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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:

"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."

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.