The terms and conditions may be express or implied or even oral,
which can be gathered from the nature and purpose for which the
licence is granted. The conduct of the parties and the
circumstances may also be the relevant factors to establish the
facts. If the construction is carried out and the expenses are
incurred without knowledge and consent of the licensor or behind
his back, then the benefit under Section 60(b) of the Indian
Easements Act would not be available to the licensee, as he
would be failing to establish that he has “acted upon the licence”.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.47 of 1993
Bhaurao s/o Jagoji Junankar
V
1. Sau. Vandana w/o Moreshwar
Korale,
Coram : R.K. Deshpande, J.
Dated : 2 May, 2013
Citation; AIR 2014(NOC) 118 BOM
Regular Civil Suit No.62 of 1989 filed by the plaintiff
for possession of the suit premises and recovery of damages, was
dismissed by the Trial Court by the judgment and order
dated 1871990. In Regular Civil Appeal No.59 of 1990
preferred by the plaintiff, the Appellate Court has reversed the
decision of the Trial Court on 2891992 and the suit is decreed,
holding that the plaintiff is entitled to recovery of the possession
of the suit property and directing the defendant to hand over the
vacant possession thereof to the plaintiff. The decree for
damages and future mesne profits has also been passed. Hence,
This second appeal was admitted on 141993 on the
2.
the original defendant is before this Court in this second appeal.
substantial questions of law at serial Nos.(a) and (b) in para 17 of
the memo of appeal, which are reproduced below :
“(a)
Whether in the absence of any proof as to the
acquisition of title to the Nazul Plot in suit by the
Plaintiff of her predecessor, the Additional District
Judge was right in holding that the plot in suit is owned
by the Plaintiff?
(b)
Whether, the document Exhibit 45 which is held
to be giftdeed, held to be proved when none of the
attesting witnesses is examined and the attestation is not
proved?”
3.
The Trial Court has recorded the finding that the plaintiff
Geetabai has established that Trimbakrao was the owner of the
suit property. The Trial Court has, however, rejected the claim of
the plaintiff for ownership of the suit property, based upon the
registered releasedeed dated 1721987 at Exhibit 45 on the
ground that the attesting witness has not been examined. The
Trial Court has further held that the plaintiff has failed to
establish that the defendant was occupying the suit premises as
her licensee and the said licence was terminated on 3151987. In
respect of the claim for damages, the Trial Court has held that the
same does not arise for consideration in view of the findings
recorded on the aforesaid issue. The Trial Court has also rejected
the contention of the defendant that he has perfected the title over
the suit property by way of adverse possession.
4.
In regular civil appeal, the Appellate Court has
concurred with the finding recorded by the Trial Court regarding
ownership of Trimbakrao. The Appellate Court has further held
that the plaintiff has proved her title to the suit property on the
basis of the registered document of releasedeed dated 1721987
at Exhibit 45. The Appellate Court has further recorded the
finding that the defendant was occupying the suit premises as the
licensee of the plaintiff and his licence was terminated by giving
a notice dated 2041987 at Exhibit 30. The Appellate Court has
defendant has failed to establish his title by way of adverse
possession.
also concurred with the finding of the Trial Court that the
5.
The finding of the Courts below regarding ownership of
Trimbakrao, is based upon the certified copies of tax issued by
the Gram Panchayat for the years 196263 to 197374 at
Exhibit 39, the certified copy of Index No.II at Exhibit 32, and
the certified copy of the resolution passed by the Gram Panchayat
on 1431987 at Exhibit 33. The oral evidence of PW 2
Trimbakrao Deshmukh at Exhibit 44 has also been relied upon.
The finding regarding ownership of the plaintiff has been
recorded on the basis of the releasedeed dated 1721987
executed by Trimbakrao at Exhibit 45 and the oral evidence of
Trimbakrao. Thus, the finding of fact recorded by the Courts
below is based upon the evidence available on record. At any
rate, it is a possible view of the matter, and hence the substantial
question of law at serial No.(a) does not at all arise for
consideration.
On the substantial question of law at serial No.(b),
6.
though the Appellate Court has not recorded any finding on the
question of attestation over the document in question, the fact that
the document is the registered releasedeed, is not disputed. The
decision of the Apex Court in the case of Surendra Kumar v.
Nathulal, reported in AIR 2001 SC 2040, relied upon by
Smt. Raskar, the learned counsel for the respondents, needs to be
seen. Para 12 therein being relevant, is reproduced below :
“12.
Section 123 of the Transfer of Property Act,
1882 provides :
“123. Transfer how effected. For the purpose of
making a gift of immovable property, the transfer must
be effected by a registered instrument signed by or on
behalf of the donor, and attested by at least two
witnesses.”
In the present case there exists a registered deed of
gift signed by the donor and attested by two witnesses.
Therefore, the requirement of the law as incorporated in
the Section is satisfied. Section 68 of the Indian
Evidence Act, 1872 makes a provision regarding proof
of execution of a document required by law to be
attested. Therein it is laid down that :
“If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its
execution. If there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence.”
The proviso to the section, which is relevant for the
present purpose, reads :
“Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a will, which has been registered in
accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been executed
is specifically denied.”
(Emphasis supplied)
On a plain reading of the proviso, it is manifest that a
registered deed of gift can be received in evidence
without examining one of the attestors if the person who
has executed the deed of gift has not specifically denied
its execution. In the present case, the donor Chand Bai
has specifically admitted execution of the deed of gift in
favour of the appellant. Therefore, the lower appellate
Court was in error in holding that the deed of gift has
not been duly proved since one of the attestors has not
been examined as witness. Indeed the certified copy of
the registered deed of gift was produced in the trial
Court along with an application filed by the plaintiff in
the previous suit, Suit no.69/70(4/76) that the same may
be called for. The trial Court, being satisfied about the
reason for nonproduction of the original document,
marked the certified copy of the deed of gift as
Exhibit3.”
In view of the provisions of Section 123 of the Transfer of
Property Act and Section 68 of the Indian Evidence Act, the
Apex Court has held that the registered giftdeed can be received
in evidence without examining one of the attestors, if the person,
who has executed the deed of gift, has not specifically denied its
execution. In the present case, undisputedly, the releasedeed at
Exhibit 45 was executed by Trimbakrao, who was examined as
PW 2, and he has admitted the execution of the said document.
The substantial question of law at serial No.(b) is, therefore,
answered, holding that it was not necessary, in the facts of this
case, to examine any attesting witness to prove the leasedeed
dated 1721987 at Exhibit 45.
It is urged by Shri Kasat, the learned counsel for the
7.
appellants, that it is a case of irrevocable licence covered by
Section 60(b) of the Easements Act, 1882. He has invited my
attention to the pleadings in the written statement and the
evidence on record. He submits that it is an admitted position
that the suit property was given to the defendant on licence and
the defendant has raised a permanent construction and incurred
the expenses in the execution. Though, the point was raised in
the written statement regarding irrevocable licence, no issue was
framed by the Trial Court. The Trial Court has dismissed the
suit, rejecting the claim of the defendant for title over the suit
property by way of adverse possession. There was no
crossobjection by the defendant in the appeal filed by the
plaintiff challenging the dismissal of the suit. The Appellate
In the decision of the Apex Court in Ram Sarup Gupta
ig
8.
Court has also not dealt with the question of irrevocable licence.
(Dead) By LRs. v. Bishun Narain Inter College and others,
reported in (1987) 2 SCC 555, relied upon by Shri Kasat, the
learned counsel for the appellants, the Trial Court recorded the
finding that the defendants had made permanent construction on
the premises in suit, and, therefore, the licence granted to them
was irrevocable under Section 60(b) of the Indian Easements Act,
1882. With this finding, the Trial Court dismissed the suit,
holding that the licensor had no power in law to revoke the
licence and to obtain the possession of the property. Before the
High Court, the opinion was divided. Shri D.N. Jha, J. affirmed
the finding of the Trial Court and opined that the licence granted
was irrevocable, whereas Shri K.S. Verma, J. took the contrary
view, holding that the defendants had failed to raise the requisite
plea that the licence granted to them was irrevocable, as
contemplated by Section 60(b) of the said Act, and further failed
to produce any positive evidence to prove the terms and
conditions of the licence showing that it was irrevocable. The
third Judge Shri T.S. Misra, J., to whom the matter was referred,
concurred with the view expressed by Shri D.N. Jha, J. and
upheld the dismissal of the suit. The Apex Court specifically
recorded the finding that the pleadings, evidence and the
circumstances available on record have fully established that the
licensor had granted licence to the School in respect of the
building and the land attached to it for the purpose of imparting
education and the School, in furtherance of that purpose,
constructed additional buildings and incurred expenses in
carrying out modifications and extensive repairs in the existing
building. The licensor never objected to it and there was nothing
on record to show that the licensor had retained a right to revoke
9.
the licence. It confirmed the finding recorded by the Trial Court.
In para 12 of the said decision in Ram Sarup Gupta's
case, cited supra, the Apex Court referred to the decisions of the
various High Courts, wherein it was held that the three conditions
are required to be fulfilled under Section 60(b) of the Indian
Easements Act to prove that the licence is irrevocable, and those
are – (i) that the licensee executed work of a permanent nature,
(ii) that he did so acting upon the licence, (iii) that he incurred
expenses in doing so. It was held in these decisions that the onus
of proving these facts lay upon the licensee and in the absence of
any evidence on these questions, the licence could not be
revocable under Section 60(b) of the said Act. The Apex Court,
however, did not comment upon the correctness of this view, but
has held that in the case before it, all the three conditions were
10.
fulfilled, showing that the licence was irrevocable.
Smt. Raskar, the learned counsel for the respondents, has
relied upon the decision of this Court in the case of Tukaram
Sawant v. Mangalalaxmi Chinubhai Shah and others, reported in
1989 Mh.L.J. 197. The relevant portion contained in para 9 of the
said decision, is reproduced below :
“9.
... The important question is not as to the nature
of the work that has been done by the Appellant. The
major hurdle that he has to cross is whether the work
was done by him by acting upon the licence. A licensee
is not entitled to plead irrevocability because he has
carried out a work of permanent nature by incurring
expenditure. He has to show that what he has done viz.
executing a work of permanent nature, is pursuant to a
right granted to do upon the land of the grantors
something which would be unlawful in the absence of
such a right. To quote from Gujarat Ginning and
Manufacturing Co. Ltd. vs. Motilal Hirabhai Spinning
and Manufacturing Co. ltd., AIR 1936 Privy Council 77:
“A man does not 'act upon a licence' if he does
work and incurs expense upon his own
property. That he can do without anyone's
licence. Work done by the licensee on his own
land may be done without the knowledge of the
licensor, and the alleged licensor's land cannot
be held to be bound in perpetuity (subject to
section 62) as the result of some work done by
the alleged licensee on his own property of
which the former was unaware.”
This Court has taken a view that the licensee is not entitled to
plead irrevocability because he has carried out a work of
permanent nature by incurring expenses and he has to show that
what he has shown is pursuant to a right granted to do upon the
land of the grantors something which would be unlawful in the
absence of such a right.
11.
The question as to whether the licence granted was
irrevocable in terms of Section 60(b) of the Indian Easements
Act, is essentially a question of fact, which is required to be
pleaded and proved. The burden is upon the person, who claims
the benefit of Section 60(b) of the said Act to establish the three
things – (i) that he has executed the work of a permanent
character, (ii) that he did so acting upon the licence, and
(iii) that he has incurred the expenses in doing so. Merely
because there is a work of permanent character executed by
incurring expenses, would not by itself be enough to establish that
the licence was irrevocable, but a third condition that it was so
done by acting upon the licence, is also required to be established.
The terms and conditions may be express or implied or even oral,
which can be gathered from the nature and purpose for which the
licence is granted. The conduct of the parties and the
circumstances may also be the relevant factors to establish the
facts. If the construction is carried out and the expenses are
incurred without knowledge and consent of the licensor or behind
his back, then the benefit under Section 60(b) of the Indian
Easements Act would not be available to the licensee, as he
would be failing to establish that he has “acted upon the licence”.
12.
With the assistance of the learned counsels appearing for
the parties, I have gone through the pleadings and evidence
available on record. Except oneline pleading that the licence
was irrevocable under Section 60(b) of the Indian Easements Act
and the defendant has acted on the basis of the licence, the facts
regarding the purpose of granting licence and the terms and
conditions of such licence, are conspicuously absent. Apart from
this, there is absolutely no evidence brought on record by the
defendant to show that the work of a permanent nature was
carried out and the expenses were incurred by acting upon the
licence. In the decision of the Apex Court in Ram Sarup Gupta's
case, cited supra, relied upon by Shri Kasat, the learned counsel
for the appellants, turns upon the findings of fact recorded by the
Trial Court, which were ultimately confirmed by the Apex Court,
holding that the pleadings, evidence and the circumstances
available on record establish that the licence was granted in
respect of the building and land attached to it for the purpose of
imparting education and the construction of additional buildings
and the expenses incurred thereon were without any objection
from the licensor. The decision of this Court in Tukaram
Sawant's case, relied upon by Smt. Raskar, the learned counsel
for the respondents, clearly supports the proposition that the
licensee has to show that what he has done is pursuant to a right
granted to him upon the land of the grantors. In view of this, the
In the result, the second appeal is dismissed.
13.
claim for irrevocable license, is not substantiated.
Judge
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