Allahabad High Court
Sahabal And Others vs Budhiram And Others on 8 March, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD In Chambers Reserved A.F.R. Case :- SECOND APPEAL No. - 1468 of 1992 Appellant :- Sahabal And Others Respondent :- Budhiram And Others Counsel for Appellant :- Faujdar Rai,C.K.Rai Counsel for Respondent :- S.L.Yadav,B.B.Paul,Rajendra Rai, Rajesh Maurya,Shamumul Hasnain,Sheo Ram Singh Hon'ble J.J. Munir,J.
1. This is a defendants' second appeal, arising from a suit for recovery of possession and mesne profits.
2. Heard learned Counsel for the appellants and Mr. Rajesh Maurya and Mr. Sheo Ram Singh, learned Counsel appearing on behalf of the respondents.
3. Budhiram, the sole plaintiff-respondent, who is now represented by his heirs and LRs before this Court, instituted Original Suit No.627 of 1995 in the ex-Court of Munsif, Mohammadabad Gohna, District Azamgarh against Sahabal and Ninku, arrayed as the defendants first set, for a decree of possession, directing the defendants first set to the suit to deliver possession of a house and underlying land shown by letters अ ब स द with boundaries detailed at the foot of the plaint. A further decree was sought praying that the defendants first set be directed to pay the plaintiff mesne profits at the rate of Rs.20/- per month w.e.f. 10.05.1985 till date of delivery of actual physical possession of the suit property.
4. The plaintiff arrayed his brothers, Muktinath and Dhuppu as defendants second set or proforma defendants to the suit, for whose benefit also he instituted the suit. Later on, by an amendment to the plaint, Mahavir, a brother of Ninku, was impleaded as defendant no.5/defendant third set, against whom also relief was claimed to the same effect as the defendants first set.
5. In this appeal, the defendants first set and third set, that is to say, Sahabal, Ninku and Mahavir are the appellants. All three of them had together instituted the present appeal before this Court, but pending appeal they have passed away. They are represented on record by their heirs and LRs, duly substituted. All the three defendants-appellants, that is to say, the original defendants first and third sets to the suit, now represented by theirs heirs and LRs, shall hereinafter be referred to as the defendants, wherever the reference is made collectively. In case of an individual reference to any of the original defendant-appellant, the concerned party would be referred to by his name.
6. Budhiram, the plaintiff, who had instituted the suit, is arrayed to the appeal as the plaintiff-respondent no.1. He has passed away pending appeal and is represented on record by his heirs and LRs. Likewise, the two brothers of Budhiram, to wit, Muktinath and Dhuppu, who were arrayed in the suit as defendants second set in a proforma capacity, have also passed away pending appeal. They too are represented on record by their heirs and LRs. Budhiram, represented by his heirs and LRs, shall hereinafter be referred to as the plaintiff. Muktinath and Dhuppu, who were the defendants second set or the proforma defendants to the suit, now represented by their heirs and LRs, shall hereinafter be referred to collectively as the proforma defendants. Both the plaintiff and the proforma defendants would be referred to individually by their names, wherever the context necessitates.
7. According to the plaintiff, Plot No. 276 (formerly numbered as 531) situate at Village Lado, Tappa Badokhar, Pargana and Tehsil Sagri, District Azamgarh was held as a bhumidhari by Basanta, the plaintiff's and the proforma defendants' father. Five years prior to the institution of the suit, Basanta passed away. After his death, the plaintiff and the proforma defendants succeeded to his rights as bhumidhar of the plot aforesaid. They are bhumidhar in possession of Plot No. 276 (for short "the plot in question") ever since.
8. It is the plaintiff's case that the plaintiff and the proforma defendants live way far off from the plot in question and, therefore, for ease of farming and supervision of crops, they built a temporary shelter, described in vernacular as Madai. The site of this temporary construction is denoted in the map at the foot of the plaint by letters अ ब स द. It is then said that about two and a half years ante-dating the institution of the suit, the plaintiff and the proforma defendants constructed a kachcha house (for short "the suit property") at the site and in place of the temporary shelter. The plaintiff and the proforma defendants would stay in the suit property and take care of their crops. It is the plaintiff's further case that the defendants are natives of the village and their house is located at a distance of about 400 yards from the suit property. The defendants are said to have represented to the plaintiff and the proforma defendants that their house had fallen down and the way it was dangerous to inhabit. The defendants did not have the necessary wherewithal at that time to reconstruct or repair it. They requested the plaintiff to permit them to use the suit property until such time that they could get their own reconstructed. It was also said that the defendants would vacate the suit property as soon as their house was reconstructed/repaired. The plaintiff permitted the defendants use of the suit property as a licensee on condition that they would vacate it on the plaintiff's demand.
9. It is also the plaintiff's case that the defendants' house has been reconstructed and on the 10th of May, 1985, the plaintiff asked the defendants to vacate, but the defendants, at the instance of inimical elements in the village, turned dishonest and refused to vacate. The plaintiff thereupon revoked the defendants' licence and asked them to vacate. The defendants did not oblige. According to the plaintiff, the defendants are trespassers in the suit property ever since 10.05.1985. The plaintiff is entitled to recover possession of the suit property, besides mesne profits from the defendants w.e.f. 10.05.1985 until delivery of actual physical possession. It is on the basis of the aforesaid facts and cause of action that the suit was instituted on 03.07.1985.
10. The defendants put in a written statement and contested the plaintiff's claim. They propounded a pedigree in support of a case of a co-sharer's right with the plaintiff and the proforma defendants in the plot in question. It is the defendants' case that the plaintiff, the proforma defendants and the defendants are part of a joint Hindu family who were living together. The following pedigree was pleaded by the defendants in their written statement:
Dhodha Rajai Gokul Bindesari Kodai Basanta Garib Duij Dhuppu Mukti-nath Budhi-ram Sahabal @ Sukhdev Mahavir Ninku
11. Based on the pedigree aforesaid, it was pleaded by the defendants that the plaintiff, the defendants and the proforma defendants are the descendants of a common ancestor and constitute a joint Hindu family. It was pleaded that Bindesari, whose branch the defendants represent, had gone insane. For the said reason, after the death of Rajai, Gokul was recorded as the Karta and after him, Kodai and Basanta. The defendants trusted Kodai and Basanta, in both of whom they had faith. Kodai and Basanta were, therefore, recorded over the joint family property. It is pleaded further that during the consolidation operations, the plaintiff had served as a Chakbandi Lekhpal. The defendants would trust the plaintiff also and it was the plaintiff who would take care of records of the family's property and other business after Basanta's death.
12. The defendants have pleaded that upon the members of the family increasing in numbers, Kodai and Basanta set up home in the residential house and in the part of the property where the animals were housed, described as Bardaur, the defendants set up residence. In substance, it was pleaded that growing numbers of the family were spread out into different parts of the property, that the joint family held. After some time, the defendants too set up separate dwelling. Basanta, finding the defendants to be short of accommodation, asked them to utilize the land, comprising the plot in question, for the purpose of a living accommodation and also to house their cattle. The plot in question was close by to the abadi and the defendants, therefore, constructed a temporary shelter thereon, described as Madai, which they later on, by and by replaced by a kachcha house with a tiled roof.
13. It is pleaded that the suit property has no concern with the plaintiff or his ancestors. During the consolidation operations, it was pleaded that the chak of both parties were entered over the plot in question, which, according to the allotment, are in their respective possession. It is then pleaded that the plaintiff and his brothers too separated and the plaintiff and Muktinath, defendant no.3 to the suit, set up residence in the house, wherein regular residential quarters are located. Their cattle were also housed there. The defendants stayed in the suit property and in a part of it, towards the west, the plaintiff and the proforma defendants kept up storing their fire-wood in the same manner as they were doing since long. Dhuppu, defendant no.4 (a proforma defendant) set up separate residence at the place where the family would earlier store their agricultural implements. All his living and that of his family were built around that place.
14. Some years earlier, on the north-western corner of the suit property, where both parties have their chak, both parties sunk a private tubewell and at that place, the plaintiff got his house constructed. The plaintiff and his children stay in that house. In the suit property, neither the plaintiff nor his father ever built a temporary shelter (Madai). It is denied that the defendants' house located in the abadi ever collapsed, so as to require a reconstruction. Much to the contrary, it is pleaded by the defendants that their house located in the abadi is still in existence where it was. The plaintiff never asked the defendants to vacate the suit property. It is pleaded that the plaintiff's intentions went foul during the consolidation operations, about which the defendants never had knowledge. The plaintiff got his father's name entered exclusively over the chak that comprises land coming down from common ancestors. The defendants got the revenue records inspected and then came to know about the fact. Thereupon, the defendants instituted a suit before the Court of competent jurisdiction. It was also pleaded that the plaintiff had no right to institute the present suit. The suit was time barred. The suit is barred by estoppel and bad for mis-joinder. It is also barred by Section 34 of the Specific Relief Act, 1963.
15. The plaintiff filed a replica and pleaded that the defendants never had any right to or interest in the plot in question or the suit property. What was particularly pleaded through the replica is the fact that the defendants were not at all connected to the family of the plaintiff and the proforma defendants. The pedigree shown was denied as false and concocted. It was also pleaded that Bindesari, the defendants' ancestor, was not a son of Rajai or a member of his family. The plaintiff propounded a pedigree of his family, that he claimed depicted the correct relationship between parties in Paragraph No.3 of his replica. The pedigree pleaded by the plaintiff is shown below:
Raghunath @ Ragghu Nonia Dhandha Shivraj Rajai (Fautlavald) Gokul Kodai (Fautalavald) Basant Dhuppu (D4) Muktinath (D3) Budhiram (plaintiff)
16. Mahavir, defendant no.5 and the original appellant no.3 to the appeal, also filed a separate written statement dated 04.05.1987, more or less pleading on the same lines as the defendants. An additional written statement dated 22.07.1988 was filed on behalf of the defendants jointly. A similar additional written statement, also on behalf of the defendants jointly, was filed on 18.08.1988. These pleadings more or less do not add anything material to the defendants' case.
17. On the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi):
"(1) Whether the plaintiff is entitled to possession of land and the house denoted by letters अ ब स द and things attached to it? (2) Whether the plaintiff is entitled to mesne profits as claimed in the plaint?
(3) Whether the suit is barred by time?
(4) Whether the suit is barred by estoppel?
(5) Whether the suit is bad for non-joinder of necessary parties?
(6) Whether the suit is undervalued and the court-fee insufficient?
(7) Whether the suit is barred by Section 34 of the Specific Relief Act, 1963?
(8) Whether the suit is barred by Section 43 of the Code of Civil Procedure, 1908?
(9) Whether the plaintiff is entitled to any relief?
(10) Whether the suit is bad for mis-joinder of necessary parties?
(11) Whether the suit is barred by Section 42 of the Code of Civil Procedure, 1908?"
18. The plaintiff led voluminous documentary evidence in support of his title, including those relating to proceedings during consolidation operations and the rights recorded during consolidation. Documents were also filed, that are very old revenue entries and extracts of the Family Register. A summary of documentary evidence led on behalf of the plaintiff finds a detailed reference in the judgment of the Lower Appellate Court and need not be recapitulated. The plaintiff examined three witnesses, to wit, Budhiram, PW-1, Katwaru, PW-2 and Dharamdev, PW-3.
19. The defendants, on the other hand, also led documentary evidence, a summary of which is also detailed in the judgment of the Lower Appellate Court and is not being reproduced here for the sake of brevity. The defendants examined two witnesses, that is to say, Sahabal, DW-1 and Mangali, DW-2.
20. The issue of valuation was decided by an order of the Trial Court made on 18.12.1986, about which there is no surviving controversy. Issues Nos.3, 4, 7, 8 and 11, all of which are defendants' issues, were not pressed at the trial and, therefore, answered in the negative. The issues of non-joinder of necessary parties and mis-joinder were also decided in the negative in favour of the plaintiff and against the defendants by an order made by the Trial Court on 15.07.1987.
21. The Trial Court tried the suit substantially on Issues Nos. 1 and 2 and decided both in favour of the defendants and against the plaintiff. It was held by the Trial Court that the plaintiff's title to the land, whereon the suit property is located, is established on the basis of documentary evidence, but accepted the defendants' case that the constructions standing thereon were ones of a permanent character, in relation to which, their license could not be revoked, in view of the provisions of Section 60(b) of the Indian Easements Act, 1882. It is on the said findings that the suit was dismissed.
22. Aggrieved by the decree of the Trial Court, the plaintiff instituted Civil Appeal No.110 of 1989 before the District Judge of Azamgarh on 28.02.1989. The said appeal came up for hearing upon assignment, before the learned Additional Civil Judge (now equivalent to the Court of the Civil Judge, Senior Division) on 22.07.1992. The learned Judge allowed the appeal, reversed the decree of the Trial Court in part and decreed the plaintiff's suit, ordering the defendants to deliver possession of the suit property to the plaintiff, including the underlying land, after withdrawing from its possession within a period of three months. However, the plaintiff's claim for mesne profits was dismissed.
23. Aggrieved, this second appeal has been instituted by the defendants
24. This appeal was admitted to hearing on 06.11.1992 on the following substantial questions of law:
(1) Whether the plaintiff could be granted relief in effect of exclusive possession in the face of joint possession? (2) Whether the suit could be maintainable in view of Section 60 of the Indian Easements Act, 1882? (3) Whether an issue about tenure of land was desirable and if so, whether there was a mistake of law in not framing and referring the same to the Revenue Court under Section 331-A of the U.P. Z.A. & L.R. Act, 1950?
25. The first substantial question of law has been raised on the basis of a case that the suit property was part of a larger holding that was the property of a Joint Hindu family, who had lived together without a formal partition. The defendants have made out themselves to be members of the Joint Hindu family, of which the highest and relevant ancestor was Dhonda. The family, according to them, went into the branches of Gokul and Bindesari, where the defendants represent the branch of Bindesari and the plaintiff and the proforma defendants, the branch of Gokul. The defendants' case proceeds on the basis that Bindesari being of unsound mind, it was the branch of Gokul who served as Karta for the Joint Hindu Family, that the defendants say they were. It is the defendants' case that when Basanta was functioning as the Karta, he had permitted the defendants to set up residence for themselves on a part of the plot in question, in deference to their share in the joint family property. The defendants' case, therefore, is that they first built a temporary shelter, Madai and then a kachcha house on the bidding of Basanta, no doubt, but in realization of their right to hold a specific share in the joint family property that would come by in case of a formal partition. The case of the defendants, therefore, is of a pre-existing right in the Joint Hindu Family property belonging to the Joint Hindu family, of which Dhonda is the progenitor. The permission given to the defendants by Basanta is, therefore, not a license to construct over the suit property. Rather, it is the defendants' case that the permission was given in realization of the defendants' right as a member of the Joint Hindu family to a specific portion of the property thereof, bringing about a partition through an oral family settlement. In effect, therefore, the defendants plead a case of title to the suit property, flowing from their status as members of the joint family in question and a permission from the Karta thereof, which is in the nature of a family settlement.
26. By contrast to the defendants' case, the plaintiff disowns the fact that the defendants and the plaintiff are in any way the members of a Joint Hindu Family. He says that the defendants are in no way connected by a bloodline to the plaintiff or the proforma defendants. They are utter strangers to the plaintiff's family. The plot in question, as well as the suit property is owned by the plaintiff and the proforma defendants that they have inherited from a common ancestor, Raghunath through Shivraj, Gokul and Basanta in successive generations. Bindesari is not at all connected to the plaintiff's family, though a native of the village. Basanta never permitted the defendants to raise constructions over the suit property. Rather, it was the plaintiff who permitted the defendants to use the suit property that had already been constructed by the plaintiff and proforma defendants in order to take care of their crops that stood in the land in dispute. The plaintiff had constructed the suit property first as a temporary shelter, a Madai and then as a kachcha house to look after their crops, because their house was located far away from this part of their agricultural holding. The permission had been given to the defendants to occupy the suit property for such period of time that the defendants needed to reconstruct their own house located some 400 yards away, that had fallen down. The permission that was granted was revoked on 10th of May, 1985 after the defendants' house was reconstructed. Thus, the defendants are trespassers in the suit property, after revocation of their licence by the plaintiff.
27. For the purpose of determination of the substantial question of law under consideration, the two Courts below, particularly the Lower Appellate Court, has gone into the genealogy of parties to determine whether the defendants on one hand, and the plaintiff as well as the proforma defendants on the other, were members of a Joint Hindu Family. The question about the ''jointness of possession' of parties really does not arise on the state of evidence here. If it did, perhaps, it would require determination by a competent Revenue Court. Here, there is overwhelming evidence, rather evidence documentary, that establishes the plaintiff's claim to the suit property. There is no documentary evidence to show even a hint or shadow about the defendants' title to the suit property. The plaintiff and his ancestors have consistently remained recorded over the suit property, since before the abolition of Zamindari and until date of the commencement of action. The Lower Appellate Court has made a punctilious reference to the various revenue records, dating back to the year 1940-41, mentioning the relevant Fasli Year. The Lower Appellate Court has taken note of the Bandobast of the year 1349 Fasli, where the name of Kodai and Basanta, sons of Gokul, is recorded. Also considered by the Lower Appellate Court is Khatauni Jild Bandobast of the year 1308 Fasli corresponding to the calendar year 1900-1901. During that period of time, the name of Rajai, son of Dhonda, was recorded and in the same document, the name of Gokul son of Shivraj is also recorded.
28. It has been noted by the Lower Appellate Court that in none of the record of rights relating to the land in dispute, including the suit property, the name of Bindesari occurs, who is said to be the link connecting the defendants to the plaintiff's pedigree. This Court is of opinion that if truly it were a case where the existence of the bloodline claimed by the defendants was necessary to determine the rival claim of the parties about title to the suit property, this case might require trial by the competent Court of revenue jurisdiction, the land being a bhumidhari. But, no question of title arises in this case, for the reason that consolidation operations have admittedly intervened, where, according to the defendants, the parties' chaks have been entered. There is no record from the consolidation that may show title or possession of the defendants or a joint possession for the defendants, a fact found by both the Courts below and more eloquently by the Lower Appellate Court. It is for this reason that so far as title is concerned, the Trial Court and the Lower Appellate Court have returned unanimous findings in favour of the plaintiff and the proforma defendants. The findings recorded by the Authorities under the U.P. Consolidation of Holdings Act, 1961 (for short "U.P. C.H. Act") about title inter partes are final and unassailable before any Court or Authority. If after close of the consolidation operations, about which there are CH Form-23 and CH Form-41 on record, the rights of the defendants are not recorded over the land in dispute or the suit property, there is no title dispute that survives for determination by a Court of revenue jurisdiction.
29. It must be recorded here that the judgments of the two Courts below indicate that the defendants did go for a determination of their rights to the Revenue Court and filed a suit under Section 229-B/ 176 of the U.P. Z.A. & L.R. Act, being Suit No.383/413, which was dismissed. Appellate or Revisional remedies against the said determination were invoked by the defendants, but nothing has been brought to this Court's notice to show that the defendants succeeded in their endeavour to establish title to the land in dispute or the suit property. This Court has also perused the certified copy of the judgment and decree dated 31.10.1986 passed by the Sub-Divisional Officer, Sagri, Azamgarh in Suit No.383/413, under Section 229-B/ 176 of the U.P. Z.A. & L.R. Act. The suit was filed by Sahabal, son of Gareeb, Mahavir and Ninku, the three defendants here, against Budhiram, Muktinath and Dhuppu, the plaintiff and the proforma defendants. The suit related to the defendants' claim for declaration of title and partition of Gata No.531 (old) based on the case of a Joint Hindu Family property, where the property came down from a common ancestor. The issues in the suit, amongst others, were whether the plaintiff and the defendants were co-sharers in possession of the suit property and they had a half share. It was also an issue whether the suit is barred by Section 49 of the U.P. C.H. Act. The Sub-Divisional Officer has recorded a finding that no objection was raised during consolidation operations by the plaintiffs (the defendants here) and, therefore, the suit was barred by Section 49 U.P. C.H. Act. The Revenue Court has also returned a finding that it was the defendants to that suit (who are the plaintiff and the proforma defendants here) who were recorded over the suit property. Nothing has been shown to this Court or noticed by the Courts below that this judgment of the Sub-Divisional Officer has been overturned by a Court of competent jurisdiction in appeal.
30. The plaintiff's title to the suit property has been accepted by both the Courts below on the findings and evidence noticed hereinabove, which cannot be faulted. There is absolutely no evidence to show a case of joint possession between the plaintiff and the defendants, based on a title properly so called, except a licence. Therefore, if on the revocation of the licence, validly made, the defendants could be removed from possession, there is no joint possession inferable by any principle of law for the defendants that may hinder a decree of exclusive possession being passed in favour of the plaintiff, of course, subject to a valid revocation of the licence.
31. In view of the aforesaid conclusion, Substantial Question of Law No. (1) is answered in the affirmative in the terms that exclusive possession can be granted where joint possession of the party resisting dispossession is not based on some kind of a right or title, but a mere licence, of course, subject to its valid revocation.
32. The second substantial question of law raised is whether the suit is maintainable in view of Section 60 of the Indian Easements Act. The question precisely is whether the defendants being in possession of the suit property as licensees, where they have raised constructions of a permanent character, are entitled to resist revocation of their license, in view of the provisions of Section 60(b) of the Indian Easements Act. This substantial question of law has arisen because of the judgment of the Trial Court, which held the plaintiff to be the owner and/ or bhumidhar of the land in dispute, including the suit property, like the Lower Appellate Court, but opined that the defendants had raised constructions comprising the suit property of a permanent character in accordance with the licence given by the plaintiff or his predecessor-in-title.
33. The Lower Appellate Court, on the second point of determination, that it has considered, has examined the plaintiff's case of a license to live in the house constructed by him on the one hand and the defendants' case of being given the land by the plaintiff's predecessor Basanta, pursuant whereto they had raised construction of a permanent nature on the other. The Lower Appellate Court has meticulously examined evidence of witnesses, including the documentary evidence, particularly the documents relating to consolidation proceedings and opined that if the constructions had been raised by the defendants, acting on the permission given by Basanta before consolidation commenced, the suit property and its value would figure in consolidation proceedings. The witnesses' testimony about who actually constructed the suit property was also considered, particularly that of PW-2, who has said that he was the contractor involved in the construction of the suit property. The said witness has been believed, together with the documentary evidence relating to proceedings during consolidation, by the Lower Appellate Court to find for a fact that constructions comprising the suit property were raised by Budhiram and not the defendants years ago on a permission given by Basanta. These are findings of fact recorded after a careful scrutiny of oral and documentary evidence and cannot be disturbed by this Court sitting in second appeal. In fact, the defendants have spoken about a permission to raise constructions, that have now become the suit property, located over the plot in question, not as licensees but in acknowledgment of their right as coparceners or co-sharers of a Joint Hindu Family with a permission by Basanta acting as the Karta. It is perhaps on account of the fact that the Trial Court has disbelieved the defendants' case of title to the suit property, in whatever manner, that the permission given by Basanta was then examined from the vantage of Section 60(b) of the Indian Easements Act.
34. The Trial Court had held for a fact that it was Basanta who permitted the defendants to raise constructions over a part of the plot in question, that is now the suit property. The Trial Court proceeded to reason that in the absence of any title with the defendants being established to the plot in question or the suit property, the permission, that Basanta granted, must be held to be a licence, permitting the defendants to raise construction of a permanent character. This finding, for cogent reasons assigned, has been overturned by the Lower Appellate Court, upon a consideration of relevant evidence, both documentary and oral. The Lower Appellate Court has held that the constructions were never raised by the defendants, but by the plaintiff, and the defendants were allowed to occupy the suit property for a short period of time between August, 1984 and May, 1985, in order to facilitate the defendants to tide over the crisis of reconstructing their house that had actually collapsed.
35. Learned Counsel for the defendants, however, has impressed upon the Court that the provisions of Section 60(b) of the Indian Easements Act forbid the grantor of a licence from revoking it, where, acting on the licence, a licensee had executed a work of a permanent character and incurred expenses in its execution. Learned Counsel has placed reliance upon the decision of this Court in Jai Narain v. Sri Ram Narain (deceased by L. R's.) and other, AIR 1989 All 182. The attention of this Court has been drawn to Paragraph Nos.7 and 8 of the report in Jai Narain (supra), that read:
"7. I am unable to agree. A some what identical situation came up for consideration before this Court in the case of Azahar Husain v. Mansab, reported in 1940 All LJ 354 : (AIR 1940 All 324). The question raised there was whether S.60(b) of the Easements Act could be pressed in and in respect of that portion of the land which is left by the licensee unbuilt and which is used by him as his Sehan Darvaja. There the licensee had instituted the suit for restraining the licensor from interfering with his possession in respect of vacant piece of land. The learned Judge hearing the second appeal negatived the contention of the licensee holding that where a licence is given to one to build a house on a piece of land and acting upon that licence, he builds a house keeping a portion of the land vacant so that it might be used as sehan darvaza the license would be irrevocable under S.60(b) of the Easements Act both in regard to the site of the house as well as the piece of land, which is appurtenant thereto. The ratio was that a person building a house may legitimately use the land appurtenant thereto for the proper enjoyment of his house provided of course the licensee built the house in pursuance of the terms of the license and the site of the house and the appurtenant land does not exceed the area in respect to which the license was granted.
8. That precisely is the situation obtaining in the present case. With respect, I find myself in complete agreement with the ratio of the decision cited above. The finding in the present case is that the appurtenant land is being used by the plaintiff for tethering cattle and other miscellaneous acts. Further finding is that this land is part and parcel of the land which was granted to the plaintiff under the license. That being so, S.60(b) was attracted in terms. Lease granted in favour of the defendant was hence of no avail to the defendant as against the plaintiff."
36. A perusal of the issue, that fell for consideration of this Court in Jai Narain, shows that it was not about the irrevocability of the licence generally, where the licensee had been permitted to raise constructions of a permanent character by the licensor. That position appears to have been undisputed on facts there. The issue was about a part of the land given on licence by the Zamindar, that was not built upon pursuant to the licence, but remained open. The open portion of the land was appurtenant to the constructions that had been erected acting on the licence. The question, therefore, was whether Section 60(b) would be attracted to that portion of the land held on licence, which the licensee had not utilized to raise constructions. It was held that the protection of Section 60(b) would extend to the unbuilt land held on licence, if it were appurtenant to the land that had been constructed upon in terms of the licence.
37. This Court is afraid that the principle in Jai Narain is not at all attracted to the facts of the present case, where for a fact, the Lower Appellate Court has returned an unassailable finding of fact that the suit property comprises constructions that were raised by the plaintiff and licensed to the defendants as such. The defendants had never themselves raised any construction, acting on any permission or licence, to raise constructions of a permanent character.
38. The other decision relied upon by the learned Counsel for the defendants is Babu Fazal Haq and others v. Lala Data Ram and another, AIR 1975 All 373. In Babu Fazal Haq (supra), it was held by their Lordships of the Division Bench of this Court, thus:
"22. We have now to consider whether the said licence was revocable. Section 60 of the Indian Easements 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."
The above section embodies 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 cannot 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, cannot turn round and claim the removal of such building on the ground that the latter had no authority to build. He is estopped by his conduct from adopting that course and the law will presume an authority from him in such cases. In the instant case we find from the own admission of the plaintiff that within a few days after obtaining his permission the defendants raised the constructions over the disputed land and they established their factory by installing a saw machine, oil expeller and flour mill. The house of the plaintiff is admittedly situate at a very little distance from the said land. It is quite clear that if the plaintiff had not given the land to the defendants for the aforesaid purposes, he would have taken exception to the making of constructions over the same and the installation of the saw machine, oil expeller and the flour mill. As We have already pointed out, the finding of fact recorded by the courts below is that the land was given by the plaintiff to the defendants for the purpose of making constructions and establishing a factory over it. Since acting on that agreement the defendants made costly constructions of permanent nature, the licence has now become irrevocable.........."
39. The law laid down by their Lordships of the Division Bench is without exception as to principle, but of little assistance to the defendants here. The reason is that the holding in Babu Fazal Haq came in the wake of facts, where the findings returned by the Courts of fact were that the licensee was permitted to raise constructions of a permanent nature over his land by the licensor, which was a saw machine, oil expeller and flour mill. It was in that context remarked by their Lordships that if the licensor permits another to raise constructions of a permanent character over his land, where that other incurs expenses in its execution, the licence becomes irrevocable. But again, the aforesaid principles or the holding of their Lordships in Babu Fazal Haq would not help the defendants, because it has been found for a fact by the Courts below that the suit property comprises constructions that were raised by the plaintiff and licensed to the defendants; not constructions raised by the defendants on land licensed by the plaintiff or his predecessors.
40. This Court must also remark that a plea to avail the benefit of Section 60(b) of the Indian Easements Act does not appear to have been specifically raised in the written statement. The case in the written statement was about the proprietary right as a co-sharer or coparcener of a Joint Hindu Family that the defendants set up, where they raised constructions in exercise of a proprietary right with permission of the Karta. That case has not been found vindicated by the Court of facts below, and in the absence of a plea about a licence, acting whereon, constructions of a permanent character were raised by the defendants incurring expenditure, no issue was framed by the Trial Court about it. It is for this reason that the parties did not lead any evidence about a case founded on Section 60(b) of the Indian Easements Act. It is the Trial Court that carved out this case for the defendants out of the shambles of a failed plea of title, based on membership of the Joint Hindu Family and their right as co-sharers therein. The Lower Appellate Court, therefore, for very valid reasons, has held that a plea or an issue claiming for a party the benefit of Section 60(b) of the Indian Easements Act, is a mixed question of fact and law, which requires a specific plea to be taken in the written statement and then evidence led by parties on the issue framed.
41. The point whether a case based on Section 60(b) of the Indian Easements Act could be raised without a specific plea in that behalf, fell for consideration of the Bombay High Court in Ramesh v. Pandurangrao Ratnalikar and others, 2006 SCC OnLine Bom 81, where it was held:
"10. Even though, initially, the defendants in two suits had taken plea of purchase of the land, that plea could not be proved. In all the matters, the plaintiff-respondent has proved his title over the land. The defendants appellants have failed to prove their adverse possession. The trial Court in all the five matters held that the defendants were occupying the land by virtue of licence. Now in the Second Appeals, the defendants have not raised dispute either to the title of the plaintiff nor they have raised the plea of adverse possession. According to them for last ⅔ generations, they are living on the suit lands by constructing huts, which are permanent structures and therefore, in view of section 60(b) of Easements Act, licence has become irrevocable and therefore, the plaintiff cannot revoke the licence and seek possession back. In view of this, the matters rest on the following issue:
11. Whether the defendants-appellants prove that the licence has become irrevocable in view of the provisions of section 60 clause (b) of Indian Easements Act.
12. It is not in dispute that the plaintiff is owner of the land. The defendants or their fathers had taken possession of the land as licensees. It is also not in dispute that the plaintiff issued notices for revocation of license. The said notices were not accepted and thereafter, the plaintiff issued a public notice in local newspaper "Prajawani". Section 60 reads as follows:
"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."
13. Admittedly, clause (a) is not applicable to the facts of the present case. Under clause (b) the licence would become irrevocable if licensee acting upon the licence has executed a work of permanent character and incurred expenses in the execution. All the three conditions have to be satisfied, naturally burden lies on the licensee to prove these three conditions, who pleads that the licence has become irrevocable. It is well settled principle of law that before any evidence of any fact may given in a Civil proceeding, party has to plead the fact, so that on such disputed fact issue may be framed and then parties may lead evidence on that issue. Admittedly, in the present matters, the defendants in their written statements had not admitted that they were licensees and further they had also not pleaded that they had, acting upon the licence, constructed huts or houses of permanent character and had incurred expenses in execution of the said work. Naturally, in absence of any such plea of irrevocability of licence, no issue was framed. The plaintiff proceeded to lead evidence to prove his title, licence and revocation of licence by issuing notice. Defendants, on the other hand, tired to lead evidence to prove their title or adverse possession over the said lands for more than 12 years. Plea of irrevocability was not raised in the written statement. Relying on certain authorities of the Supreme Court in Elizabeth v. Saramma, AIR 1985 NOC 159 (Ker.), the Kerala High Court held that irrevocability of licence has to be pleaded and proved and in absence of any pleadings or issue on this point, it cannot be said that licence was irrevocable. In Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan, (1976) 4 SCC 112 : AIR 1976 SC 2506, the Supreme Court had to deal with the similar case in which the defendant had not pleaded irrevocability of licence nor any issue was raised but it was contended that the defendant-appellant was deemed to be licensee and since he had executed the work of permanent character involving heavy expenditure. Hence, the licence would be irrevocable under section 60(b) of the Easements Act. After discussing the facts of the case, Their Lordships made following observations in para 14 "Only one more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licensee."
42. Again, the point was pronounced upon eloquently by the Rajasthan High Court in Dhool Singh v. Smt. Bardhu Bal and other, AIR 1974 Raj 90, where it was held:
7. ........ The parties had fought the litigation on the question of title alone. Whereas the plaintiff claimed that on account of a gift in his favour by Smt. Kesar Bai, he was the owner of the property, the defendant asserted that the portion sold by the plaintiff to Kadar Bux had been given in ''Kanya Dan' to his mother and on account of the unauthorised alienation the disputed portion was given by the plaintiff to the defendant in exchange. It was the plea of the plaintiff that the defendant was in permissive possession. In answer to that the defendant only asserted his own title to the property, but did not set up any case in the alternative that even if he were a licensee the licence would be irrevocable on account of the defendant having raised a construction of permanent character on the property.
Normally a licence is revocable unless the case falls under clauses (a) or (b) of sec. 60 of the Easements Act.
Under clauses (a) of the licence is coupled with a transfer of property and such transfer is in force the licence would not be revocable, and under clause (b) if the licensee, acting upon the licence, had executed a work of permanent character and incurred expenses in the execution then too the licence will not be revocable. It was a mixed question of fact and law whether the necessary conditions about the irrevocability of the licence existed or not. It was, therefore, necessary for the defendant to have pleaded the necessary facts in his written statement and to have a proper issue framed. It is true, two of the witnesses produced by the plaintiff namely, P.W. 4 Kadar Bux and P.W. 5 Vishmmbhar Dayal support the defendant, but these statements can be of no avail to the defendant. Even so, I have considered the question whether the defendant can be said to have made any works of permanent character by the construction of the room or the latrine. So far as the latrine is concerned, the defendant has clearly admitted as P.W. 8 that when he wanted to construct the latrine the plaintiff prevented him and, therefore, he had to content himself by merely having a latrine of "Tat Pattis" (screens made of gunny bags). This latrine cannot, therefore, be said to be any work of a permanent nature. As regards the room, the court below has found that it was ''Kucha'. Whether a particular construction is one of permanent character or not is primarily a question of fact and the finding can be given only in the light of the nature of the construction and other attendant circumstances. There is no hard and fast rule to determine as to what construction would be regarded as a work of a permanent, character and what construction otherwise than of permanent character. The court below has held that the room was ''Kucha' and, therefore, on the material as it stands one cannot hold that the room was a work of a permanent character. It was for defendant to have raised a plea in his written statement and then to have an issue framed for its determination. In the circumstances of the present case one cannot say that the work was of the permanent character.
11. In these circumstances without there being any plea in the written statement, nor there being any issue one cannot go by just the statements of two of the plaintiff's witnesses. The courts below were, therefore, not right in holding in the circumstances that the licence was irrevocable."
43. Apart from the fact that there is no plea in the written statement urging a case of irrevocable licence based on Section 60(b) of the Indian Easements Act, or in substance asserting such a case, the Lower Appellate Court has found for a fact, that we have already approved as an unexceptionable finding based on relevant evidence, that the suit property comprises constructions raised by the plaintiff and licensed to the defendants.
44. In view of what this Court has found, Substantial Question of Law No.(2) is answered in the affirmative in terms that the suit is maintainable, unaffected by the provisions of Section 60 of the Indian Easements Act.
45. So far as the third substantial question of law is concerned, the defendants have strenuously urged that there being a question of title to the agricultural land involved, an appropriate issue should have been framed and sent to the Assistant Collector for a decision of the same. Learned Counsel for the defendants has strongly disputed it. He submits that this substantial question of law does not arise for consideration in this appeal at all. It is submitted that the plaintiff and the proforma defendants are recorded title holders, with no hint of an interest for the defendants in the suit property being discernible anywhere. The defendants' suit under Section 229-B read with Section 176 of the U.P. Z.A. & L.R. Act has failed and all issues of title are now concluded, in view of the provisions of Section 49 of the U.P. C.H. Act. He submits that during consolidation operations, no objection about title has been raised by the defendants against the plaintiff or his predecessors. Now, therefore, the defendants are precluded from raising the question of title in view of the bar contained in Section 49 of the U.P. C.H. Act. This Court has already remarked that there is absolutely no evidence noticed by the two Courts of fact below, where a triable case relating to title may have been raised by the defendants. Substantial Question of Law No.(3) does not, therefore, arise for consideration and is not required to be answered in view of the provisions of sub-Section (5) of Section 100 CPC.
46. In the result, this appeal fails and is dismissed with costs throughout.
47. The interim stay order dated 06.11.1992 is hereby vacated.
Order on the Cross-objections
1. This cross-objection was filed on 22.02.1993 by the plaintiff against the part of the decree by which his claim for mesne profits has been refused by the Lower Appellate Court. No substantial question of law has been formulated in the memorandum of the cross-objections. During the hearing of the appeal also, no substantial question of law was pointed out by the learned Counsel for the plaintiff, on the basis of which the cross-objections could be admitted to hearing.
2. The cross-objection, accordingly fails and is dismissed.
Order Date :- 8.3.2022 Anoop