Calcutta High Court (Appellete Side)
Rita Rai (Rumba) & Anr vs Prakash Tamang on 25 February, 2019
1
25.02.2019 CAN 10350 of 2018
Court No. 02
in
Item No. SL - 11 SAT 531 of 2018
snandy
(DISMISSED)
Rita Rai (Rumba) & Anr.
Vs.
Prakash Tamang
Mr. B.P. Subba, Advocate
Mr. Ujjwal Luksom, Advocate
......for the Defendant/Appellant
Mr. Krishnendu Sarkar, Advocate
Mr. Avijit Mondal, Advocate
......for the Plaintiff/Respondent
The instant second appeal is filed challenging the judgment and decree passed by the learned Additional District Judge, Kalimpong on September 25, 2018 in OC Appeal No. 2 of 2018 reversing the judgment and decree dated April 2, 2018 passed by the learned Civil Judge (Junior Division), Kalimpong in OC Suit No. 5 of 2012.
The plaintiff/respondent filed a suit for recovery of possession upon revocation of license. It is specifically asserted in the plaint that the father of the plaintiff permitted the father of the defendants/appellants to occupy four rooms purely on leave and license basis, as both of them were close friends. After the death of the father, the plaintiff did not renew such permissive occupation, as the license is not heritable but of a personal nature and, therefore, treated the defendants as illegal occupants in respect thereof.
However, the defendants/appellants took two-fold defence in the written-statement. Firstly, they claimed title by way of adverse possession and secondly, the license was irrevocable in view of Section 60 (b) of the Easement Act. To succinctly narrate and elaborate the defence taken by the appellants, what can be seen therefrom is that during their occupation they not only renovated the suit property periodically but also made two pucca constructions thereat and, therefore, such license became irrevocable in view of the provisions contained under Section 60(b) of the Easement Act. It is further asserted that they occupy the suit property to the exclusion of the owner and having invested sizeable amount to upkeep the 2 same and made further construction thereat, their possession became adverse to the original owner and, therefore, they are not liable to be evicted therefrom.
The trial court dismissed the suit solely on the ground that the moment permanent construction is made, provision of Section 60(b) of the Easement Act becomes attracted rendering the license irrevocable. The plea of adverse possession though considered by the trial court but was not answered extensively in view of the findings recorded on the aforesaid provision of law.
The plaintiff/respondent carried the said order to the first appellate court and asserted before the appellate court that the Easement Act does not apply to the State of West Bengal and, therefore, reliance upon the provisions contained under Section 60(b) of the said Act by the trial court is erroneous, illegal and contrary to the law. The appellate court reversed the judgment and decree of the trial court holding that the appellant cannot claim any special protection under Section 60(b) of the said Act as its applicability is not extended to the State of West Bengal.
The learned Advocate for the appellant submits that the plaintiff/respondent was well aware of the construction of the two rooms by the father of the appellants and since no steps were taken against such construction, it leads to inference that he agreed` for such construction by necessary implications. It is further contended that the appellate court wrongly held that the provisions contained under Section 60(b) of the Act is not applicable which would be evident from the fact that even if the Easement Act does not apply to the State of West Bengal, the applicability of the said Act is considered on the basis of justice, equity and good conscience. Since the provisions contained under Section 60(b) of the Act is based on equity, the appellate court erred in reversing the judgment of the trial court solely on the ground that the said Act does not apply.
We have given our anxious thought on the point urged before us but could not pursued ourselves to the interpretation 3 of the law as given by the learned Advocate for the appellants. It is no longer res integra that the provisions of the Easement Act has not been extended to the State of West Bengal. Even if we accept that irrespective of the fact that the said Act has no manner of applicability to this State, yet the said Act has felt its presence on the principle of justice, equity and good conscience. Furthermore, the equity is not an abstract term nor can be extended to the litigant as there is an express bar in the statute. The equity must be shown within the parameters of the law not in disregard thereto. The Apex Court in case of the Panchugopal Barua & Ors. Vs. Umesh Chandra Goswami & Ors. reported in AIR 1997 SC 1041, expressly and in categorical terms held that the moment the Easement Act is not applicable to a State, the provisions contained therein cannot be extended on the ground of justice, equity and good conscience in these words:-
13. The approach of the learned Single Judge in our opinion was erroneous. Once it was found that the Easement Act had no application to the State of Assam, the question of "clearing the way for Section 60(b) of the Act to operate" cannot at all arise. Of course, the principles of "justice, equity and good conscience" on which Section 60(b) of the Easement Act rests may apply in the facts and circumstances of a given case but that is not to say that though the Easement Act does not apply, provisions of Section 60(b) of the Easement Act still "operate". Since, the legislature did not intend the Act to apply to Assam, the learned Single Judge could not have defeated that intendment by holding that "the defendant of the present case was protected by Section 60(b) of the Act." It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary.
14. Even otherwise, the grant of relief to the respondent even on the principles of "justice, equity and good conscience" which doctrine appears to have been pressed into aid, was on the facts and circumstances of the case, not permissible. A court of equity, it should be remembered, must so act as to prevent perpetration of a legal fraud. It is expected to do justice by promotion of honesty and good faith, as far as it lies within its power. A party seeking relief in equity must come to the court with clean hands. In the present case, the respondent herein denied that he was a licencee of the 4 appellant or had been given permissive use to raise temporary structures on the suit land for a period of two years. He set up a `title' to the suit land as a `prospective purchaser' on the basis of an `oral agreement to sell in himself claiming to have occupied the suit land in his capacity as a "prospective purchaser". All the three courts, including the High Court, found that plea of the respondent to be `false' in the suit for specific performance filed by the respondent. S.L.P. against the judgment and decree, was also dismissed by this Court. How then could the respondent be found entitled to any relief in equity, when his defence was based on falsehood? We have noticed the conduct of the respondent in denying the title of the appellant herein and putting forward a plea, which has been concurrently found, by all the courts to be false.
He, therefore, certainly did not come to the Court with clean hands. Thus, even if it be assumed for the sake of argument, that the principles of `justice, equity and good conscience' underlying the provisions of Section 60(b) of the Easements Act, could be attracted in a given case in the State of Assam where the Easements Act had not been extended, the conduct of the respondent disentitled him to any relief on the basis of `equity, justice and good conscience'. The reliance placed by the High Court on the Division Bench judgment of the Lahore High Court in the case of Jagat Singh and others vs. District Board (supra) is misplaced. Indeed in the Province of Punjab, the Easements Act was not in force and Tekchand, J. speaking for the Curt invoked the common law doctrine of `equity, justice and good conscience', which the learned Judge found to be substantially the same as that contained in Section 60 of the Easements Act, to decide the Letters Patent Appeal. On facts, it was found that the land in dispute was being actually used by the District Board for the purpose for which it had been given to it on licence. It was also established on facts that more than 10 years ago, the defendant had erected a boundary wall and a pucca gate at a considerable cost and that those works were of a permanent character. It was in this fact situation that Tekchand, J. held that even if the Easements Act was not applicable to the Province of Punjab, it was not open to the appellant to revoke the licence, on their option and resume the land, since construction of permanent character had been build by the defendant acting upon the licence granted by the appellant to him on principles of `justice, equity and good conscience'. The fact situation in Jagat Singh's case (supra) was, thus, totally different. The licencee therein had raised a permanent construction acting upon the licence after incurring expenditure for raising the permanent construction and it was for that reason that the court held that the licence could not be revoked at the sweet will of the 5 licensor. In the present case, the respondent has categorically denied to be a licencee of the appellant or that he had raised any construction acting on the licence. He was, thus, not entitled to any relief in the second appeal. The judgment of the High Court under the circumstances cannot be sustained. This appeal succeeds and is allowed. The judgment and order of the High Court are hereby set aside and the judgment and decree of the Trial Court, as confirmed by the First Appellate Court, are restored. We, however, make no order as to costs.
It appears to us that the trial court was swayed by a previous judgment of the Supreme Court rendered in case of Ram Sarup Gupta (Dead) Vs. Bishun Narain Inter College & Ors. reported in AIR 1987 SC 1242 wherein it is held that once the person has incurred expenditure by making construction of permanent nature on the strength of the license it renders the license irrevocable. What can be seen from the said judgment is that the construction of permanent nature must be made in furtherance to the license so granted and not de hors to the license. However, we need not have to delve deeper into the question for the simple reason that the Apex Court in a later decision rendered in Panchugopal Barua (supra) have laid down that in view of the inapplicability of Easement Act to a particular State, the benefit and/or advantage under Section 60(b) of the said Act cannot be extended in the guise of equity, justice and good conscience. Even if we presume that the aforesaid expressions i.e. "equity, justice and good conscience"
imbibe within itself, the concept of Section 60(b) of the Act it does not improve the case of the appellant from the very fact that he was unable to produce any scrap of paper showing such expenditure to have been made. However, the inspiration is drawn from the deposition of the plaintiff's witness in the cross-examination where he admits that the defendants constructed two rooms and there was no steps taken against them. It cannot improve upon the fact that the appellant acquires unevictable right as the license become irrevocable by virtue of the said provision. We can lend support from the observations made by the Single Bench of this court in Satyendra Nath Basu Roy Vs. Monoj Biswas (SA 166 of 2012 decided on March 21, 2014) where in it is held:-6
Section 60(a) of the said Act of 1882 says that a licence may be revoked by the grantor unless it is coupled with a transfer of property and such transfer is in force. In the instant case, the materials on record do not indicate that there was any transfer of the demised property in favour of the defendant/respondent. Section 60(b) stipulates that a licence may be revoked by the grantor unless the licensee acting upon the licence has executed a work of permanent character and incurred expenses in the execution. Since in the instant case, there could not have been any sub-letting and/or sub-division and/or assignment and/or transfer of the demised property contrary to the provisions of Clauses 7 and 8 of the said lease deed the provisions of the said Section 60(b) are also not applicable, particularly, when there has been no transfer of property by the plaintiff/appellant in favour of the defendant/respondent. The decision reported at 59CWN 610 as referred to by the learned Senior Advocate for the plaintiff/appellant and as already mentioned above, may be noted in this regard.
Mere inaction on the part of the plaintiff/respondent to take action against the alleged construction made by the appellants or their predecessor does not ipso facto render such construction to have been done acting on the licnese which is one of the pivotal factors to attract the provisions of Section 60(b) of the Act. Even if we hold so, we cannot forget that the moment the Easement Act is not extended to the State of West Bengal, the provisions under Section 60(b) of the Act cannot automatically be attracted as held by the Apex Court in Panchugopal Barua (supra).
We, therefore, do not find any substantial question of law involved in the instant appeal.
The appeal being SAT 531 of 2018 thus stand dismissed.
In view of the dismissal of the appeal itself the connected application being CAN 10350 of 2018 also stand dismissed.
(Hiranmay Bhattacharyya, J) (Harish Tandon, J.) 7