Dropadibai and Others vs Laxminarayan and Others

R.C. Lahoti, J.

Plaintiffs have come up in second appeal feeling aggrieved by the Judgments and decrees of the Courts below directing their suit for ejectment and recovery of rent and mesne profits to be dismissed.

For the purpose of this appeal, it would suffice to notice only the findings of fact arrived at by the Courts below which are not only not challenged but are also immune from challenge in second appeal.

The suit was filed by Deepchand against Dharamveer both of whom have expired during the pendency of these proceedings. Dropadibai and Ors., the appellants, are the legal representatives of late Deepchand, the plaintiff. Laxminarain and Ors., the respondents, are the legal representatives of late Dharamveer, the defendant. In this Judgment, the parties would be referred to as plaintiff and defendant.

The suit property is a plot of land admeasuring 20'' X 32" situated at ''Jhansi-loop-road-Mora'' locality of Gwalior. Both the Courts below have found that : (i) The plaintiff was the owner of the suit property, (ii) the defendant was not holding the property as the tenant of the plaintiff but he was a licensee of the plaintiff and (iii) the defendant had not acquired any title by adverse possession over the suit property.

4-A. The Courts below have further found that the defendant had constructed a Patore, that is, a kachcha construction covered by the roof of stone slabs and inasmuch as he must have incurred expenses in raising the construction, his licence had become irrevocable u/s 60(b) of Easements Act, 1882, the building work being work of a permanent character.

This Court has admitted the appeal for hearing parties on the following substantial questions of law :--

"(1) Whether on the facts and circumstances of the case, even on the finding that the relationship between the defendant Dharmajit and Malharrao Bhosale was that of a licensee and licensor, the plaintiffs suit deserves to be decreed?

(2) Whether in view of the provisions contained in Sections 52 and 60 of the Easements Act, 1882, it can be said that the defendant/respondents have constructed work of a permanent character acting on the licence?"

It is true that the main plank of the plaintiffs suit was the alleged landlord-tenant relationship between the parties. That allegation was denied in the written statement. However, vide para 10 of the plaint, it was alleged that in the event of the defendant denying the tenancy, the plaintiff be allowed relief of possession on the basis of his title to the suit property. This averment made in para 9 of the plaint was evasively denied in the written statement, the defendant having taken no positive plea in the written statement in para 9. It was in the additional pleas part of the written statement where it was pleaded that the possession of the defendant was as a licensee and the licence had become irrevocable consequent to his having raised work of a permanent nature on the land.

It is clear from the pleadings that the title of the plaintiff was never denied by the defendant. The main question to be decided was whether the defendant was a tenant or a licensee. The only other questions to be decided were if the defendant had perfected his title on account of having been in possession of the suit property for more than 12 years and if his licence had become irrevocable on account of his having raised the construction. From the pleadings, issues and evidence adduced by the parties, it is very clear that the defendant was fully alive to the fact that in the event of his plea as to adverse possession or of the licence having become irrevocable, being not substantiated or accepted, the suit for possession was bound to be decreed against him.

In Bhagwati Prasad Vs. Shri Chandramaul, the suit was for ejectment in which the defendant admitted title of the plaintiff in regard to a plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the plaintiff. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about the agreement on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case, the relationship between the parties would be either that of the landlord and tenant or that of an owner of property and a person put in possession of it by the owner''s licence. Their Lordships held : --

"Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance.

If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

-- -- -- -- "... in absence of proof of tenancy and of defendant''s agreement the conclusion of the High Court in first appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiff, did not cause prejudice to defendant. There was no error of law if the decree for ejectment was passed."

There can, therefore, be no manner of doubt that in the case at hand the title of the plaintiff having remained beyond dispute and tenancy having not been proved, the plaintiff would still be entitled to decree for possession if only the plea of irrevocability of licence as raised by the defendant may not come in the way of the plaintiff.

Sections 52 and 60 of the Easements Act, 1882 read as under:--

"52. "License" defined. -- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."

"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."

10-A. It is neither the plea of the defendant nor the evidence adduced nor found by the Courts below that the plaintiff or his predecessor-in-title had given a licence to the defendant to raise any construction and the defendant had executed work of a permanent character acting upon the licence. The defendant''s plea was only this much that he had raised a construction which was not objected to by the plaintiffs predecessor-in-title and that is why his licence had become irrevocable.

In Chavalier I.I. Iyyappan and Another Vs. The Dharmodayam Company, their Lordships have held : --

"In our opinion, no case of licence really arises but if it does what is the licence which the appellant obtained and what is the licence which he is seeking to plead as a bar. The licence, if it was a licence, was to construct the building and hand it over to the respondent company as trust property. There was no licence to create another kind of trust which the appellant has sought to create. It cannot be said therefore that there was an irrevocable licence which falls u/s 60(b) of the Act."

In Mohammad Ali v. Ahmad Husain AIR 1932 Awadh 264, there was a licence given to the defendant merely to remain in possession of the plot but the defendants executed a work of a permanent character and incurred expenses in the execution. It was held that the house could not be said to have been built acting upon the licence, and hence, though a hard case certainly, yet the plaintiff was eititled to a decree of possession.

In Karan Singh and Another Vs. Budh Sen and Others, there was a lease of land and rooms thereon, to near relations for residence. However, the grantee made improvement in building at considerable cost in good faith without any protest from grantor. It was held that Section 60 did not operate nor was there any estoppel. The High Court of Allahabad held the plaintiff entitled to decree for possession and at the same time applying equitable principle extended in favour of the defendants passed a conditional decree directing the value of the constructions (improvement) to be paid by the plaintiff to the defendants and possession being restored conditional on such payment.

In the considered opinion of this Court, the principles of law deducible from the abovesaid cases fully deserved to be applied to the case at hand.

It is held that the defendant is not entitled to take shelter behind Section 60 of the Easements Act. Possession must be restored to the plaintiff. However, in view of the defendant having raised a Kachcha construction covered by roof of stoneslabs and the plaintiffs predecessor-in-title having not raised timely protest against the defendant''s act. the decree for possession in favour of the plaintiff should be made conditional on payment of compensation equivalent to the value of construction raised by the defendant.

The appeal is allowed. The Judgments and decrees of the Courts below are set aside. In supersession thereof, it is directed that the defendant shall hand over vacant and peaceful possession over the suit property to the plaintiff. Before doing so, the plaintiff shall be bound to pay the defendant the value of the construction raised by it which shall be assessed and fixed by the Executing Court. From the amount of compensation so fixed, the plaintiff shall be entitled to adjust the amount of Rs. 360/- plus the amount calculated at the rate of Rs. 10/- per month with effect from 26-10-1970 till the date of recovery of possession as fixed by the lower appellate Court, being the amount of premium realisable by the plaintiff from the defendant. In the peculiar facts and circumstances of the case, the costs shall be borne by the parties as incurred throughout.