would be inclined to accept the case of the tenant that cessation of occupation was not without reasonable cause. Financial constraint of the tenant by itself may not be a sufficient reason to hold that there was reasonable cause. But that is not completely irrelevant in considering the question. Whether the tenant is an individual or an organization controlled by the Government or a Co-operative society may also be relevant in considering the question of reasonable cause. If there is a plausible explanation to the question why the business was not run in the premises continuously, it may well be a relevant fact in considering whether there was reasonable cause for cessation of occupation under Section 11(4)(v), depending on the facts and circumstances of each case. In the given set of facts and circumstances, if it can be concluded that an ordinary prudent man would act in the manner in which the tenant did, it can be safely said that the cessation of occupation was with reasonable cause.

(emphasis supplied)

27. In Simon and Ors. v. Rappai (2008) 2 Kar LJ 488, the High Court interpreted Section 11(4)(v) and held:

As far as the ground available under Section 11(4)(v) is concerned, it is well settled by various decisions of this Court that if the landlord has discharged the initial burden it is upto the tenant to lead evidence in the matter to show that he has been conducting business in the premises. A learned Single Judge of this Court in the decision report in Abbas v. Sankaran Namboodiri 1993 (1) KLT 76, while examining the question held that, the word ‘occupation’ is used to denote the tenant’s actual physical use of the building either by himself or through his agents or employees and legal possession is not sufficient. It was held that, “however, if a landlord succeeds in proving that his tenant did not occupy the building almost near the period fixed in Section 11(4)(v) of the Act it may help the court to presume that there could have been cessation of occupation for the statutory period. Such background presumption is not anathematic to the law of evidence”. In para.7 it was observed that, “be that as it may, burden is on the landlord to prove that the tenant ceased to occupy the building for six months. But it is hard to expect a landlord to prove the precise during which his tenant ceased to occupy the building. However, if the court is satisfied on the evidence and/or with the aid of presumptions that the tenant did not occupy the building for such length of time as would cover the statutory period, then the burden would shift to the tenant to show that he had reasonable cause for such non-occupation.” Finally it was also observed in para.9 that, ‘but, possession must combine with something more to make it occupation. Legal possession does not by itself constitute occupation’. These principles can be safely applied to the facts of this case.