Calcutta High Court (Appellete Side)
Sri Satyendra Nath Basu Roy vs Sri Monoj Biswas on 21 March, 2014
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE MR. JUSTICE TAPAN KUMAR DUTT
S.A. 166 of 2012
Sri Satyendra Nath Basu Roy ..... Plaintiff/appellant
Versus
Sri Monoj Biswas .......... Defendant/respondent
Mr. Sudhis Dasgupta, Mr. Dilip Kumar Samanta, Mr. Biswapriya Samanta, Mr. Debapriya Samanta.
Mr. A.K. Paul .... For the Appellant.
Mr. S.P. Roy Chowdhury, Mr. Rameswar Bhattacharya, Mr. Ram Uday Bhattacharya, Mr. Tanmoy Chowdhury, ... For the Respondent No.1.
Heard on: 12.09.2013,19.09.2013, 26.09.2013, 01.10.2013, 07.10.2013.
Judgement on:21.03.2014 This Court has heard the learned Advocates for the respective parties and has also considered the materials on record.
The facts of the case, briefly, are as follows:
The plaintiff/appellant filed a suit against the defendant/respondent being title suit No. 17 of 1997 which was placed before the learned Civil Judge (Senior Division), 2nd Court, Barasat. The plaintiff/appellant prayed, inter alia, for a decree for recovery of khas possession of the suit property upon evicting the defendant from the suit property as described in the schedule of the plaint. It appears that the suit property happens to be lease in plot No. 142, in Block-BJ, Sector-II of the Northern Salt Lake city extension area, District of North 24-Parganas P.S. Salt lake, Calcutta-700091 with one storied building with a garage and mezzanine floor standing thereon. The case of the plaintiff/appellant was that the plaintiff/appellant is a lessee under the Government of West Bengal in respect of the said land upon which an one storied building with a garage and mezzanine floor have been constructed. The plaintiff/appellant stated that he got the lease of the said land in 1981 and after obtaining sanction of the building in 1992 started construction of the house in the same year i.e. 1992 and the building as it stands now was completed in 1992 but the defendant is in occupation of the same. The plaintiff further stated that he has one son who is a teacher in USA and the defendant is a son of the plaintiff's elder sister and the said defendant was very affectionate to the plaintiff and the plaintiff used to repose absolute faith and trust on the said defendant/respondent. In the plaint, the plaintiff has also alleged the manner in which the parties had agreed to occupy the respective portions of the suit property. The plaintiff has further stated in the plaint that the defendant who was in charge of the construction was requested to remove his goods and things from the mezzanine room in order to enable the plaintiff to go there and take steps for the construction of the house but the defendant refused to cooperate with the plaintiff and claimed that the house belonged to him as the defendant had spent very substantial amount for building it. The plaintiff has alleged that the plaintiff had borne a good amount of expenses in respect of the suit property but at the same time the plaintiff has admitted the fact that the defendant too had spent considerable amounts for the construction of the house. The plaintiff/appellant has also alleged in the plaint that the defendant agreed and defendant was assured that so long as the defendant lived he and his wife or the survivor of them would live on the ground floor of the suit property and there would be no hindrance but the status of the defendant and his wife would be that of a licensee or life tenant and nothing more than that. It further appears from the plaint that it has been alleged by the plaintiff that the defendant was assured that he and his wife would be allowed to live on the ground floor of the suit property till their respective natural lives and the plaintiff would shift to the mezzanine floor portion enjoying some facilities on the ground floor jointly with the defendant and gradually make first floor construction for the plaintiff's occupation with the members of his family. According to the plaintiff, the total expenses for construction of the house did not exceed rupees 9,00,000/- (Rs. nine lakhs) and the defendant, after proper accounting, may get refund of the same provided he agrees to vacate the suit property. According to the plaintiff, the plaintiff is also entitled to mesne profits.
The said suit was contested by the defendant/respondent by filing written statement/additional written statement. It appears that the defendant did not dispute the fact that the plaintiff is a lessee under the Government of West Bengal in respect of the said land. The defendant's case was that the Government of West Bengal had issued a notice to the effect that the plot holders in the Salt Lake city who did not construct buildings on their respective plots and kept the same vacant would be liable to return back the said plots to the Government of West Bengal for re-allotment to other persons. The defendant alleged that the plaintiff at that point of time was keeping the said plot vacant and did not have the necessary funds to make the construction and finding no other alternative the plaintiff who is the own maternal uncle of the defendant offered the defendant and his wife for construction of a building at the cost of the defendant and it was allegedly agreed that the defendant and his wife will construct the said one storied building at their own cost and will reside therein permanently generation after generation. The defendant also alleged that the parties had agreed that the plaintiff will never evict the defendant from the entire ground floor including mezzanine floor. The defendant also alleged that there would be a construction of one garage for the defendant and one space for garage would be kept vacant where the plaintiff or his son may construct his garage, if necessary, in future. The defendant further alleged that it was also agreed by and between the parties that the son of the plaintiff would be entitled to make construction of another floor at his own cost and will stay on such floor, that is, first floor without disturbing the defendant. The defendant alleged that the defendant and his wife constructed one storied building including mezzanine floor by spending about Rs. 9,00,000/- (Rupees Nine Lakhs). The defendant's case was that in view of the aforesaid agreement between the parties the defendant and his wife constructed the one storied building on the said land at their own cost and thereafter the defendant with his wife are living in the said house. The defendant denied the material allegations made in the plaint.
The said suit came up for hearing when evidence was adduced on behalf of the respective parties and the learned Trial Court by its judgment and decree dated 19th April, 2006 decreed the said suit and directed the defendant to quit and vacate the suit property and to hand-over the vacant possession of the suit property to the plaintiff within a specified period of time.
Challenging the said judgment and decree passed by the learned Trial Court the defendant filed title appeal No. 54 of 2006 which was placed before the learned 3rd Court of Additional District Judge at Barasat and the learned First Appellate Court by judgment and decree dated 5th November, 2011 allowed said title appeal by setting aside the judgment and decree passed by the learned Trial Court.
Being aggrieved by and dissatisfied with the judgement and decree passed by the learned First Appellate Court the plaintiff/appellant has filed the instant second appeal in this Court and a Division Bench of this Court by order dated 27.01.2012 was pleased to admit the appeal on the following substantial question of law:
"Whether according to the defendant the nephew(Bhagina) of the plaintiff leave was granted to him to make construction in a portion of the ground floor the plaintiff to make use and construct in other portions of the ground floor and on the first floor and the lower Appellate Court has failed to take notice of well established principle of law that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land, he would however entitled to remove the construction so raised by the application of the maxim quicquid plantatur solo, solo cedit."
When the second appeal came up for hearing the learned Senior Advocate appearing on behalf of the appellant submitted in the midst of his submissions that the following are also substantial questions of law which are required to be decided apart from the substantial question of law which was formulated at the time of admission of the appeal. Accordingly, the following substantial questions of law were formulated when the appeal came up for final hearing.
The following are such substantial questions of law:
"I) Whether or not the learned First Appellate Court was right in applying the provisions of Indian Easement Act, 1882 and/or Section 60 of the Indian Easement Act, 1882 in view of the provisions of the Government Grants Act, 1895 and the relevant clauses in the lease deed being Exhibit-9?
II) Whether or not the learned First Appellate Court was right in not holding that the defendant/respondent was allowed by the plaintiff/appellant to stay in the premises concerned as a relative and/or a caretaker and the defendant/respondent did not acquire any right and/or interest in such property?"
The learned Trial Court found that the defendant/respondent took the stand that excepting his right to stay in the suit property during his life time he has no other right in the suit property and thus the defendant depicted himself to be a licensee in the suit property. The learned Trial Court was of the view that the status of the defendant in the suit property is clear from the admission made by the defendant and as such the plaintiff's case does not suffer much even though the plaintiff had taken an alternative stand in the description of the defendant. The learned Trial Court found that there is no necessity of giving prior notice to the licensee for evicting the licensee from the property in respect of which such licence has been given and that the institution of the suit itself would mean that the licence has been lawfully revoked. The learned Trial Court was also of the view that in the instant case the plaintiff did not give a licence coupled with grant in favour of the defendant but it is a case where the defendant is only a licensee in respect of the suit property. While considering the question as to whether the defendant can take the benefit of Section 60(b) of the Indian Easement Act the learned Trial Court observed that as the defendant being a licensee in the suit property said that the defendant would continue to remain in the suit property during the natural life of the defendant and his wife and never assured the plaintiff that the plaintiff would be allowed to stay at the mezzanine floor and he would stay in the suit property permanently it could be said that the defendant denied the title of the plaintiff and as such the defendant is not entitled to get any benefit of Section 60(b) of the Indian Easement Act. The learned Trial Court was also of the view that in order to get any benefit of Section 60 of the Indian Easement Act, both the Clauses (a) and (b) are to be read conjunctively and not disjunctively. The learned Trial Court has found that the property in question was not transferred to the defendant at the time of giving such licence and thus the defendant is not entitled to get benefit of Section 60(b) of the said Act. The learned Trial Court found that the plaintiff has proved his case and thus he is entitled to get a decree. The learned Trial Court was of the view that since the defendant being a near relative of the plaintiff had spent a considerable sum of money for the construction of the suit property the defendant should be given a reasonable time for quitting and/or vacating the suit property.
The learned First Appellate Court held that no previous notice for demanding possession of the suit property is called for and thus the licensee is not entitled to be served with a notice to quit. The learned Lower Appellate Court was of the view that the learned Trial Court has rightly found that the defendant was a licensee in respect of the suit property. The learned First Appellate Court found that in the instant case it is an admitted fact that the plaintiff had acquired the suit land in the year 1981 by virtue of registered deed of lease and the defendant is a son of the elder sister of the plaintiff. The learned First Appellate Court took note of the evidence that the plaintiff had presented a certain book to the defendant on 15.08.1996 and, therefore, the relation between the parties was cordial at least till 15.08.1996 and thus the allegation made by the plaintiff that the defendant had claimed the house to be his own is unbelievable. The learned First Appellate Court affirmed the view taken by the learned Trial Court and observed that the learned Trial Court had rightly found that when the definite status of the defendant in the suit property is ascertainable from the admission of the defendant himself the plaintiff's alternative stand and/or contradictory statement with regard to the status of the defendant does not suffer much.
The learned First Appellate Court while considering the question with regard to the applicability of Section 60(b) of the Indian Easement Act observed that it appears from the facts of the case that the plaintiff had allowed the defendant to make construction on the suit property and the defendant in his evidence had admitted the title of the plaintiff in the suit property. The learned First Appellate Court took into consideration the observations of the learned Trial Court where the learned Trial Court had observed that as the defendant has stated that he would remain in the suit property during his natural life and never assured the plaintiff that the plaintiff would be allowed to stay in the mezzanine floor and he would stay in the suit property permanently and thus the defendant denied the title of the plaintiff and thus the defendant was not entitled to get any benefit of Section 60(b) of the Indian Easement Act in view of the decision reported at AIR 1997 SC 1041 ( (Head Note F) at para 14 page 1047. After considering this aspect of the matter the learned First Appellate Court was of the view that the decision of the Hon'ble Apex Court in the said reports as relied upon by the learned Trial Court has no application to the facts of the instant case. The learned First Appellate Court found that the defendant/appellant did not claim any right to possess the suit property throughout generations to come. On the question of applicability of Section 60 of the Indian Easement Act the learned First Appellate Court found that the learned Trial Court was not correct in its view and in the facts and circumstances of the instant case the plaintiff could not have revoked the licence granted to the defendant even if the plaintiff intends to make compensation of the amounts spent by the defendant for the purpose of construction. According to the learned First Appellate Court, any one clause of the said Section 60, if fulfilled, will make the licence irrevocable. It appears that the learned First Appellate Court relied upon the decision reported at 55 CWN 232. The learned First Appellate Court was of the view that the defendant must be extended the protection of Section 60(b) of the Indian Easement Act on the principle of justice, equity and good conscience. The learned First Appellate Court directed that the defendant and his wife should remain in the suit premises till their life. The learned First Appellate Court was of the view that even though the plaintiff has stated that he is ready to refund the money incurred by the defendant for constructing the house no relief can be granted to the plaintiff as because there is no provision in the said Section 60 of the Indian Easement Act whereby it could be said that the licensor can be permitted to revoke an irrevocable licence by making compensation of the amount which might have been spent by the licensee in making construction of the property in dispute.
The learned First Appellate Court thus allowed the title appeal by setting aside the judgment and decree passed by the learned Trial Court.
The learned Senior Advocate appearing on behalf of the appellant submitted that Ext.9, that is, the lease deed by which the appellant had become a lessee under the State of West Bengal in respect of the plot of land in question will show that the said plot of land in question is not transferable. He relied upon Clauses 7 and 8 of the said lease deed. In Clause 7 of the said lease deed it has been stipulated that the lessee shall not sub-divide or sub-let the demised land or the building to be constructed without the consent in writing of the Government and the Government shall have the right to refuse its consent in its absolute discretion. According to Clause 8 of the said lease deed, the lessee shall not assign or transfer the demised land or any part of the demised land and/or the structure erected thereon without the previous permission of the Government in writing. It has been further stipulated in the said clause that in case of transfer or assignment of the lease the lessor shall have the right of pre-emption and upon the exercise of such right the building constructed by the lessee on the land shall be taken over by the lessor at a valuation of the building made by the lessor on the basis of the costs of construction of the building less depreciation at the usual rate or the market value thereof, whichever is less. There are other stipulations in the said Clause 8 but such stipulations are not relevant for the purpose of disposal of the present second appeal.
According to the said learned Advocate, Sections 60(a) and (b) of the Indian Easement Act, 1882 is not applicable in the facts and circumstances of the instant case. According to the said learned Advocate, the appellant did not transfer the property and/or part of the property in dispute in favour of the respondent and as such the respondent cannot take the benefit of Section 60 of the said Act of 1882.
The learned Advocate for the appellant submitted that in the facts of the instant case the provisions of the Government Grants Act, 1895 will have to be taken into consideration. In Section 2 of the said Act of 1895 it has been stipulated that nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of any person whomsoever, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed. Section 3 of the said Act of 1895 stipulates that all provisions, restrictions, conditions and limitations over contained in such grant or transfer as mentioned in Section 2, as aforesaid, shall be valid and take effect according to their tenor any rule of law, statute or enactment of the legislature to the contrary notwithstanding. According to the said learned Advocate, the provisions of the Easement Act cannot have any application to the present case.
The said learned Advocate cited a decision reported at 59CWN 610 (The state of West Bengal -v- Birendra Nath Basunia & Ors.) and referred to Page 615 of the said reports where a learned Division Bench of this Court was pleased to rely upon a reported decision (Jnanendra Nath Nanda -V- Jadunath Banerjee, 42 CWN 81) where it was held that the effect of Section 3 of the Crown Grants Act was to exclude the operation of not merely the Transfer of Property Act, but of all laws. By citing the aforesaid reports the said learned Advocate submitted that the Indian Easement Act, 1882 cannot override the provisions made in the said lease-deed(Ext.9); on the contrary, the provisions of the said lease-deed will prevail over the provisions of the Easements Act, 1882. The said learned Advocate submitted that the Clauses (7) and (8) of the said lease-deed clearly prohibit the sub- division or sub-letting of the demised land or the building to be constructed thereupon and also prohibits transfer or assignment of the demised land or any structures to be erected thereupon without the previous written permission from the Government concerned. According to the said learned Advocate, there has not been any transfer or assignment or subletting or sub-division of the demised land or any structure standing thereupon. According to the said learned Advocate , the provisions of Section 60 of the said Act of 1882 is not applicable to the instant case. The said learned Advocate further submitted that the defendant/respondent should be evicted from the suit property as he has no right to continue to occupy the suit property. However, according to the said learned Advocate, the defendant may be compensated by the plaintiff appropriately as the defendant has raised structures on the demised land. The said learned Advocate, in support of his contention, referred to a decision reported at 1866 The Weekly Reporter, Vol-6 page 228 wherein it was observed inter alia to the effect that according to the usages and customs of this country, buildings and other such improvements made on land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil, and that it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser but is in possession under any bona fide title or claim of this, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil.
The said learned Advocate cited another judgment reported at 2012(5)SCC 370 (Maria Margarida Sequeira Fernandes & Ors. -V- Erasmo Jack De Sequeira(Dead) Through Lrs.) and referred to Paragraph 97 of the said reports which is quoted below:
"Principles of law which emerge in this case are crystallized as under:
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The Caretaker or servant has to give possession forthwith on demand.
(3) The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour. (5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
According to the said learned Advocate, the defendant is a relative of the plaintiff and that the defendant was at one point of time granted licence to occupy the suit property but such licence has been revoked and, therefore, the defendant should vacate the suit property and the plaintiff is entitled to get a decree for recovery of khas possession. The said learned Advocate submitted that the impugned judgment and decree passed by the learned First Appellate Court should be set aside.
The learned Senior Advocate appearing on behalf of the defendant/respondent submitted that one must look into the agreement between the plaintiff and the defendant to appreciate the facts of the case. The said learned Advocate submitted that even as per the plaint the defendant has been described to be a licensee in respect of the property in dispute and a life interest was created in favour of the defendant and the defendant is entitled to live in the suit premises till his death. The said learned Advocate submitted that the relationship between the parties is governed by the laws of licence and the Indian Easement Act, 1882 is applicable in the instant case. The said learned Senior Advocate for the defendant/respondent submitted that ordinarily a licence is revocable but in certain cases it may happen that such licence is an irrevocable one and a licensee cannot be evicted. The said learned Advocate referred to pleadings of the parties. Reference was made to the plaint wherefrom it would appear that the lease of the land was obtained by the plaintiff/appellant in the year 1981 but the construction could be started only after 11 years, that is, in the year 1992. In Paragraph 9 of the plaint it has been also stated that the defendant has also spent considerable amounts of money for the construction of the house apart from the fact that the plaintiff has also spent a good amount of the expenses for the house. It will further appear that the defendant was assured that so long as the defendant lives with his wife or the survivor of them they would live on the ground floor of the said premises and the status of the defendant would be that of licensee or life- tenant and nothing more than that. In Paragraph 11 of the plaint it has been alleged that the defendant was assured that he and his wife would be allowed to live in the ground floor of the premises till their respective natural lives and the plaintiff would shift to the mezzanine floor portion enjoying some facilities of the ground floor jointly with the defendant and gradually build the first floor for the plaintiff's occupation with the members of his family particularly his son who was then living in USA. The plaintiff/appellant has also stated in the said paragraph that the defendant has spent considerable sum of money for the purpose of construction in the said premises but the total expenses cannot exceed Rs. 9,00,000/- (Rs. nine lakhs). The plaintiff/appellant has also stated that the defendant is liable to pay mesne profits from August 1996 and the premises concerned could fetch Rs.10,000/- per month.
The learned Advocate for the defendant/respondent has also referred to Paragraph 9(ii) of the written statement wherein it has been stated that in 1990 the Government of West Bengal issued a circular to the effect that those lessees who did not make any construction on the plot concerned and kept such plot vacant the Government of West Bengal will take back the said plot and re-allot the same to other persons. It was stated in Paragraph 9(iii) that the plaintiff had no alternative but to offer the defendant and his wife for making construction of a building on the plot of land concerned at the cost of the defendant and the defendant and his wife readily accepted such offer. The said learned Advocate referred to the other sub-Paragraphs of Paragraph 9 of the written statement wherein it has been pleaded that there was a verbal agreement that the defendant and his wife will construct a one-storied building at the said plot at their own cost and will reside in such house permanently "by generation". It further appears from the said paragraph that the plaintiff is the maternal uncle of the defendant and as such the defendant did not insist for any written agreement. It has been also pleaded in other sub-paragraphs of the said paragraph 9 that the plaintiff had agreed not to evict the defendant from the suit property and the defendant and his wife constructed the one-storied building including mezzanine floor by spending about Rs. 9,00,000/- (Rs. nine lakhs). It has been also pleaded in the written statement that in view of the said agreement the defendant and his wife constructed the said building at their own cost on the plot of land concerned.
The said learned Senior Advocate for the defendant/respondent also referred to the evidence of PW.1 where the said PW.1 has stated that there was an understanding between the plaintiff and the defendant that the defendant along with his wife will reside in the suit building till the end of their life. The said learned Senior Advocate further referred to the evidence of DW.1 wherein he has stated that he has never claimed ownership of the land and building but as per the agreement between the parties the defendant and his wife are entitled to live in the said house without paying any rent etc. as long as they live. The learned Senior Advocate appearing on behalf of the respondent further submitted that the licence granted in favour of the defendant by the plaintiff is an irrevocable one and the provisions of Section 60 of the Indian Easement Act are applicable, particularly the provision of Section 60(b).
The said learned Advocate referred to a decision reported at AIR 1987 Supreme Court 1242(Ram Sarup Gupta(Dead) by L.Rs., -V- Bishun Narain Inter college & Ors.). in support of his contention that since the defendant was inducted as a licensee in respect of the suit property by the plaintiff and the case of the plaintiff is that the defendant had made constructions in the suit property as per the agreement between the parties, the licence granted in favour of the defendant is an irrevocable one.
The said learned Advocate cited another decision reported at 49CWN 346 (Arpan Ali & Anr. -V- Jnanendra Kumar Pal Choudhury & Anr.) wherein it has been observed, inter alia, that licence is ordinarily revocable at will but it is not so if such licence is coupled with the grant.
The said learned Advocate cited another decision reported at 71 CWN 302 (P.Bhaskaran & Ors. -V- The Indian Iron & Steel Co. Ltd. & Ors.) in support of his contention that licence, as a general rule, is revocable at the will of the grantor. But the licensor cannot revoke the licence on the faith whereof works of permanent character have been executed and expenses incurred, not at any rate till the licensee had been indemnified.
The said learned Senior Advocate for the respondent submitted that licence granted in favour of the defendant by the plaintiff was an irrevocable one and the provisions of the said Section 60(b) are applicable in the facts of the instant case. According to the said learned Advocate, the appeal should be dismissed, as it has no merit.
Having heard the learned Advocates for the respective parties and having considered the relevant materials on record the fact that emerges is that the plaintiff/appellant had obtained a lease from the State of West Bengal in respect of the plot in question and such lease was subject to the terms and conditions contained in the said lease deed(Ext.9). It also appears that the plaintiff permitted the defendant/respondent to make substantial construction in the property in dispute, that is, on such demised land on the ground floor of the said premises and pursuant to such permission the defendant/respondent had spent considerable amount of money for the purpose of making the construction on the ground floor of the said premises. It also appears that there was an agreement between the parties that the plaintiff would be entitled to make further constructions in the said premises to accommodate his family. Of course, the plaintiff has also alleged that the plaintiff has also spent a good amount of money for the purpose of making construction in the said premises as it now stands. Be that as it may, it cannot be said that the defendant/respondent came to the premises in dispute as a trespasser. The defendant/respondent was allowed by the plaintiff/appellant to occupy the suit property. It appears from the arguments made by the learned Advocates for the respective parties that the main question in dispute in the present case is whether or not the licence that was granted by the plaintiff/appellant to the defendant/respondent in respect of the suit property was an irrevocable one and also as to whether or not the provisions of Section 60 of the Indian Easement Act, 1882, particularly, Section 60(b), are applicable to the facts and circumstances of the instant case.
It appears from the Government Grants Act, 1895 that the provisions contained in the lease deed, by which the lease was granted by the State of West Bengal to the plaintiff, cannot be nullified by any provision of any law as per Section 3 of the Government Grants Act, 1895, as already mentioned above. If Clauses 7 and 8 of the said Ext.9 are taken into consideration it will appear that sub-division or sub-letting of the demised land or building which may be constructed thereupon cannot be done without the previous written permission from the Government concerned. In the instant case, it does not appear any such permission was ever obtained from the Government concerned. It is also the case of the plaintiff/appellant that there was never any transfer of the land in dispute in favour of the defendant/respondent. The case of the defendant/respondent is that a licence was granted to the defendant/respondent by the plaintiff/appellant to occupy the suit property by making constructions thereupon.
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.
It is true that it appears from the materials on record that the plaintiff/appellant had agreed to allow the defendant/respondent and his wife to occupy the suit property, that is, the building which was constructed on the demised land, during their natural life and the defendant/respondent did make substantial contribution, monetarily, for the purpose of making such construction but in view of the provisions contained in the said lease deed (Ext.9) it cannot be said that an irrevocable licence was granted in favour of the defendant/respondent. If one has to hold that the defendant/respondent has acquired an irrevocable licence in respect of the property in dispute then in that event the State of West Bengal would find it extremely difficult to exercise its right under the said lease deed. The facts and circumstances as indicated in the reported decisions cited on behalf of the defendant/respondent were quite different from the facts and circumstances of the instant case and as such the said reported decisions cited on behalf of the defendant/respondent cannot be of any assistance to the defendant/respondent in the facts and circumstances of the instant case.
To solve the present dispute the reported decision cited on behalf of the plaintiff/appellant, that is, the one reported at 1886 The Weekly Reporter Volume 6 Page 228 can be of assistance. Since the defendant/respondent did not enter the property in dispute as a trespasser but he was allowed to occupy the said property by making construction thereupon, he may be adequately compensated by the plaintiff/appellant for the value of the building if the building is allowed to be retained for the benefit of the plaintiff/appellant. Of course, the defendant/respondent can also have the option of removing the building materials from the property in dispute and restoring the land to the state in which it was before the improvement was made but such option may not be as beneficial to the defendant/respondent as it may be if the plaintiff/appellant is directed to compensate the defendant/respondent adequately by allowing the plaintiff/appellant to retain the building as it is in the suit property. This Court is of the view that the learned First Appellate Court was not correct in extending protection of Section 60(b) of the said Act of 1882 to the defendant/respondent. The learned First Appellate Court should have taken into consideration the terms and conditions set out in the lease deed being Ext.9 and then it should have also taken into consideration the effect of the provisions of the Government Grants Act, 1895. In the facts and circumstances of the instant case it cannot be said that the defendant/respondent has acquired any interest in the suit property even by making constructions therein with the consent of the plaintiff/appellant. This is so in view of the terms and conditions contained in the said lease-deed(Ext.9). It will appear from the provisions of the Government Grants Act that the Government concerned will be entitled to impose limitations and prescribe restrictions in respect of grants and/or transfers made by such Government.
In view of the discussions made above, this Court is of the view that the licence granted by the plaintiff/appellant to the defendant/respondent in respect of the suit property was a revocable one and the plaintiff/appellant has revoked such licence. Thus, the plaintiff/appellant is entitled to a decree for eviction against the defendant/respondent but at the same time, the defendant/respondent is also entitled to adequate compensation from the plaintiff/appellant in view of the fact that pursuant to the licence granted by the plaintiff/appellant the defendant/respondent had made constructions at his own cost on the said demised land.
Accordingly, the appeal is disposed of by setting aside the judgments and decrees passed by the learned Courts below and the matter is sent back to the learned Trial Court with the following directions to the learned Trial Court. The learned Trial Court shall pass a decree for eviction in favour of the plaintiff/appellant directing the defendant/respondent to quit and vacate the suit property and deliver up khas possession of the suit property in favour of the plaintiff after the learned Trial Court makes an inquiry as to the adequate compensation that the plaintiff/appellant should be directed to pay to the defendant/respondent in respect of the construction standing in the suit property in respect of which the defendant/respondent had contributed substantial amount of money. Such inquiry should be made at the cost of the plaintiff/appellant by appointing a competent person to go into such question of adequate compensation. It is made clear that after such enquiry is made and a conclusion is arrived at by the learned Trial Court, the learned Trial Court shall pass the aforesaid decree for eviction in favour of the plaintiff/appellant and grant reasonable time to the defendant/respondent to quit and vacate the suit property and the learned Trial Court shall also simultaneously pass a decree for adequate compensation payable by the plaintiff/appellant to the defendant/respondent within a reasonable time.
The appeal stands disposed of.
There will be no order as to costs.
Let the lower court records be sent back to the learned Trial Court concerned immediately.
Urgent certified Xerox copy of this judgment, if applied for, shall be given to the parties on compliance of usual formalities.
(TAPAN KUMAR DUTT, J.)