Kerala High Court
Geetha Varma And Ors. vs V.K. Amminikutty Nambishtathiri Amma ... on 16 February, 1995
Equivalent citations: AIR1995KER168, AIR 1995 KERALA 168, (1995) ILR(KER) 2 KER 563, (1995) 1 KER LJ 348, (1995) 1 KER LT 525, (1995) 1 RENCR 398, (1995) 2 RENCJ 438
JUDGMENT Pareed Pillay, C.J.
1. Plaintiffs are the appellants. They filed the suit for partition and recovery of possession of their share in the plaint schedule property. Late Ravi Varma and defendants 1 to 6 are the children of Kunhi Pilla Nambishtathiri Amma. The suit property belonged to Kunhi Pilla Nambishtathiri Amma. The suit was originally filed for a declaration that Ext. A-4 licence executed in favour of the predecessor of the 7th defendant stood terminated and also for a direction to the 7th defendant to return the property after demolishing the buildings and other structures constructed by him and his predecessors.
2. First plaintiff is the widow of late Ravi Varma, plaintiffs 2 and 3 are their children. Esso Standard Eastern Incorporated is the predecessor of Hindustan Petroleum Corporation Limited. Licence was granted over the western portion of the property in favour of Thattil Agencies as per Ext. A-1 dated 7-4-1954 by Kunhi Pilla Nambishtathiri Amma. Eastern portion was given as per Ext. A-2 dated 14-8-1961 to Standard Vacum Oil Company. The portion covered under Ext. A-1 licence was surrendered by the licensee as per Ext. A-3 dated 22-9-1970 in favour of the children of Kunhi Pilla Nambishtathiri Amma. The period of licence to Standard Vaccum Oil Company expired and the licensor got possession of the entire property. It is thereafter that Ext. A-4 licence was granted by the licensor to Esso Standard Eastern Incorporated (predecessor of the 7th defendant). Licence fee for the first five years was Rs. 750/ - per month and for the next five years Rs. 900/- per month. The period expired on 30-9-1980. The suit was filed on 29-11-1980,
3. 7th defendant contested the suit contending inter alia that though Ext. A-4 is styled as a deed of licence it is really a lease and therefore as per Esso (Acquisition of Undertakings in India) Act, 1974 the 7th defendant is entitled to have renewal of the lease for a further period of seven years. It is also contended that the 7th defendant is entitled to the benefit under Section 106 of the Kerala Land Reforms Act.
4. The trial Court negatived the aforesaid contention and held that 7th defendant is not entitled to claim the benefit under Section 106 of the Kerala Land Reforms Act. Even though the claim under Section 106 of the Act was rejected the learned Sub Judge dismissed the suit on the ground that the 7th defendant is entitled to get the benefit of Section 60(b) of the Indian Easements Act as it has constructed permanent structures in the property.
5. There is no dispute among the sharers. Counsel appearing for the 7th defendant submitted that the cross objection is not pressed. In view of the above submission it is not necessary at all for us to analyse the findings of the learned sub Judge with regard to his conclusion on that aspect of the matter.
6. The only point that arises for consideration is whether the 7th defendant is entitled to the protection under Section 60(b) of the Indian Easements Act. Ext. A-3 release deed executed by Thattil Agencies mentions the existence of buildings and installations in the western portion of the property. Ext. A-4 says that the licensees have already transferred all the buildings, equipments and installations to the licensors. It is thereafter that Ext. A-4 licence was granted in favour of Esso Standard Eastern Incorporated. In Ext. A-4 it is mentioned that the licensee after the period of licence is bound to remove the buildings, fittings and other structures constructed by it.
7. Section 60(b) can have operation only if the licensee has acted upon the licence and erected structures or constructions of permanent character. "Acting upon licence" means the state of mind of the licensee at the time when he constructed the structures or building. In a case where the licensee has considered himself to be a lessee or mortgagee and has constructed the building or erected other structures in the property he would not be entitled to get the benefit under Section 60(b). 7th defendant in its written statement stated that it is as a lessee that it has effected improvements in the properly. If that be so 7th defendant cannot claim the benefit under Section 60(b).
8. Section 60(b) is based on implied grant. In the case in hand it is not possible to hold that there was an implied grant. On the other hand Ext. A-4 agreement discloses the fact that the licensee has to remove the structures, buildings and installations after the expiry of the period of the licence. As the 7th defendant has agreed to remove the structures, installations and buildings which it had put up in the property it cannot claim the benefit of Section 60(b). In Gopalan Gangadharan v. Devassia, (1989) 2 Ker LT 912 this Court had occasion to consider a case similar to the one in hand. In Gopalan Gangadharan's case the defendant had agreed in the licence agreement that he would vacate the premises after dismantling the structures. This Court held that in view of the agreement defendant cannot thereafter contend that the licence has become irrevocable under Section 60(b) and that he is not liable to perform his obligation under the solemn agreement. It was further held that having entered into such a contract defendant cannot adopt such a belated posture to refute the provisions in the agreement which he had solemnly undertaken on the ground that the licence has become irrevocable in view of Section 60(b) of the Act. As the rule of irrevocability has its basis on the principle of an implied grant it cannot have any operation when there is express contract between the parties. The Indian Easements Act does not preclude the parties entering into such agreement. So long as the contract is not vitiated or rendered invalid in any manner it is not possible to hold that the contract makes inroads into the conditions of irrevocability provided in Section 60 of the Act. It is not possible to hold that this is a case where the licence was revoked when the licensee effected constructions in the property. As Ext. A-4 specifically permitted the licensee to effect constructions and put installations in the property on the specific undertaking that it should dismantle the same after the expiry of the period of licence the 7th defendant's contention that the licensors (plaintiffs) cannot recover the property from it in view of Section 60(b) of the Act is not tenable.
9. It is settled law that the contract to the contrary disentitles the licensee from deriving advantage conferred by Section 60. In Ganga Sahai v. Badrul Islam, AIR 1942 All 330 the Allahabad High Court held that the contract to the contrary disentitles the licensee from deriving advantage conferred by Section 60. There is nothing to preclude a party from binding himself to surrender land, although there may be a construction of permanent character standing thereon. If there was no contract to the contrary the position would indeed be different. As the licensee has expressed in unequivocal terms that the licensor can get the site vacated and that the licensee would dismantle the structures etc. in the property it is not open to the latter to bank upon Section 60(b). It is also useful to refer to Chotey Lal v. Durga Bai, AIR 1950 All 661 where the Allahabad High Court held:
"Where a" licensee executes a work of a permanent character under a clear understanding that he or his heirs may be called upon after certain time to leave the land, it is not open to him to plead such work as a bar against his eviction on a suit brought by the plaintiff in pursuance of the solemn undertaking given by him."
10. The learned Sub Judge obviously overlooked the crucial point for determination. The legal position is that the 7th defendant having entered into a contract that it would vacate the premises after dismantling the structures it cannot later adopt the stand that it is not bound to do so in view of the constructions effected by it in the property. As the agreement between the parties is not vitiated or rendered invalid by any legal provision 7th defendant cannot derive any advantage conferred under Section 60.
11. We therefore hold that the 7th defendant is liable to be evicted from the property. The judgment and decree of the Sub Judge are set aside. Decree is granted directing the 7th defendant to surrender possession of the plaint schedule property for partition and separate allotment of the same to the plaintiffs with mesne profits.
The Appeal is allowed. Cross objection is dismissed. No costs.