JUDGMENT D.C. Srivastava, J.
1. This is defendants' second appeal.
2. The brief facts are that the plaintiff Mohd. Faruque filed a suit for recovery of possession of the property mentioned in Schedule 'A' of the plaint against the defendant Manjoor Ahmad, on the ground that the plaintiff was the owner of the property under a registered gift-deed dated 6th September, 1958. The defendant Manjoor Ahmad was granted licence of the disputed portion on his request on licence fee of Rs. 10 per month only for six months. He, however, did not vacate the property and also failed to pay the licence fee with effect from 16th August. 1982. The licence was revoked by the plaintiff through the notice dated 16th March, 1983. Again neither the balance licence fee was paid nor the portion was vacated.
3. The suit was contested on the ground that no licence was granted by the plaintiff and that the defendant was the owner of the house and it was in possession of his forefathers as well and long possession for more than 100 years, conferred title upon the defendant in the disputed property. It was also pleaded that since at the time of abolition of Zamindari, the defendant was in possession of the house, hence it was settled with him under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. It was further pleaded that the thatch over the disputed portion was gutted twice which was repaired and the defendant constructed pucca house in the knowledge of the plaintiff, hence the suit is barred by estoppel and acquiescence. It was also pleaded that the suit is barred by limitation.
4. The trial court dismissed the suit. An appeal was preferred, which was allowed. The decree of the trial court was set aside. The suit for possession was decreed, but not for recovery of damages. Parties were directed to bear their own costs. It is, therefore, this appeal.
5. A cross-objection has also been filed by the respondent, in which it is stated that once the appellate court came to the conclusion that the defendant was licensee on Rs. 10 per month and the licence was revoked, the lower appellate court committed error in refusing to grant decree for damages, without assigning any reason and that the lower appellate court was further in error in directing the parties to bear their own costs.
6. At the time of admission of appeal, it was admitted on questions of law formulated at serial Nos. C and D in the memo of appeal.
7. Question No. D does not arise because there can be no settlement with the appellant regarding house under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. This question is answered against the appellant.
8. The only question is whether the appellant constructed the house in dispute and became permanent licensee and the decree for eviction cannot be passed. After hearing learned counsel for the parties and perusing the material on record, I find that this question of law also cannot be answered in favour of the appellants. The trial court found that the defendant became owner of the house on the ground of long possession. The lower appellate court considered the entire material on record and came to conclusion that the plaintiff was owner of the house and that it was given on licence to the defendant on monthly licence fee of Rs. 10 in the year 1974 (on 16th August, 1974) for a period of eight months only. The trial court did not record any finding on licence. Reversal of the finding of the trial court by the lower appellate court is supported by cogent reasons and evidence on record. Agreement of licence, Ext. 4, was properly considered by the lower appellate court. The lower appellate court rightly held that by virtue of gift-deed dated 6th September, 1958 executed by Smt. Rabia, the plaintiff became owner of the property Certified copy of the gift-deed (paper No. 21 C) was filed. It was admissible in evidence. The properties described in the gift-deed were considered in the judgment of the lower appellate court. Certified copy of the gift-deed was, therefore, rightly considered and since it was more than 20 years old document, it could be relied upon. Other evidence was also considered and the finding of the lower appellate court that the defendant was licensee on Rs. 10 per month from the plaintiff is based on proper appraisal of evidence on record. Such finding cannot be disturbed in second appeal.
The lower appellate court has again rightly repelled the defendant's plea of adverse possession. Ingredients of adverse possession were neither pleaded nor proved.
9. The lower appellate court was further justified in recording finding that the defendant did not acquire title by long possession exceeding hundred years. It further found that the licence was revoked through a notice. After revocation of licence, the plaintiff was entitled to recover possession.
10. The plea was raised in this second appeal that the room was constructed by the defendant acting upon the licence, hence it became irrevocable licence under Section 60 of the Easements Act. The plea of estoppel and acquiescence has no force and substance because even if the defendant's version is accepted that the thatch was gutted twice and it was got repaired by him, it would not amount to estoppel against the owner. A licensee cannot be permitted to raise such plea against the real owner. Since the case of the plaintiff is that the room owned by him was given on licence to the defendant, the repairs made by the defendant whether that was with or without knowledge of the plaintiff would not establish the plea of estoppel and acquiescence.
11. So far as the plea that the licence has become irrevocable is concerned, this has also no force. It is not a case of either of the parties that licence of open land was granted and acting upon the licence permanent structure was raised by the defendant rendering the licence irrevocable. On the other hand, the case of the plaintiff is that the room was given on licence to the defendant. Consequently, even if it is accepted that the defendant made the roof of the room partly pucca and partly by placing thatch, it would not amount to raising permanent structure acting upon the licence. Consequently, the lower appellate court was justified in granting decree for eviction against the defendant and this point cannot be answered in favour of the appellants. The appeal has, therefore, no merit.
12. Coming to the cross-objection, once the lower appellate court found that licence in respect of a room was granted to the defendant on monthly licence fee of Rs. 10 and the licence was revoked and the arrears of licence fee were averred with effect from 16th August, 1982, decree for damages should have been granted by the lower appellate court. No reason has been given by the lower appellate court as to why decree for damages and arrears of licence fee was refused. Likewise the lower appellate court did not keep in view the settled principle of law that cost follows event. If the appeal was allowed, it should have been allowed with costs throughout. No reason has been given why the cost was not awarded to the plaintiff-respondent. The cross-objection in these circumstances is bound to succeed.
13. In the result the appeal fails and the cross-objection succeeds. The appeal is, therefore, dismissed in part so far as decree for possession against the appellant has been passed by the lower appellate court. Refusal to award licence fee and damages is set aside so also order directing the parties to bear their own costs. The decree of the lower appellate court is modified in addition to the decree for possession against the defendant. The plaintiff-respondent shall get arrears of licence fee with effect from 16th August. 1982 at the rate of Rs. 10 per month upto the date of the suit and pendente lite and future mesne profits till the date of actual dispossession at the rate of Rs. 10 per month on the payment of additional court fee in the execution side. The plaintiff-respondent will get his costs throughout from the appellants.