Ram Seeta Educational Trust vs The Swarnapuri Co-operative House Building Society Ltd.

S. Nainar Sundaram, J.—The defendant in the suit is the appellant in this second appeal. The respondent herein is the plaintiff in the suit. The

suit property admittedly belongs to the plaintiff. The defendant put forth in the original written statement a plea of gift. The plea could not be

prosecuted fruitfully before the two courts below. Even before me in the second appeal Mr. Jagadeesan, learned Counsel for the defendant

appellant herein, is not projecting any plea of gift. The defendant has failed before the two courts below in the suit for recovery of possession. The

substantial questions of law that have been formulated by this Court at the time of the admission of this second appeal run as follows:

Whether the courts below are correct in rejecting the plea of the appellant that they are entitled to the benefit of Section 60(b) of the Easements

Act as inconsistent.

Whether or not the appellant is entitled to the benefits of Section 60(b) of the Easements Act.

Whether or not the appellant as defendant in the suit is entitled to raise inconsistent and alternative pleas.

The plea of the defendant as reflected in the substantial questions of law formulated by Court, when it relied on Section 60(b) of the Indian

Easements Act, hereinafter referred to as the ''Act'' has got basis only in the additional written statement filed by the defendant. The additional

written statement as per copy disclosed in the typed set filed by the appellant, is to the following effect.

In any event, the entire transaction stated in the plaint amounts to a grant in favour of the defendant by the plaintiff society coupled with an interest

in the land and in pursuance of the grant of Rs. 20,000 for improving the suit property for the purpose of carrying on the object of the grant.

Hence, the plaintiff is not entitled to cancel the grant already made.

Section 60(b) of the Act contemplates that a licence may be revoked by the grantor, unless the licencee, acting upon the licence, has executed a

work of a permanent character and incurred expenses in the execution.

Licence has been defined u/s 52 of the Act in the following terms:

Where a person grants to another, or to a definite member 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.

The plea put forth in the additional written statement is certainly not one of licence and revocation thereof. There the claim is of a grant coupled

with interest in the land. As rightly pointed out by the lower appellate Court, this conception of right put forth in the additional written statement

cannot fit in with the contention of a licence as defined by the statute. The defendant put forth a case of gift, and merely because that plea failed, it

is not possible to turn around and deduce a theory of licence, and in any event, the plea put forth in the additional written statement has not

improved the matter. The lower appellate court is right when it says that the proved facts also do not lead to an inference that the defendant was

granted a licence so as to attract Section 60(b) of the Act. Licence is clearly distinguishable from an interest in land. In the case of a grant of a

licence, it relates only to a right to do or continue to do in or upon the immovable property of the grantor something which but for the grant would

be unlawful. In the case of a grant of an interest in the property the grant relates to a bundle of rights in the property. The grantee is given the liberty

to dispose of any of the rights granted to him to any body. By the grant of interest in the property, there will be an extinguishments of the right of

ownership in the grantor. The grant could be restrictive also. By the grant of a licence, no interest in the property passes to the grantee. A mere

right to use the property for a specified purpose is given with a consciousness that the grantor retains all the right, title and interest in the property

and the grantee has only a personal right to use the property. If possession is given pursuant to a purported transaction of gift which proved

abortive and on account of that, the purported transfer failed, the position of the transferee could only be that of a trespasser. The conception of a

licence being opposed to the conception of a grant of an interest in the property, they cannot go together. Even otherwise, in the present case,

there is a categoric finding of fact that the improvements if any, made by the defendant are not at all of a permanent character. What would

constitute work of a permanent character is purely a question of fact and that has been decided by the lower appellate Court with reference to the

factual materials exposed in the case. The position legal and factual being what it is, there is no scope for invoking the aid of Section 60(b) of the

Act. Hence, this second appeal fails and the same is dismissed. No costs.