Allahabad High Court
Romila Bhatnagar (Now Died) And 2 Others vs Radha Soami Satsang Sabha And 3 Others on 9 December, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 17.11.2020 Delivered on 09.12.2020 Court No. - 10 Case :- SECOND APPEAL No. - 478 of 2020 Appellant :- Romila Bhatnagar (Now Died) And 2 Others Respondent :- Radha Soami Satsang Sabha And 3 Others Counsel for Appellant :- Ramendra Asthana,Vijay Kumar Ojha Counsel for Respondent :- Anant Vijay with Case :- SECOND APPEAL No. - 479 of 2020 Appellant :- Smt. Romila Bhatnagar (Now Died) And 2 Others Respondent :- Radha Soami Satsang Sabha And 3 Others Counsel for Appellant :- Ramendra Asthana,Vijay Kumar Ojha Counsel for Respondent :- Anant Vijay Hon'ble Rohit Ranjan Agarwal,J.
1. These two connected appeal filed under Section 100 of the Code of Civil Procedure arise out of judgment and decree dated 14.08.2020, passed by Additional District Judge, Court No. 13, Agra, in Civil Appeal No. 63 of 2015 and Civil Appeal No. 64 of 2015, decided by common judgment and decree passed by Additional Civil Judge (Senior Division), Court No. 3, Agra in Original Suit No. 570 of 2004 and Original Suit No. 253 of 2007.
2. plaintiffs-appellants filed Suit No. 570 of 2004 for the relief of permanent prohibitory injunction, restraining defendants-respondents from interfering in their peaceful possession or dispossessing them from property in dispute, as well as relief for declaration that they be declared owner of the property in possession. According to plaint averment, plaintiff no. 2 after retirement from service as Chief Engineer, U.P. Electricity Board, being follower of Radha Soami Faith, Dayal Bagh, Agra and defendant-respondent no. 1, who was owner in possession of the very land in village Jaganpur Mustaqil (now under Nagar Panchayat), Dayal Bagh was interested to sell the properties after carving out small plots for residential purposes, and one such plot was purchased by plaintiffs. The Sixth Religious Leader of Radha Soami Faith, Dayal Bagh, Huzur Mehta Ji Maharaj had declared to sell land to purchasers and granted his blessings on 08th February, 1973 as "owners" to them. According to averment made in plaint, defendants-respondents in the year 1972-73 had agreed to transfer the land to plaintiffs for sale consideration of Rs.5,473/- @ Rs.13/- per square yard, excluding development charges. The total amount of Rs.11,678/- was paid by plaintiffs. Several plots were carved out, since there was a temporary ban on transfer of property w.e.f. 12.07.1972, defendant-respondent no. 1 could not execute the sale deed, but possession in part performance, of plot no. 30, Dayal Nagar, measuring 421.07 square yard was delivered to plaintiffs in 1973 for agreed sale consideration. The construction over the said plot was completed in September, 1974 and plaintiffs are in peaceful possession of the same.
3. The defendant-respondent nos. 1, 2 and 3 contested the aforesaid suit and filed their separate written statement, denying the averments of the plaint. Further, in the additional pleas, it was averred that defendant-respondent no. 1 is the owner and bhumidhar of Khasra Plot No. 232, having an area of 5 bighas and 8 biswas of Village- Jaganpur, Tehsil and District- Agra. It was around the year 1971-72 that Sabha was not able to use the land and was considering selling it, as large part of land was occupied by wild "berries" and pond, as several Satsangies were settling near the Dayal Bagh to pursue their religious objects and defendant-respondent no. 2 also approached defendant-respondent no. 1 on 15.07.1972, and at that relevant point of time, there was a ban on transfer of urban property, a resolution was passed on 30.11.1972 that plot in question may be sold to defendant-respondent no. 2 for achieving objects of Sabha for establishing colonies. However, this resolution was in nature of declaration of intent and was never acted upon. It was decided that pond on the plot may be filled up and the land cleared and measured and boundary wall be constructed by defendant-respondent no. 2.
4. As defendant-respondent no. 2 exceeded its authority and carved out plots in the land and allotted them to Satsangies, members of the society, without having any right, title or authority and such allottees started raising construction without consent, knowledge or permission of defendant-respondent no. 1. When this fact came into the knowledge of defendant-respondent no. 1, it was decided that instead of evicting them from occupation, possession be regularized and a letter was issued to all the occupants of the plots conveying the decision with draft of the license deed. The final licence deed was executed between plaintiffs and defendant-respondent no. 1 on 10.08.1976 and since then they are in occupation. It was also averred that in the year 1996 in order to ensure the attainment of object of Sabha, another licence deed was executed by plaintiff no. 1, who also nominated her husband, plaintiff no. 2 as the persons who would be entitled to occupation after plaintiff no. 1. Further, for the last 30 years, plaintiffs-appellants had never challenged the arrangement that was accepted and acted upon and their case has become time barred. While the possession of the plaintiffs-appellants is permissive under licence and a licencee cannot claim adverse possession against licencor.
5. The plaintiffs-appellants filed another suit no. 253 of 2007 against defendants-respondents for a decree of specific performance for contract of sale for executing registered sale deed in respect of plot in suit, and in the alternative if the decree for specific performance was not granted, then a decree for refund of Rs.11,678/- with interest @ 18% per annum from 05.08.1978 upto its payment to plaintiffs. This suit was also contested by defendants-respondents and written statement was filed, denying the plaint allegation.
6. In the additional pleas, defendants-respondents had taken the same stand which was taken by them in earlier suit filed by plaintiffs-appellants in the year 2004. It was further averred in the written statement that plaintiffs-appellants are making request to execute deed of sale in the present suit, while there had been no agreement to sale with defendants and the said fact had already been intimated to plaintiffs-appellants on 13.04.2002 and 26.10.2002. Further, it was averred that plaintiffs-appellants were aware of these facts and circumstances since the beginning, when first licence was executed in year 1976 and again on 01.10.1996, when second licence was executed, but plaintiff remained quite and acted upon the same. The contract alleged by the plaintiff though not admitted by defendants-respondents came to end by novation under Section 62 of the Indian Contract Act. Lastly, it was averred that the present suit was barred by Order 2, Rule 2 C.P.C.
7. As issues in both Suit Nos. 570 of 2004 and 253 of 2007 were inter-connected, thus by order dated 18.03.2010, trial court proceeded to decide both the suits by common order, and Original Suit No. 570 of 2004 was made the leading case.
8. Following issues were framed in Suit No. 570 of 2004:
"1. क्या वादीगण दावी सम्पत्ति के मालिक काबिज हैं?
2. क्या वादीगण प्रतिवादीगण से दौरान वाद व भविष्य में मुवलिग 30 हजार रुपये प्रतिमाह की दर से क्षति पूर्ति व उस पर 2 प्रतिशत प्रतिमाह की दर से ब्याज पाने के अधिकारी है?
3. क्या प्रतिवादीगण द्वारा दावी सम्पत्ति के वादीगण द्वारा उपयोग व उपभोग के सम्बन्ध में अधिरोपित नियम रैगुलेशन रिजोल्यूशन उपनियम संविदा निर्देश पत्र व्यवहार ट्रान्जेक्शन्स प्राकृतिक न्याय मूलभूत अधिकार व प्रचलित विधि के विपरीत है?
4. क्या वादी का वाद कालबाधित है?
5. क्या वादी का वाद विबन्धन एवं मौन स्वीकृत के सिद्धान्त से बाधित है?
6. क्या वादी का वाद धारा 70 कोआपरेटिव सोसायटी एक्ट के प्रावधान से बाधित है?
7. क्या वादी द्वारा वाद का मूल्यांकन कम किया गया है?
8. क्या वादी का वाद धारा 10 सी0पी0सी0 के अन्तर्गत स्थगित किये जाने योग्य है?
9. क्या वादी वाद आवश्यक पक्षकारों से असंयोजन से दूषित है?
10. क्या वादी सं0 2 इस मामले में अनावश्यक पक्षकार है?
11. वादी किस अनुतोष को पाने का अधिकारी है?
12. क्या वादी का वाद विधिक रुप से पोषणीय अथवा नहीं।
13. क्या वादिनी रोमिला भटनागर को अपनी समस्त सम्पत्ति को वसीयत करने का कोई अधिकार प्राप्त नहीं था?"
9. While in Suit No. 253 of 2007, following issues were framed:
"1. क्या प्रतिवादी संख्या-1 द्वारा विवादित सम्पत्ति का विक्रय करार प्रतिफल धनराशि 11678/- रुपये प्राप्त कर लिया है? यदि हाँ तो प्रभाव?
2. क्या वादी करार के अनुसार विक्रय पत्र निष्पादित करने के लिये तैयार एवं तत्पर रहा?
3. क्या वादी का कब्जा धारा 53 ए0टी0पी0एक्ट के प्रावधानों से संरक्षित योग्य नहीं? यदि हाँ तो प्रभाव?
4. प्रतिवादी पत्र के अनुसार वादी प्रतिवादी सं0 1 का अनुज्ञाप्तधारी है?
5. क्या वाद काल वाधित है?
6. क्या वाद में पक्षकारों के कुसंयोजन का दोष है?
7. क्या वाद आदेश 2 नियम 2 सी0पी0सी0 से बाधित है?
8. क्या वाद के विचारण की अधिकारिता इस न्यायालय को नहीं है?
9. क्या वादी किसी अनुतोष को पाने का अधिकारी है?
10. क्या वादिनी रोमिला भटनागर को अपनी समस्त सम्पत्ति को वसीयत करने का कोई अधिकार प्राप्त नहीं था?"
10. The court of first instance after considering the oral and documentary evidence, decided Issue No. 1 of Suit No. 570 of 2004 along with Issue Nos. 1 and 4 of Suit No. 253 of 2007 and recorded categorical finding that PW-2 in his oral testimony had stated that there was an oral agreement with defendant-respondent no.2 and till time of construction of the house, it was not known to whom the land belong, and it was in the year 1975 that for the first time, he came to know that owner of the land was defendant-respondent no. 1. Further, after coming to know of the said fact, no notice was given to defendant-respondent no. 2. The trial court held that plaintiff-appellant failed to prove that he is owner in possession and had given Rs.11,678/- in pursuance to agreement to sale. Similarly, Issue no. 13 of Suit No. 570 of 2004 was decided along with Issue No. 10 of Suit No. 253 of 2007 against the plaintiff.
11. The court of first instance on 30.05.2015 dismissed both Original Suit No. 570 of 2004 and 253 of 2007 by common order. Against the said order, plaintiff-appellant filed two Civil Appeal No. 63 of 2015 and Appeal No. 64 of 2015, which were also decided by common judgment and order dated 14.08.2002. Against the said judgment, present appeals have been preferred by the appellants.
12. Sri Ramendra Asthana, learned counsel appearing for appellants submitted that plaintiffs-appellants had paid an amount of Rs.11,678/- towards sale consideration and development fee in various installments to defendant-respondent no. 1 and now they cannot whittle out the effect of these deposits merely by saying that payments have not been made to them and defendant-respondent no. 2 is not their agent. It is next contended that courts below have gravely erred in law by not holding that appellants are entitled to protection of Section 53A of Transfer of Property Act, as the sale consideration was passed on by plaintiffs to defendants. The courts below failed to consider that plaintiffs-appellants had got the land on 18.02.1973 as blessings from Sixth Religious Guru Huzur Mehta Ji Maharaj and after payment of sale consideration of Rs.11,678/-, which was part performance as per Section 53A of Transfer of Property Act but benefits have not been passed upon.
13. It was next contended that the courts below had neither granted the relief of specific performance nor relief of refund of earnest money with interest, though payment of sale consideration by plaintiff has been admitted to defendants, which is hit by Section 20/21 of Specific Performance Act, 1963. As the entire sale consideration was passed on to defendant-respondent nos. 1 and 2, the intention of plaintiff was clear as she was always ready to perform her part of contract within meaning of Section 16(c) of Specific Relief Act.
14. It was then urged that as the defendants-respondents had alleged that they have granted irrevocable licence to plaintiffs-appellants, thus, under provision of Section 60(b) of the Easement Act, 1882, the suit of the plaintiffs deserve to be decreed.
15. Lastly, it was contended that defendants are estopped from taking stand that no sale has taken place when once they had accepted sale consideration.
16. Sri Asthana placed reliance of Apex Court judgment in case of Aloka Bose vs. Parmatma Devi and others, (2009) 2 SCC 582. Paras 23 and 24 have been relied upon, which are extracted hereasunder:
"23. The trial court as well as the Division Bench of the High Court on the analysis of the materials in the form of oral and documentary evidence concluded that the vendee had performed her part by paying the earnest money and sent a notice conveying her willingness and readiness to pay the balance of sale consideration. The said notice was acknowledged by the defendant. The clauses in the agreement clearly show that the vendor had to perform and fulfill the terms of agreement by executing the sale deed on receipt of the consideration. We have already adverted to the fact that the vendee had performed her part of the contract.
24. The trial court and the Division Bench also concluded that the plaintiff had fulfilled the conditions as stated in Section 16(c) of the Specific Relief Act and in that event the plaintiff is entitled to decree for specific performance which was rightly granted by the trial Court. Though learned counsel for the appellants pointed out that the claim of the plaintiff that she was put in possession of a portion of the suit property in part- performance was not accepted by the trial court, in the light of the categorical findings about the validity of Ext. 2 and satisfactory proof of other conditions for granting the decree for specific performance, we are unable to accept the said contention. On the other hand, we agree with the conclusion arrived at by the Division Bench and hold that the agreement of sale was enforceable and the trial Court has rightly granted decree which was affirmed by the Division Bench of the High Court."
17. Reliance has also been placed upon a decision of this Court in case of Azeemullah vs. Saleemullah and others, 2013 (3) ARC 723. Paras 20, 21 and 22 have been relied upon, which are extracted hereasunder:
"20. Section 60 of the Indian Easement Act provides "A licence may be revoked by the grantor , unless-
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution"
21. The above section embodied two exceptions to the general rule that a licence is revocable . The instant case is covered by Clause (b) of Section 60 which is based on the principle of estoppel by acquiescence when the licensee acting upon a licence has executed a work of permanent character and incurred expenses in the execution the licence can not be revoked by the grantor. The man who stands by and allows another person to build on his land, in the belief that he has power or authority to do so, and incurs expenses in such building, can not turn round and claim the removal of such building.
22. In order to obtain benefit of Section 60 appellant has to prove firstly that the land was given to him on licence and that he has raised permanent construction and incurred huge expenses."
18. Sri Navin Sinha, learned Senior Counsel assisted by Sri Ujjawal Satsangi, learned counsel appearing for respondent no. 1 submitted that in the earlier suit filed by plaintiff-appellant in the year 2004, no prayer for executing the sale deed was made and in para no. 9 of the plaint, it was mentioned that constructions was completed in September, 1974. However, after written statement was filed by defendants-respondents, disclosing the fact that defendant-respondent no. 1 was owner and bhumidhar of Khasra Plot No. 232 and resolution was passed on 30.11.1972 that plot in question may be sold to defendant-respondent no. 2 for achieving the object of Sabha of establishing colonies, but this resolution was in nature of declaration of intent and was never acted upon. Defendant-respondent no. 2 was only asked to construct boundary wall and get the land levelled, but defendant no. 2 exceeded its authority and carved out plots and allotted them to various Satsangies, members of society without having any right, title or authority and such allottees raised construction without permission of defendant no. 1. In order to regularize their occupation, letter was issued to occupants with copy of draft licence deed and after the finalisation, licence deed was executed between plaintiff no. 1 and defendant no. 1 on 10.08.1976, that second Suit no. 253 of 2007 was filed.
19. It was next contended that plaintiffs-appellants are bound by licence deed executed in the year 1976 and, thereafter, in the year 1996. Para 7 of the licence deed of the year 1976 provides for payment of premium of Rs.13/- per square yard, to be paid to licencor by licencee along with development cost which together comes to Rs.11,678/- in all, and Rs.1 per year as licence fee. Out of the amount of Rs.11,678/-, plaintiff-appellant had paid Rs.1,990/- and also Rs.3,500/- at the time of execution of deed and balance amount of Rs.6,188/- was to be paid in 12 monthly installments of Rs.500/- each, commencing from September, 1976.
20. Sri Sinha next contended that no oral agreement to sale was executed in the year 1972-73, and, thus, question of protection of Section 53A of Transfer of Property Act does not arise as the plaintiff-appellant herself had executed the licence deed with defendant-respondent no. 1 in the year 1976. Thus, courts below had rightly decreed the suit against plaintiff-appellant for declaration as well as for specific performance as it is evident that plaintiff-appellant failed to establish that any oral or documentary agreement was executed between the parties for selling the land and it was only the licence deed which was executed in the year 1976 and thereafter in the year 1996.
21. Replying to the argument raised by appellants as to the benefits of provisions of Sections 60(b) of the Indian Easement Act, he submitted that construction admitted to plaintiffs had been made by September, 1974, while the licence deed was executed on 10.08.1976, thus, benefit as contemplated under Section 60(b) cannot be passed on to plaintiff-appellant.
22. I have heard learned counsel for the parties and perused the material on record.
23. These two connected appeal arise out of judgment and decree dated 14.08.2020, passed by lower appellate court, decreeing the suit against plaintiffs-appellants.
24. Learned counsel for the appellants has mainly raised two grounds. Firstly, that the courts below have gravely erred in law by not complying provisions contained in Section 53A of Transfer of Property Act, in view of fact that plaintiff-appellant was always ready and is still prepared to perform his part of contract under Section 16(c) of the Specific Relief Act, and the judgment and decree of the courts below are hit by Section 20/21 of the Specific Relief Act as neither relief of decree of part performance of contract was passed nor decree for refund of sale consideration has been passed.
25. The second issued raised is that provisions of Section 60(b) of the Easement Act, 1882 is attracted and both courts below have not decreed the suit of plaintiff-appellant.
26. Coming to the first issue raised by appellants as far as applicability of Section 53A of Transfer of Property Act is concerned, what is to be seen is that Section provides for a shield of protection to proposed transferee to remain in possession against original owner who has agreed to sale, and if proposed transferee satisfies other conditions, the protection is available as shield, only against the transferor.
27. The following postulates are sine qua non for basing a claim on Section 53A of the Transfer of Property Act:
(i) There must be a contract to transfer for consideration any immovable property.
(ii) The contract must be in writing, signed by the transferor, or by someone on his behalf.
(iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
(iv) The transferee must in part performance of the contract take possession of the property, or of any part thereof.
(v) The transferee must have done some act in furtherance of the contract.
(vi) The transferee must have performed or be willing to perform his part of the contract.
28. In the present context, plaintiff-appellant claimed that on 08.02.1973, Sixth Religious Leader of Radha Soami Faith, Dayal Bagh, Huzur Mehta Ji Maharaj had declared to sell land to purchasers and had granted his blessings. It was pursuant to which that an amount of Rs.11,678/- which included the cost of land @ Rs.13/- per square yard as well as development charges were paid by plaintiff-appellant, thus, Section 53A of Transfer of Property Act was attracted, on part of plaintiffs as they performed their part and were put in possession of Plot No. 30, Dayal Nagar, measuring 421.07 square yard, while construction was completed in September, 1974. On the basis of these averments, plaintiffs were entitled for a decree of declaration and permanent injunction.
29. When the first Original Suit No. 570 of 2004 was contested by defendant-respondent no. 1 and it was stated that a licence deed was executed between plaintiffs and the defendant no. 1 in 1976, that another Original Suit No. 253 of 2007 was filed for relief of specific performance and in alternative, a decree for refund was claimed.
30. The plaintiffs-appellants had never denied the factum of execution of licence deed in their favour by defendant-respondent no. 1 on 10.08.1976 and another licence deed of the year 1996. Once plaintiffs-appellants themselves had entered into the licence deed in the year 1976 and 1996 and did not object, nor claimed possession on the basis of agreement to sale and accepted their status as a licencee over the property, no question of part performance contemplated under Section 53A of the Transfer of Property Act arises.
31. Reliance placed upon decision of Aloka Bose (supra) is distinguishable in the present case, as in the said case the question arose before the Supreme Court as to execution of oral agreement to sale, and Their Lordships at Supreme Court held that an agreement to sale can be oral. However, in the present case, plaintiffs themselves with their open eyes had entered into licence deed with defendant-respondent no. 1 and in para 7 of the deed, it is specifically mentioned that Rs.11,678/- was to be paid, which included the premium for the land licenced @ Rs.13/- per square yard as well as development charges and also licence fee of Rs.1 per year. It further provided for payment of balance amount in 12 monthly installments of Rs.500/-. Thus, licence deed itself is in teeth of the claim of plaintiffs-appellants, wherein their claim of oral agreement to sale falls flat.
32. Once it is admitted to both the parties that licence deed was executed on 10.08.1976 and possession was handed over pursuant to same, status of the plaintiffs-appellants became that of licencee and for 30 years no such claim was ever raised by them claiming to be in possession on the basis of agreement to sale.
33. Both the courts below had categorically recorded finding that plaintiffs-appellants had failed to prove their case by filing any documentary or oral evidence, proving the execution of agreement to sale, while PW-2 in his oral testimony had stated that it was only in the year 1975, he came to know that ownership of the land vested with defendant-respondent no. 1. Thus, no case under Section 53A of Transfer of Property Act arises, and the argument advanced in support cannot be accepted.
34. Coming to the second ground raised by learned counsel for the appellant that Section 60(b) of the Easement Act, 1882 is attracted and the courts below have failed to decree the suit. Before adverting to decide this issue, a cursory glance of Section 60 is necessary, which is extracted hereasunder:
"Section 60. Licence when revocable. - A licence may be revoked by the grantor , unless-
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution"
35. Section 60 lays down that licence may be revoked by grantor, except in two circumstances namely (a) when licence is coupled with transfer of property and such transfer is in force and (b) when licencee, acting upon the licencee, has executed a work of permanent character and incurred expenses in the execution. Thus, in these circumstances a licence become irrevocable.
36. A licence may be created by deed or by parole and in either case a mere licence is revocable, but where it is coupled with a grant, it becomes irrevocable. In a case of licence by parole, coupled with grant of interest which in incapable of being granted otherwise than by deed, such a licence operates as a mere licence because of invalidity of the grant and is revocable.
37. However, in the present case, we are confined with provisions of sub-section (b) of Section 60, wherein a licencee, acting upon a licence, has executed work of permanent character and incurred expenses in the execution. In original Suit No. 570 of 2004, in para 9 of the plaint, it has been specific case of plaintiffs-appellants that construction was complete in September, 1974, while the licence, admitted to both the parties, was granted on 10.08.19976, thus, the construction according to plaintiffs-appellants themselves was made prior to execution of licence deed, thus, no protection under sub-clause (b) of Section 60 can be granted to plaintiffs-appellants and both the courts below had rightly decreed the suit against the plaintiff.
38. The benefit of sub-clause (b) of Section 60 can only be granted where constructions of permanent nature had been made pursuant to grant of licence and not prior to grant of licence. As the said Section lays down three conditions and on fulfillment of which the benefit can be passed on firstly, the licencee executed work of permanent character, secondly, he did so acting upon the licence and thirdly, he incurred expenses in doing so. The onus of proving them lies upon the licencee.
39. In the present case, plaintiff-appellant who is the licencee himself has come out with a case that construction was completed in September, 1974, prior to execution of licence deed.
40. This Court in case of Raghubir Saran and others vs. Param Kirti Saran, AIR 1962 Allahabad 444, held as under:-
"(3) Another circumstance relied upon by Sri Ambika Prasad is that mentioned in Clause (f). The licence was granted, presumably for the purpose of constructing a thatch and the purpose can be said to have been abandoned when the thatch fell down and no attempt was made to rebuild it or to construct another on the site within a reasonable period. The licence, therefore can be said to have been revoked when the thatch fell down and it was not reconstructed or another was not built on the land for a period exceeding twelve years. We do not mean to lay down that twelve years period is a reasonable period; what we lay down is that when no attempt was made to rebuild the thatch or to build another during fourteen years, the appellants must be deemed to have abandoned she purpose of the licence. After the licence was (deemed to be) revoked in this manner, they had no right to construct a house, and if still they attempted to construct a house they were acting as trespassers and the respondent was fully justified in resisting them. A trespasser is not entitled to a decree for possession or injunction as he has no title. The respondent's act of preventing the appellants from constructing a house on the land itself can be treated as an implied revocation of the licence. When the thatch constructed under the licence fell down and the respondent stopped the appellants from reconstructing it, it means nothing but that he revoked the licence. No formality is required for the revocation of a licence; it can take place in any form. We were referred to Sheo Sahai v. Tilok Singh, 1936 All LJ 569: (AIR 1936 All 553) in which Niamat Ullah, J. observed as follows:
"The mere fact that a riaya's house completely falls down does not justify the proprietor to take possession of the site, unless the circumstances afford a reasonable ground for believing that the riaya had abandoned all intention to rebuild it."
Whether any intention to rebuild the house exists or not, is a question of fact and one court cannot lay down how another court should decide it. In this case there is no question whether the appellants abandoned the intension to rebuild the thatch or not. Whether they abandoned the purpose of the licence or not was undoubtedly a question that arose, but it is distinct from the question whether they abandoned the intention to rebuild the thatch. An intention to rebuild it at some time in distant future may not be carrying out the purpose of the licence. With great respect to the learned Judge we do not think that the question is relevant at all. The learned Judge has not discussed the law regarding revocation of licences and has not referred to the relevant provisions of the Easements Act. The case seems to have been decided on consideration of justice, equity and good conscience and not of any statutory law.
(4) Sri Hari Swarup contended vehemently that the licence was irrevocable. A licence is irrevocable under Section 60 when each of the following three conditions is fulfilled:
(1) the licencee executed a work of a permanent character; (2) he did so acting upon the licence; and (3) he incurred expenses in the execution. The construction here was only a thatch with a tiled roof. It was auctioned for Rs. 55/- together with wooden frames and shunters. Obviously it must have been construed of mud. Still it could be a work of a permanent character. In Nasir-ul-zaman Khan v. Azlm Ullah, ILR 28 All 741, followed by Neava J. in Gauri Shanker v. Mithai, AIR 1924 All 750 and by Kanhaiya Lal, J. in Amyad Khan v. Shafieddin Khan, AIR 1925 All 203, it was held that a kachcha thatched house may be "a work of a permanent character." We may therefore, agree with Sri Hari Swarup that the thatch was of a permanent character even though the evidence is that it was used only for tethering cattle and storing fodder. The other two conditions, however, are not proved to be fulfilled. There is apparently no evidence to prove that the thatch was constructed by the licencee acting upon the licence and that he incurred expenses in the execution. Some expenses might have been incurred in purchasing the tiles at least, but it cannot be assumed that they were incurred by the licencee and that the tiles were not presented to him by the predecessor of the respondent. Whether the licencee acted upon the licence by constructing the thatch or not and whether he incurred expenses in the execution or not, are essentially questions of fact, the onus lay upon the appellants to prove them, because he relied upon the provisions of Section 60 for contending that the licence was irrevocable. When he adduced no evidence whatever it must be held that the licencee was not proved to have acted upon the licence and to have incurred expenses in the execution. It seems that the question about the irrevocability of the licence was not raised before the trial court and no issue was struck about it; that explains why no evidence was produced by either party about it. No question or fact can be allowed to be raised in second appeal. When two of the conditions required for the irrevocability are not fulfilled the licence granted by the predecessor in interest of the plaintiff cannot be said to be irrevocable."
41. Similar view has been taken in Radhakrishna Hazra vs. Joykrishna Hazra, AIR 1967 Calcutta 204, wherein it was held as under:-
"(9) In my view, this does not appear to have been a proper approach to the problem, involved in this part of the case. It is true that the defendant has erected some pucca structures and has spent some money for the same, but it is hardly a proper inference to hold that the same was done by him acting on the license or within the terms of the license, granted by the plaintiff or his predecessor. In this view, even the principle, underlying the aforesaid statutory provision, would not apply, as the statute requires such act on the part of the licensee, acting on the license. From this stand-point, even the view of this Court, as expressed in Surnomoyee Peshakar v. Chunder Kumar Das, (1910) 12 Cal LJ 443, and Moti Lal v. Kalu Mandar, 19 Cal LJ 321: (AIR 1914 Cal 173). would not help the defendant and the latter would not be entitled even to compensation, far less to any protection from eviction. I may add here that on the point of protection of licensees from eviction, the above decisions of this Court seem to go against the view of the learned Judges of the Allahabad High Court in , and it may very well be contended, in view of these authorities, that, even when the licensee has made constructions and incurred expenditure, acting on the license, if the statute was not applicable, it may not be open to the court to apply the principle, underlying the same as that would be in conflict with the settled principle in this Court for the above point under the aforesaid two decisions.
(10) Be that as it may, this question need not trouble me in the present cases, as I have already found that whatever constructions were made by the defendant and whatever expenditure was incurred by him in that connection, cannot be said to have been made or done by him, acting on the license. The defendant, therefore, properly speaking, would not have been entitled to any relief or protection, either under Section 60 of the Easements Act or the principle, underlying the same, or, even to compensation under the aforesaid two decisions of this Court, reported in (1910) 12 Cal LJ 443 and 19 Cal LJ 312: (AIR 1914 Cal 173)."
42. The decision in case of Azeemullah (supra) relied upon by appellants is not applicable in the present case as the constructions in the present case had been made prior to execution of the licence deed as claimed by the plaintiffs-appellants themselves, thus, both courts below rightly repelled in granting benefit of Section 60(b) of the Indian Easement Act.
43. Apart from pressing these two points, no other points had been canvassed on behalf of appellants.
44. Having heard learned counsel for the parties and after considering the facts and circumstances of the case, I find that no question of law arises in the present appeals and both courts below had recorded categorical finding of fact against plaintiffs-appellants.
45. The Apex Court in recent judgment in Civil Appeal No. 8971 of 2010, Kirpa Ram (deceased) through legal representative and others vs. Surendra Deo Gaur and others, had held that the second appeal can be dismissed without even formulating the substantial question of law on 16.11.2020. The relevant paras 25 and 26 are extracted hereasunder:
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 CPC and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 CPC."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
46. In view of above, as no substantial question of law arises, these appeals are hereby dismissed.
Order Date :- 09.12.2020 V.S.Singh