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Bhagwan Swarup Mathur and ors. Vs. the District Magistrate, Aligarh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2329 of 1973
Judge
Reported inAIR1975All456
ActsCinematograph Act, 1952 - Sections 10
AppellantBhagwan Swarup Mathur and ors.
RespondentThe District Magistrate, Aligarh and ors.
Appellant AdvocateV.K. Gupta, Adv.
Respondent AdvocateStanding Counsel, ;R.P. Gupal and ;V.P. Mishra, Advs.
DispositionPetition dismissed
Excerpt:
.....have filed the instant writ petition praying for a writ of certiorari or any like writ or any other suitable order or direction quashing or cancelling the cinematograph licence granted or its renewal by opposite party no. as a general rule a right is owned by one person only at a time, but duplicate ownership is perfectly possible......was under the superintendence of court of wards, it was leased out for a period of 30 years to opposite party no. 3. under the terms of the lease opposite party no. 3 was entitled to make any constructions thereon. it was stipulated in the lease deed that on the expiry of the lease, possession of the plot of land will be restored after removal of the constructions thereon to the lessor. during the subsistence of the lease in accordancewith the terms thereof opposite party no. 3 constructed a cinema hall called the ruby theatres on the demised land. the lease expired sometime in the year 1967. while the period of lease was still continuing, the petitioners' uncle rajendra' nath transferred his half share in the plot in question in favour of opposite party no. 3. thus admittedly.....
Judgment:
ORDER

Yashoda Nandan, J.

1. Opposite party No. 3 M/s. M. S. Bansal (Private) Limited are running a cinema house situate on a piece of land in the city of Aligarh. The land originally belonged to the predecessors of the petitioners. On the 9th September, 1937 while the estate of which the land formed part was under the superintendence of Court of Wards, it was leased out for a period of 30 years to opposite party No. 3. Under the terms of the lease opposite party No. 3 was entitled to make any constructions thereon. It was stipulated in the lease deed that on the expiry of the lease, possession of the plot of land will be restored after removal of the constructions thereon to the lessor. During the subsistence of the lease in accordancewith the terms thereof opposite party No. 3 constructed a cinema hall called the Ruby Theatres on the demised land. The lease expired sometime in the year 1967. While the period of lease was still continuing, the petitioners' uncle Rajendra' Nath transferred his half share in the plot in question in favour of opposite party No. 3. Thus admittedly opposite party No. 3 became a co-owner of the site of the cinema hall along with the petitioners. After the expiry of the period of lease, the petitioners terminated the lease of their half share in the plot of land and called upon opposite party No. 3 to partition the land and hand over to them possession over their half share. Since opposite party No. 3 failed to comply, the 'petitioners on the 31st October, 1967 instituted Suit No. 87 of 1967 for partition and separate possession of their half share in the land, which formed the site of the Ruby Theatres, in the court of the learned Civil Judge. Aligarh. The suit was resisted by opposite party No. 3 who filed another suit numbered as 92 of 1969 for specific performance of an alleged oral agreement for sale of the petitioners half share in the land. The suit instituted by opposite party No. 3 was dismissed. In the suit instituted by the petitioners, the trial court held that the petitioners were entitled to half share in the plot of land on which the Ruby Theatres stood. Taking into account the equities, the trial court, however, instead of decreeing the suit for partition and separate possession over half share granted a decree for money compensation to the petitioners. An appeal was filed by the petitioners in this Court which was numbered as First Appeal No. 304 of 1969 against the decree of the trial court. The petitioners sought a modification of the decree of the trial court and contended that the trial court had erred in awarding only a decree for money compensation instead of decreeing their claim for partition and separate possession over a half share in the land forming subject-matter of the suit. The first appeal was allowed by this Court and a decree for partition and separate possession over half share in the land was passed in favour of the petitioner. Against the decree of this Court, an appeal was preferred in the Supreme Court which has been dismissed during the pendency of the writ petition. The position, therefore, is that the petitioners have acquired ,a right to get the land in dispute/partitioned by metes -and bounds and to obtain possession over a half share thereof. Admittedly the final decree for partition has not yet been prepared as a consequence of which opposite party No. 3 continues to be in exclusive possession of the entire site of Ruby Theatres. Having obtained a decree for partition and separate pos-session over half of land on which the Ruby Theatres exists, the (petitioners filed an application before the District Magistrate, Aligarh praying that the licence held by opposite party No 3 under the Cinematograph Act and the Rules framed thereunder be not renewed and be cancelled. The District Magistrate, after obtaining the opinion of the District Government counsel, rejected the application and in consequence opposite party No. 3 is continuing to hold a licence under the Cinematograph Act for the Ruby Theatres. Aggrieved by the order of the District Magistrate refusing to cancel the cinematograph licence held by opposite party No. 3, the petitioners have filed the instant writ petition praying for a writ of certiorari or any like writ or any other suitable order or direction quashing or cancelling the cinematograph licence granted or its renewal by opposite party No. 1. the District Magistrate, Aligarh in favour of opposite party No. 3. There is a general prayer also made for the issue of any other order, writ or directions which this Court might deem fit and proper to meet the ends of justice.

2. Learned counsel for the petitioners has contended that opposite party No. 1, the District Magistrate, Aligarh, has rejected the application made 'by the petitioners for cancellation of the cinematograph licence held by opposite party No. 3 in disregard of one of the conditions of the licence. The condition of the licence relied upon is in the following terms:

'This licence has been granted to (c) ............... and shall be terminated forthwith if the said (c)............... ceases toown, to hold on lease or to manage the said (a)...............'

It was urged by the learned counsel for the petitioner that since the petitioners by the decree had already become entitled to get possession over their half share of the site of the Ruby Theatres, it could not be contended that opposite party No. 3 was still owner of the plot on which the Ruby Theatres stood within the meaning of the condition of the licence extracted above. It was urged that the District Magistrate, Aligarh, had acted illegally in continuing to grant or renew the licence held by opposite party No. 3 in violation of the condition quoted above. In support of his contention that since the petitioners had obtained a decree for partition and separate possession of their half share in the land upon which the Ruby Theatres stood (sic), learned counsel placed reliance on observations contained in the decision of the Calcutta High Court in Sriram Pasrisha v. Jagannath Sen, AIR 1974 Cal 80. The material facts giving rise to the Calcutta decision relied upon by the, learnedcounsel were that the plaintiffs-respondents before the High Court instituted a suit for recovery of possession on eviction of the defendant-appellant, inter alia, on the ground that he was the owner of the premises in dispute and needed it for his presonal occupation and for that of the members of the joint family of which he was the Karta. One of the pleas raised in defence was that since the plaintiff was not the exclusive owner of the premises in question, he was not entitled to a decree for recovery of possession on the ground relied upon by him. The trial court and the first appellate court had decreed the plaintiff's claim. In the second appeal before the High Court of Calcutta, on behalf of the defendant it was again urged that since the plaintiff was not the 'owner' as contemplated by Section 13(1)(ff) of the West Bengal Premises Tenancy Act, the decree for ejectment and recovery of possession obtained by the plaintiff was not sustainable in Law. S.K. Dutta. J. who heard the second appeal, upheld the contention. Section 13 (1) (ff) of the West Bengal Act which came up for consideration before the High Court was in the following terms:--

'Where the premises are reasonably required by the landlord......... for hisown occupation if he is the owner or for the occupation of any person for whose benefit the premises are held.'

While interpreting this clause in the West Bengal Act, the learned Judge, who decided Sriram Pasrisha (supra), held as follows:--

'The landlord may not be the owner of the premises but if recovery of possession is sought for on the above ground, such landlord must be the owner of the premises. There is no qualifying word about 'owner' so that ownership as contemplated in ground (ff) must be its literal meaning and mean full and absolute ownership. It must the absolute ownership in quality and also full ownership in quantum.'

These observations were in the background of the particular statutory provision that was being construed. Ground (ff) which was being interpreted gave a right to the landlord in case he needed the premises in question for his own occupation to obtain an order for eviction of the tenant. It is evident that unless the landlord was entitled to possession and occupation of the premises in question, he could not have obtained exclusive possession thereof by eviction of the tenant. A co-owner of a rented premises is not the sole landlord and is not entitled to exclusive possession and consequently cannot seek to evict a tenant on the ground that he desires to occupy it. It was this consideration which led the learned Judge to takethe view that he took in Shriram Pasrisha (supra) in construing Clause (ff) of the West Bengal Act. No such consideration arises in the instant case for interpreting the term of the licence on which reliance has been placed by the learned counsel for the petitioners.

3. Learned counsel for the petitioners further placed reliance on the observations contained in a passage from Salmond on Jurisprudence which runs as follows:

'As a general rule a right is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have the same right vested in them. This may happen in several distinct ways, but he simplest and most obvious case is that of co-ownership......... It is not correct to say that a right owned by co-owners is divided between them, each of them owning a separate part. The right is an undivided unity, which is vested at the same time in more than one person. If two partners have at their bank a credit balance of 1,000, there is one debt of 1,000 owing by the bank to both of them at once, not two separate debts of 500 due to each of them individually. Each partner is entitled to the whole sum, just as each would owe to the bank the whole of the firm's overdraft. The several ownership of a part is a different thing from the co-ownership of the whole.........Co-ownership involves the undivided integrity of the right owned.

In the case of co-owners the title of the one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment.' (See Section 89 page 283).

4. Stress was laid by the learned counsel on the last sentence of the passage quoted above for the submission that even if the opposite party continues to be a co-owner of the Land forming site of the Ruby Theatres along with the petitioners, it has only a right to a restricted use and enjoyment thereof and if the petitioners do not desire the use of the land as a cinema house, they have a right to assert their choice which must be given effect to. If opposite party No. 3 is exercising its right of co-ownership in any manner inconsistent with the law or the terms under which it holds in co-ownership, the petitioners undisputably would have a right to obtain an injunction against opposite party No. 3 or such other relief as they might be entitled to. We are, however, not in the instant case, concerned with this question. We are concerned with the question as to whether opposite party No. 3 has ceased to own the site of the Ruby Theatres within the term of the licence relied upon by the learned counsel. Since opposite party No. 3 is undisputably co-owner, it is not possible to hold that it had ceased to own the site of the Ruby Theatres because its ownership though it may be only partial has not in any fashion come to an end over any portion of the land till such time as a partition by metes and bounds has been effected. In this view of the matter, in my judgment the District Magistrate, Aligarh, has not acted in disregard of the term of the licence quoted in an earlier part of this judgment.

5. The petition lacks merit and is hereby dismissed. In the circumstances of the case, parties shall bear their own costs.


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