1. This appeal has been preferred against the judgment dated 25.10.2002 passed by Additional District Judge, Jalaun at Orai in civil appeal no. 143/1995 Lala Hemant Pat Singhania v. Har Narain.
2. Original suit no. 142/1988 (Lala Hemant Pat Singhania v. Har Narain) was filed for the relief of eviction and realization of damages. The plaint case in brief was that earlier owner of the disputed property was Lala Radha Kishun who established an oil mill and constructed buildings including the residences for employees. He had admitted defendant Har Narain over disputed property as licensee, on condition that he will maintain it, carry on its repairing, and the vacate it when asked to do so. After the death of Lala Radha Kishun the plaintiff became owner of the disputed property. The plaintiff was in need of disputed property for the purpose of business so he asked the defendant to vacate this property, and served a legal notice dated 17. 9. 1987 for vacating it and handing over its possession to plaintiff, but instead of the vacating that defendant gave incorrect reply with averment that he had constructed the house in question and his status is that of irrevocable licensee. Then the plaintiff filed suit for eviction of defendant from disputed property and for realization of damages for its use and occupation.
3. The defendant filed written-statement by which he admitted that receiving of notice of the plaintiff and reply given by him but he denied the plaint case and further pleaded that he had constructed the building present on disputed property from his own money and is owner of the same. He had been admitted on 60 Dismil land in year 1946 from Lala Radha Kishun, and then spent Rs. 10,000/- for raising the construction. The plaintiff has knowledge of this construction since 1974 without any objection. Now plaintiff has no right to cancel the license. Plaintiff had never promised Lala Radha Kishun to vacate the property on asking. Plaintiff's case is based on incorrect facts and is liable to be dismissed.
4. The trial court had framed issues, accepted evidences of the parties and thereafter Civil Judge, Jalaun at Orai had passed the judgment dated 27.01.1993, by which original suit was dismissed with finding that disputed construction was made by defendant after obtaining permission from Lala Radha Kishun, and considering the nature of permanent structure raised by the defendant, his license cannot be revoked.
5. Against this judgment of trial court, plaintiffs had preferred Civil Appeal no. 142/1995 (Lala Hemant Pat Singhania v. Har Narain). The first appellate court (Additional District Judge, Jalaun at Orai) had afforded opportunity of hearing to the parties, and the passed judgment dated 26.10.2002 by which the appeal was allowed and the judgment of trial court was set aside, and the suit was decreed for the relief claimed. In this judgment the first appellate Court had considered the point of determination as to whether the defendant licensee had raised the permanent construction over disputed property after obtaining the license. The lower appellate had independently appreciated the evidences available on record and reached the rooms etc. constructions present on disputed property of their constructed by the Lala Radha Kishun, and that Lala Radha Kishun had of the drawn the business in year 1955-1956, and till then no construction was raised by defendant there; and Lala Radha Kishun had no need to keep any person for taking care of the business, therefore the purpose of the license had already come to an end. If any person has remained there on disputed property, then he cannot have ownership right. This Court has also held from the evidences adduced by the defendant it is not proved that he had made in the construction on disputed land. This Court had meticulously scrutinized the evidences adduced by the parties, especially that of the defendant and gave specific finding of fact that he had failed to prove the case of his pleading. This Court had held that admittedly defendant had been admitted over disputed property as licensee, and his license has been revoked, therefore he is liable for eviction. With these findings the first appellate Court had allowed the appeal.
6. Aggrieved by this judgment of first appellate court, this second appeal has been preferred by the defendant of the original suit.
7. This Second Appeal had been admitted on following substantial questions of law:
(1) Whether the lower appellate court was justified in reversing the trial court finding that the constructions in dispute and appurtenant land having a total area of about 60 decimals were made during 1946 to 1950 with Radha Kishan's permission for residence of the defendant as claimed by the defendant or were pre-existing constructions since the time of the construction of the cotton mill which on plaintiff's case was of the first decade of the century?
(2) Whether the suit can be decreed on the ground of termination of license in the absence of the plaintiff's satisfactorily showing when permission to use the construction was given and how such substantial constructions were allowed to be used for about 40 years by his father and himself before serving the notice of termination of license in 1987?
8. Learned counsel for the appellant contended that although defendant was admitted on disputed property as licensee of the plaintiff, but the defendant had raised constructions of permanent nature on his expenses, therefore the provisions of Section 60 of the Indian Easement Act, 1882 bars the right of plaintiffs, the grantor of license, to revoke license. He submitted that trial court had rightly found that defendant licensee had raised permanent construction, so his license could not be revocated and the original suit was rightly dismissed; but these facts were not properly appreciated by first appellate court, who allowed the appeal and passed erroneous judgment, which should be quashed.
9. These contentions were refuted by learned counsel for the respondent, who submitted that trial court has superficially and summarily gone through evidences adduced and could not appreciate that disputed constructions were not raised by the defendant licensee, but were present before coming into existence of license. He further alternatively contended that in any case, the permission of grantor of license for construction was not proved, nor trial court had given any such specific finding. He also submitted that under Section 60 of the Indian Easement Act, the bar of revocation of license is only when the work of permanent nature was done in accordance with license and not otherwise, but in present case it is not proved that acting upon the license alleged construction was raised. Therefore the first appellate court had appreciated these things properly and passed impugned judgment correctly, therefore the appeal should be dismissed.
10. It is admitted fact that plaintiff was grantor of the license of the disputed property to defendant-licensee for residing there at disputed property. It is also admitted that after arising of cause of action, plaintiff had revoked such license. The point of determination in this matter was as to whether constructions were raised by defendant-appellant, and if so, then whether those constructions were raised in accordance with terms of license and acting upon the license. Section 60 of the Indian Easement Act reads as under:-
"60. License when revocable.-- A license 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 license, has executed a work of a permanent character and incurred expenses in the execution."
11. Although first appellate court had given specific finding on the basis of evidences that the constructions present on disputed property were not raised by defendant-appellant and were present since before the grant of license in question, and such finding is based on evidences and appears correct. But if it is accepted for some time for the sake of argument that those constructions were raised by defendant, then it has to be considered that whether for raising such alleged construction, license of plaintiff cannot be revoked.
12. As discussed in Section 60 (b) that a license may be revoked by its grantor unless the licensee has executed a work of permanent character, acting upon the license. "Acting upon the license" means acting upon right granted to do upon premises of grantor something which would have been unlawful in absence of such right. The construction of permanent works itself would not render a license irrevocable unless such work had been executed by the licensee in pursuance of the license granted to him. Construction of building on land, when the license was not granted for building purposes, would not attract the provisions of Section 60 and render license irrevocable.
13. In present matter, from the adduced evidences, plaintiff could not prove that he he had raised the constructions on disputed property in accordance with the terms of license or acting upon the license. In its judgment, trial court had tried to show that the constructions of permanent nature present on disputed property were raised by defendant within knowledge of the plaintiff and his father; but no specific finding was given on point that any such specific consent or permission was given either by plaintiff or by his father to licensee-defendant to raise construction of permanent character. It is also pertinent to mention that from evidences it is proved, as well as admitted, that defendant was admitted on disputed property for taking care of the Oil Mill and its premises. Such license cannot impliedly attracts the permission to raise building or any permanent construction. A care taker acting upon the license, cannot execute a work of permanent nature without specific direction or grant of license for this purpose. Therefore, although the finding of first appellate court regarding the construction on disputed property was not raised by defendant-appellant is found correct, but even if it is accepted for the sake of argument that defendant-appellant had raised constructions in question on disputed property, then in that case also those construction were not in accordance with terms of grant of license and cannot be said that acting upon the license the defendant-licensee had executed work of permanent character. So said construction cannot confer any right to appellant.
14. The first appellate court had meticulously scrutinized the available evidences including those points, which had lost the sight of trial court and gave finding that nature of construction proves that they are raised much before the grant of license in question, and also that at the time of raising of constructions in question, the defendant was a labourer and was not financially capable of making such big constructions. First appellate court had also scrutinized evidences that defendant had failed to prove that constructions were, in fact, raised by him and from the evidences it is proved that those constructions were much older, which were raised before grant of license to defendant-appellant. Thus, first appellate court had given specific finding that the construction work of permanent character present on disputed property were not executed by the appellant-defendant, they were not executed by defendant-appellant acting upon the license in question. It has been specifically held by first appellate court that in any case no permission or license was granted by plaintiff-respondent or his father to defendant-appellant to execute any work of permanent character. On the basis of evidences, those conclusions of first appellate court appears correct that the disputed constructions were pre-existing before the grant of license in question to defendant-appellant. The findings given by lower appellate court is more meticulous and reasoned than the apparent superficial findings given by trial court. The reasons for reversing the finding of trial court are apparently correct and acceptable. Such finding of fact cannot be interfered in absence of any satisfactory reason. Therefore, first substantial question of law is decided against appellant-defendant and in favour of respondent-plaintiff.
15. It has been admitted fact, which is proved from evidences that plaintiff had revoked license of defendant. Revocation of license by plaintiff in this case is not disputed fact. The contention of appellant side was that this license was terminated without satisfactory reasons. This contention is found correct and acceptable that plaintiff was grantor of the license and he can revoke the license any time unless bar mentioned in sub-section (a) or (b) of Section 60 of the Indian Easement Act, 1882 come into operation. As has been held earlier that bar of Section 60 (a) or (b) of the Easement Act is not applicable in this matter.
16. It is settled legal position that a bare license can always be revoked by grantor. A license unlike a contract, creates no mutual obligation and rights between the parties and it may be revoked under Section 60 above except when it is one which falls within the exception mentioned in this provision. In present matter, the case of revocation of license does not fall within exception of Section 60, as has been discussed above, mere serving of notice of termination of license is sufficient to terminate the license, as has been done by the plaintiff-respondent in this matter. Accordingly, second substantial question of law is also decided against defendant-appellant and in favour of plaintiff-respondent.
17. On the basis of above discussion, it is found that there is no factual or legal error or illegality in the judgment of first appellate court, when it had allowed the appeal, set aside the judgment of trial court and decreed the original suit. The findings of first appellate are found correct, which are hereby confirmed.
18. Accordingly, this appeal is dismissed.
Order Date :-20.05.2016 SR