1. These appeals are directed against interim injunctions restraining the appellant/defendant from interfering except by due process of law with the peaceful possession and enjoyment of cabins bearing Nos. 1A and 2B, 1st floor, Harjivandas Estate, 809, Dr. Ambedkar Road, Dadar, Bombay-14.

2. The 1st floor aforementioned consists of different cabins and a waiting room. Defendant has permitted certain doctors including the plaintiffs to make use of separate cabins the waiting room to be used by the patients of all. The use of the facility is regulated by terms set out in letters addressed by the doctors to the defendant. Dr. Rao was using Cabin 2-B since 11 September 1972 and Dr. Pradhan was using Cabin 1-A since 10 July 1972. On 2 May 1982, the two plaintiffs complaining of an attempt to dispossess them instituted separate suits against defendant. Ad interim reliefs injuncting defendant from interfering with the plaintiff's possession were issued and he was called upon to show cause why the same should not be made operative until disposal of the suits. Defendant showed cause and after a hearing the ad interim injunctions were made absolute. Defendant contends that the two plaintiffs were not in possession of the cabins. They were merely permitted to make use of the cabins under certain conditions for different hours of the day. That permission had been revoked prior to 1 May 1982 and in any case expressly so in writing on 3 May 1982. They had not the slightest right to the continued user of the cabins. The ad interim injunctions had to be vacated and the motions taken out dismissed. The plaintiffs contended that they were in lawful possession and the attempted dispossession had been thwarted just in time. Defendant could not without recourse to law dispossess or prohibit them from using the cabins. The ad interim injunctions had to be made operative until disposal of their suits.

3. Mr. Chinoy for the appellant-defendant contends that plaintiffs' user of the cabins was under permission granted by his client. Such user could not be equated with possession. Plaintiffs' access to the cabins was restricted in various ways. It was defendant who was in possession throughout. After the revocation of the plaintiffs' licence, they had no right to visit or use the cabins. The plaints did not disclose the legal character which plaintiffs sought to vindicate. A bare licensee, (whose licence had been revoked) if plaintiffs could be so described had no right to a protective order permitting the doing of that which could be done during the subsistence of the licence. Plaintiffs' Counsel Mr. Makhija replies that the fact of his clients' occupation is indisputable. This being the base they were entitled to the relief granted by the trial Court. Their entry into the cabins was lawful and assuming that they were trespassers consequent to the revocation of the licence, they could not yet be evicted except by recourse to law. Defendant was taking the law into his hands by trying to dispossess them.

4. A proper appraisal of the points arising for decision requires the setting out of the material portion of the letters setting out the transaction between parties:—

(Letter dated 10-7-1972 of Dr. Pradhan).

1. The said cabin will be used by me only for my medical profession, and for no other purpose. I will be entitled to permit my said assistant to use the said cabin jointly with me.

2. The use permitted to me is for a period from 1st September, 1972 to 31st August, 1975 with an option to me to extend this period till 31st August, 1978, for limited period of 10 hours every day between 7 A.M to 8 P.M with a break of one hour as may be mutually agreed upon according to convenience of both the parties and I will have no right to use the said cabin for the rest of the time of the day.

3. The said cabin will be provided with Godrej latch one key of which will be given to me and one key will be kept with you.

4. The main entrance will be locked by your peon who will open the consulting rooms before 7 A.M and close after 8 P.M

5. The passages and space other than the cabin will be used by my patients and visitors in common with the patients and visitors of the other Consultants occupying other cabins.

6. The electric light charges, water charges, sweeper's salary and salary to peon will be borne and paid by you.

7. I shall pay to you a monthly compensation of Rs. 375/- to be paid in advance by 5th of each month.

8. The entire premises are furnished and cabin is also provided with necessary furniture and fixtures suitable for use of medical practitioner. I will take proper care of the same.”

(Letter dated 11-9-1972 of Dr. Mrs. Rao).

“1. The said cabin will be used by me only for my medical profession, and for no other purpose. I will be entitled to permit my paid assistant to use the said cabin jointly with me.

2. The use permitted to me is for a period from 1st September, 1972 to 31st August, 1975 with an option to me to extend this period till 31st August, 1978 for limited period of 10 hours every day between 7 A.M and 8 P.M with a break of one hour as may be mutually agreed upon according to convenience of both the parties and I will have no right to use the said cabin for the rest of the time of the day.

3. The said cabin will be provided with Godrej latch one key of which will be given to me and one key will be kept with you.

4. The main entrance will be locked by your peon who will open the Consulting rooms before 7 A.M and close after 8 P.M

5. The passage and space other than the cabin will be held by my patients and visitors in common with the patients, visitors of the other Consultants occupying other cabins.

6. The electric light charges, water charges, sweeper's salary and salary to peon will be borne and paid by you.

7. I shall pay to you a monthly compensation of Rs. 350/- to be paid in advance by 5th of each month.

8. The entire premises are furnished and cabin is also provided with necessary furnitures and fixture's suitable for use of medical practitioner I will take proper care of the same.”

5. Do these mean that plaintiffs are not in possession or are at the most licensees under a bare licence? It is argued that plaintiffs had a bare right to use the cabins and fixtures at appointed hours of the day. The duration of the licence was definite. The keys of the cabin were not retained exclusively by the plaintiffs. One set was retained by defendant. Defendant was in control of the main entrance, passages and space other than the cabins concerned, were to be used by patients and visitors to all the cabins. Light, electricity, conservancy and service charges were to be borne by defendant. The cabins were equipped with furniture and fixtures suitable for the use of medical practitioners. Plaintiffs were bound to take care of the same. For these amenities plaintiffs were to pay the agreed monthly compensation. The minimum that is indisputable from the above terms, is, that plaintiffs' entry into the cabins was lawful. The submission is that this lawful induction does not confer any right on the plaintiffs to continue the user of the cabins against the wishes of the defendant. Defendant's refusal to renew the permission was a clear revocation of the licence. Therefore, plaintiffs were trespassers not entitled to an order of protection. In support of the first part of the argument, Mr. Chinoy has referred me to the following passage from D.H Maniar v. Raman, (1976) 4 SCC 118 : AIR 1976 SC 2340:

“A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue occupation of the premises. Such a person by no stretch of imagination can be called a licensee.”

6. The second part of the argument is sought to be based upon this portion of Maganlal v. State of Maharashtra, 1971 Mah. L.J 57:—

“In the case of a licensee whose licence has been revoked, the position is that even though he may have actual, possession of the property in question, that possession is not juridical possession and is not protected by law…It cannot be said that a licensee whose licence has been revoked and is not protected by law has the right not to be dispossessed except by due process of law.”

7. The passage from Maniar's case (supra) occurs in the context of dealing with a claim to the benefits of section 15A of the Bombay Rent Act by a person, the licence in whose favour was not subsisting on February 1, 1973. The passage States the position of a licensee holding over. It is no authority to hold that such a person can be evicted without recourse to the legal process. The passages from Maganlal's case (supra) certainly support Mr. Chinoy's argument. The Supreme Court in Mohanlal v. State of Punjab, 1970 All India Rent Control Journal 95, has gone to the extent of laying down that under our jurisprudence even an unauthorised occupant, can be evicted only in the manner authorised by law. This, it is observed, “is the essence of the rule of law”.

8. It was contended that defendant was in possession of the premises as a Whole. The cabin holding doctors could not have access to their cabins unless the main entrance which was in defendant's possession was opened. The passages which were availed of by the doctors, their visitors and patients were in his possession. Defendant even had a key to the Godrej latch to the cabin doors. By the interim injunction plaintiffs were seeking to exclude him from access to the cabins. This, defendant could lawfully resist and the precedent relied upon is Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188 : AIR 1977 SC 619. In this case, it was laid down that a true owner had every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and had not accomplished his objective. The same authority goes on to say that the true owner cannot oust the trespasser if the latter has accomplished his possession to the knowledge of the true owner. The ingredients pressed into service to show defendant's possession are more consistent with the concept of control. Having control or dominion over a place is in a sense being in possession thereof. But that may not be coupled with a right to drive out another there by virtue of a lawful induction. Reference is made to Munshi Ram v. Delhi Admn., AIR 1968 SC 702 in support of defendant's right to evict plaintiffs. What the passage (see para 14) relied upon by defendant's counsel means is that it is only a trespasser in settled possession who cannot be evicted except in due course of law. Stray or intermittent acts of trespass do not give the trespasser the privilege of compelling the true owner to take recourse to a Court of law. The judgment goes on to say:

“The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force.”

9. These observations work to the benefit of the plaintiffs. They were lawfully inducted into the cabins. During the specified hours they alone had the use of the cabins. The user began in the 1970s and continued without obstruction till April 1982. A consideration was paid to the defendant for the privilege. This access and user (to put it no stronger) cannot be equated to the position held by one admitted to a theatre or cinema to watch a show. It may be argued that the duration of the user or stay, on the premises has no bearing on the status of the occupant. Settled possession vis-a-vis a trespass has been thus explained by the Supreme Court in Puran Singh v. State of Punjab, (1975) 4 SCC 518 : AIR 1975 SC 1674 (P. 1681):—

“Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:

i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature possession of the trespasser would however be a matter to be decided on facts and circumstances of each case;

iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner.”

10. Therefore, duration is a factor for a protective order.

11. Two more of the authorities referred to remain to be considered. (1989) 4 SCC 603 : AIR 1990 SC 673 deals with the question as to whether an agent's occupation can ever be said to be on his own account. Whatever else the relationship between parties, they are not in the position of Agents and Principal. Last is Chanda Lal v. Municipal Corporation of Delhi, AIR 1978 Delhi 174. To a great extent it supports the defendant. But it seems to be in conflict with the decisions of the Supreme Court above referred to.

12. To recapitulate, plaintiffs have been lawfully inducted into the suit cabins. They have not surrendered the cabins to defendant. Defendant's attempt to evict them was foiled at the 11th hour. Plaintiffs' long standing access to and user of the suit cabins deserve to be protected. This is because the suits raise serious questions for trial. The appeals fail. Having regard to their raising issues not easy to answer, I leave the costs to be costs in the suits.

Appeals dismissed.