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During the pendency of the suit, Shri Durga Charan Barua died and his legal representatives were brought on the record. The trial court by a common judgment and order decreed suit No. 36/67 filed by late Shri Durga Charan Barua directing khas possession to be given to the plaintiff by the defendant and dismissed suit No. 23/69 filed by respondent No. 1 by returning a finding that there was no evidence to show that respondent No. 1 had entered into any agreement to purchase the suit land with late Shri Durga Charan Barua nor was there any evidence to show that he had paid the sum of Rs. 7860/- to Durga Charan Barua. The trial court held that the story of an oral agreement to sell the suit land was a concocted one. Aggrieved by the judgment and decree of the trial court, respondent No. 1 preferred two separate appeals before the District Judge, Jorahat. Vide judgment dated 21.8.78 the District Judge dismissed both the appeals and confirmed the judgment and decree passed by the Trial Court in both cases. The respondent No. 1 thereupon preferred two second appeals before the High Court being SA No. 77/79 arising out of suit No. 23/69 and SA No. 85/78 arising out of judgment and decree in suit No. 36/67. The High Court vide judgment and order dated 4.8.88 dismissed second appeal No. 77/79 and upheld the concurrent findings of the two courts to the effect that the story put forward by respondent No. 1 regarding the existence of an oral agreement to sell, had no truth in it. The plea put forward by respondent No. 1 of his occupying the suit land pursuant to the oral agreement to sell was rejected. It was found that respondent No. 1 had been given possession of the suit land as a licencee by the plaintiff as alleged in the 12.8.88 allowed second appeal No. 85/79 arising out of suit No. 36/67 and by the said judgment granted benefit of the provisions of Section 60(b) of the Indian Easement Act, 1882 (hereinafter called the `Easement Act') holding the licence to be irrevocable on the principles of "justice, equity and good conscience". The High Court relying on the report of the local commissioner of 1975 came to the conclusion that the structure raised by respondent No. 1 was of a permanent nature and therefore the protection under Section 60(b) of the Easement Act was available to him and he could not be evicted from the suit land. The preliminary objection raised by the appellants, that no plea on the basis of which the benefit of the provisions of the Easement Act was now being sought for the first time in the second appeal had been raised in the written statement; that no issue had been framed and no evidence was led by the parties before the trial court regarding the availability of the benefit of Section 60(b) of the Act and that even in the First Appellate Court, no such plea had been raised and, therefore, the same could not be allowed to be raised for the first time in the High Court in the Second Appeal, was rejected and the second appeal, was allowed setting aside the concurrent findings of fact.

The learned Single Judge noticed that the Easement Act had no application to the State of Assam, but went on to opine that the defendant was protected by Section 60(b) of the Act which `operates' in this case relying upon the view expressed by Tek Chand, J. in Jagat Singh V. District Board, [AIR 1940 Lahore, 409] which had relied upon the opinion of Suleman, CJ in Mathuri Vs. Bhola Nath. [AIR 1934 All. 517].

The approach of the learned Single Judge in our opinion was erroneous. Once it was found that the Easement Act had no application to the State of Assam, the question of "clearing the way for Section 60(b) of the Act to operate"

cannot at all arise. Of course, the principles of "justice, equity and good conscience" on which Section 60(b) of the Easement Act rests may apply in the facts and circumstances of a given case but that is not to say that though the Easement Act does not apply, provisions of Section 60(b) of the Easement Act still "operate". Since, the legislature did not intend the Act to apply to Assam, the learned Single Judge could not have defeated that intendment by holding that "the defendant of the present case was protected by Section 60(b) of the Act." It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary.

Even otherwise, the grant of relief to the respondent even on the principles of "justice, equity and good conscience" which doctrine appears to have been pressed into aid, was on the facts and circumstances of the case, not permissible. A court of equity, it should be remembered, must so act as to prevent perpetration of a legal fraud. It is expected to do justice by promotion of honesty and good faith, as far as it lies within its power. A party seeking relief in equity must come to the court with clean hands. In the present case, the respondent herein denied that he was a licencee of the appellant or had been given permissive use to raise temporary structures on the suit land for a period of two years. He set up a `title' to the suit land as a `prospective purchaser' on the basis of an `oral agreement to sell in himself claiming to have occupied the suit land in his capacity as a "prospective purchaser". All the three courts, including the High Court, found that plea of the respondent to be `false' in the suit for specific performance filed by the respondent. S.L.P. against the judgment and decree, was also dismissed by this Court. How then could the respondent be found entitled to any relief in equity, when his defence was based on falsehood? We have noticed the conduct of the respondent in denying the title of the appellant herein and putting forward a plea which has been concurrently found by all the courts to be false. He, therefore, certainly did not come to the Court with clean hands. Thus, even if it be assumed for the sake of argument, that the principles of `justice, equity and good conscience' underlying the provisions of Section 60(b) of the Easements Act, could be attracted in a given case in the State of Assam where the Easements Act had not been extended, the conduct of the respondent disentitled him to any relief on the basis of `equity, justice and good conscience'. The reliance placed by the High Court on the Division Bench judgment of the Lahore High Court in the case of Jagat Singh and others vs. District Board (supra) is misplaced. Indeed in the Province of Punjab, the Easements Act was not in force and Tekchand, J. speaking for the Curt invoked the common law doctrine of `equity, justice and good conscience', which the learned Judge found to be substantially the same as that contained in Section 60 of the Easements Act, to decide the Letters Patent Appeal. On facts, it was found that the land in dispute was being actually used by the District Board for the purpose for which it had been given to it on licence. It was also established on facts that more than 10 years ago, the defendant had erected a boundary wall and a pucca gate at a considerable cost and that those works were of a permanent character. It was in this fact situation that Tekchand, J. held that even if the Easements Act was not applicable to the Province of Punjab, it was not open to the appellant to revoke the licence, on their option and resume the land, since construction of permanent character had been build by the defendant acting upon the licence granted by the appellant to him on principles of `justice, equity and good conscience'. The fact situation in Jagat Singh's case (supra) was, thus, totally different. The licencee therein had raised a permanent construction acting upon the licence after incurring expenditure for raising the permanent construction and it was for that reason that the court held that the licence could not be revoked at the sweet will of the licensor. In the present case, the respondent has categorically denied to be a licencee of the appellant or that he had raised any construction acting on the licence. He was, thus, not entitled to any relief in the second appeal. The judgment of the High Court under the circumstances cannot be sustained. This appeal succeeds and is allowed. The judgment and order of the High Court are hereby set aside and the judgment and decree of the Trial Court, as confirmed by the First Appellate Court, are restored. We, however, make no order as to costs.