In Focus

‘Occupation’ is not synonymous with ‘possession’

By Gajanan Khergamker

Possession is a substantive right or interest that exists and has legal interest and advantages apart from the true owner’s title and where a person has, in his own right, and not merely as representative of another, such control over immovable property as to be able to exclude others from it and has the intention of exercising such power of exclusion. Such a person can be said to be in possession of it.
Occupation and possession are not synonyms. Possession means the physical possibility of a person in dealing with a property he likes and not physical possession, occupation coupled with animus possidendi i.e. the mental act of holding the subject of possession to the exclusion of the others, constitutes legal possession.

Issues like whether or not, the act of the possession is on behalf of the legal owner or in opposition to his title are those matters which can be inferred and not proved orally by any witness. The nature of possession and the continuance must depend upon the character and condition of the land in question.

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. Apart from the authority, in principle, possession in fact required not merely an “animus possidendi” but a “corpus possessionis” viz. some visible state of affairs in which the animus possidendi finds expression.

Legal position as regards, occupation and possession, assumes greater importance in Rent Control Laws. The word ‘occupy’ is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the court may presume that he has ceased to occupy the building or abandoned it.

If the building is let out for business or commercial purpose, complete cessation of the business/commercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building.

The Honorable Apex Court, in Ram Dass v. Davinder, highlighted the distinction between the terms “possession” and “occupy” in the context of Rent Control Legislation in the following words: “The term ‘possession’ and ‘occupy’ are in common parlance used inter-changeably. 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.

Rent-control legislations are the outcome of paucity of accommodations. Most of the rent control legislation, 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… consistently with what has been mutually agreed upon, the tenant is expected to make useful use of 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 and continued in juridical possession thereof. The act protects the tenant 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.”

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