In the present case, there is no such specific pleading that renovation work was made by the defendant acting upon the licence and in pursuance of the licence granted by the plaintiff. The defendant claims to have been gifted with the land and thus is in possession on his own right. So, the present stand as regards the irrevocability of the licence is in conflict with the main plea. He never comes forward in so claiming as a licensee nor has placed in the courts below that instead of the claim of relationship as landlord and tenant, there was the relationship of licensor and licensee between the plaintiff and the defendant. Moreover two important factual aspects as placed by the defendant being taken for consideration, those prevent with full force, the attractibility of the provisions of Section 60 (b) of Easements Act. The first one is that of leaving of one room at the desire of plaintiff without any demur and the next one is that of demand of the money spent after the renovation. In view of the relationship between the parties s father-in-law and son-in-law, even accepting for a moment that some renovation work was done by the defendant and in view the very case of the defendant as aforestated, the present submission to thwart the suit of the plaintiff banking upon the provision of Section 60(b) of the Easements Act falls flat.
Equivalent Citation: AIR2016Ori1
IN THE HIGH COURT OF ORISSA
RSA No. 9 of 2015
Decided On: 12.08.2015
Appellants: Mohammed Jamsed
Vs.
Respondent: Sk. Altab
Vs.
Respondent: Sk. Altab
Hon'ble Judges/Coram:D. Dash, J.
1. This appeal has been filed calling in question the judgment and decree passed by the learned 2nd Addl. District Judge, Cuttack in RFA No. 65 of 2009 confirming the judgment and decree passed by the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in Civil Suit (1) No. 401 of 2004.
The respondent as the plaintiff had filed the suit for eviction of the defendant, realization of arrear rent and damages with other reliefs. The suit having been decreed directing the defendant to give vacant delivery of possession of the suit house and pay damage of Rs. 50/- per day till actual vacation, the defendant had carried an appeal. The same having been dismissed, the present appeal has been filed.
For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below.
2. Plaintiff's case is that he is the owner of the suit house and premises. The defendant is a tenant and was paying a sum of Rs. 700/- per month as rent which included the charges towards electricity and water consumption. It is stated that the parties being relation, no formal document was prepared. According to the case of the plaintiff, the lease was for eleven months commencing from 1-6-2003 and the defendant had paid rent for a month. So, when he defaulted for making a payment, notice as required under law being served, the suit has been filed.
The defendant contested the suit by filing the written statement. While traversing the plaint averments, the relationship of landlord and tenant between the parties as stated by the plaintiff is denied. It is stated that the defendant is the son-in-law of the plaintiff and on the 10th day of his marriage which was solemnized in the year 1990, the plaintiff as promised had given him two thatched rooms standing over the suit land for then-stay. Thereafter, the plaintiff has allowed the defendant in carrying out necessary renovations by spending huge-amount. Thus, the defendant states that since then the rooms were in his occupation wherein his family members are also staying. Subsequently, as per the request of the plaintiff, he states to have vacated one room for occupation of the elder sister of his wife. It is next stated that since in the year 1990, the room being in his occupation, he has spent around a sum of Rs. 30,000/- for renovation etc. The present move for eviction falsely claiming the relationship of landlord and tenant is only to avoid payment of the said sum which was asked by the defendant to be paid back to him.
3. On such rival pleadings, the trial Court framing seven issues has gone to answer first issue No. 4 concerning the passing of the decree of the eviction of the defendant as provided for by the plaintiff. On that issue, the trial Court has arrived at the conclusion on the basis of evidence that the plaintiff has failed to establish the relationship of landlord and tenant between him and the defendant. However, finding the title with respect to the suit house to be resting with the plaintiff and to have been proved, the trial court has held the plaintiff to be entitled to the decree of ejectment. It has also been held that the defendant is in permissive possession of the suit premises having no right, title and interest over the same on the basis of the oral gift as asserted. Practically, the answer on this issue has led the trial court to decree the suit. The lower appellate Court has in the process of examining defensibility of the finding of the trial Court and the legality of the ultimate decree of ejectment has concurred with the finding as regards the failure of the plaintiff to prove his relationship with the defendant as that of landlord and tenant. In the same line, it has been held that the plaintiff having established his title and the defendant being in permissive possession, the decree for ejectment has been found to be in order. In view of above, the lower appellate court has dismissed the appeal confirming the judgment and decree passed by the trial Court.
4. Learned counsel for the appellant submits that the following is the substantial question of law which arises in this appeal for being answered:--
"That when the defendant has not been found to be the tenant under the plaintiff and his possession has been found to be permissive which can be said to be as that of licensee, in view of the evidence on record that the defendant has put up construction of permanent nature on the suit premises having renovated the room in his occupation by spending money from his own purse, the courts below ought to have directed themselves in examining that the defendant has acquired non-evictible right so far as the suit room is concerned in view of the provision of Section 60(b) of the Indian Easements Act and accordingly, the suit of the plaintiff ought to have been dismissed."
5. The very case of the defendant is that as promised on the 10th day in his marriage with the daughter of the plaintiff in the year 1990, the plaintiff's father-in-law had given him two thatched rooms situated over the suit land for dwelling purpose and then he was allowed to go for necessary renovations and further development for their proper stay. The rooms are said to have been renovated with replacement of the thatched roof by RCC roof. Another important fact has been pleaded that as per the request of the plaintiff's father-in-law one room was vacated for occupation of the elder daughter of the plaintiff. It is further stated that a sum of Rs. 30,000/- or even more have been spent or such work as above and when that amount was asked by the defendant to be paid by the plaintiff, the present suit for getting vacant possession of the suit premises has been filed against the defendant on the false plea that he is the tenant under the plaintiff.
Thus, it is clearly seen that the defendant has nowhere taken such defence for having acquired non-evictible right banking upon and in view of provision of Section 60(b) of the Easements Act.
6. Learned counsel for the appellant submits that such a plea could not be taken as the suit of the plaintiff was for eviction basing upon the relationship of landlord and tenant and when the trial court as well as the lower appellate court have found that relationship to have never come into existence, the courts below ought to have bestowed due attention in view of the factual setting remaining in the written statement as regards the renovation of room by spending huge amount for all these period in answering further as to if that would clothe the defendant with the right as provided under Section 60(b) of the Easements Act and would stand as a bar for the plaintiff to seek ejectment of the defendant.
7. True it is that both the courts below have held that there was never any relationship of landlord and tenant between the plaintiff and defendant nor the case of the oral gift as advanced by the defendant has been accepted. The relief of eviction has been provided finding the plaintiff to be the owner and the possession of the defendant to be permissive in nature. Law is well settled in case of Bhagabat Prasad v. Chandramaul, MANU/SC/0335/1965 : AIR 1966 SC 735 that in a suit for ejectment when the plaintiff is found to be the owner and defendant is in possession, with his permission the relationship between them would be either that of landlord and tenant or that of an owner of the property and that of a licensee. No other alternative either logically or legitimately possible. It has accordingly been held that a decree for ejectment can be passed even though the tenancy is not proved. This Court in case of Maguram Agarwal v. Sri Puaralal, 2008 (ii) CLR 391 has held that in a suit for eviction of the defendant on the ground that he is a tenant if the court finds title with the plaintiff then even in case of failure of the plaintiff to establish his case of relationship of landlord and tenant between them, the suit can be decreed for eviction of the defendant instead of driving the plaintiff to file another suit to get the relief. The same is based on the view of the Hon'ble Apex Court in case of Bhagabat Prasad (MANU/SC/0335/1965 : AIR 1966 SC 735) (supra) that once the possession of the suit premises with the defendant is found to be as that of a licensee it would be futile to drive the plaintiff to go for another suit against the defendant on that basis.
8. So here is a case that the plaintiff has failed to establish the relationship of landlord and tenant between him and the defendant. The case of ownership as projected by the defendant basing upon the oral gift has been discarded by the courts below and that appears to be in conflict with the subsequently pleaded facts as regards leaving of the occupation of one room as per the desire of the plaintiff and the demand of money by the defendant to be paid by the plaintiff towards the renovation of the room. The defendant admits the title of the plaintiff in respect of the suit land over which the suit room stands. Thus there is concurrent finding of fact based upon discussion of the available evidence which the defendant in the present does not oppose on any such ground. Rather, it is stated by the defendant that two rooms were initially given, he admitted that one room was left sometime later being asked by the plaintiff. When also there is no clear pleading that the room that was left was without any renovation. This clearly shows that the possession was permissive which in the eye of law is for and on behalf of the owner.
9. Let us now accept for a moment that such a plea of the license being irrevocable banking upon the provision of Section 60(b) of the Easements Act is permissible to be raised at this stage and proceed accordingly to examine the same.
Section 60 of the Easements Act provides two restrictions for revocation of the license by the grantor. Here we are concerned with the second limb under clause (b). It reads that so as to fall within the excepted category of revocable licensee, the licensee acting upon the licence must be found to have executed work of a permanent nature and incurred expense in the execution thereof. This rule of law seems to be based upon the injustice which would be inflicted upon the licensee if, after he had laid out money and executed a permanent work, the licensor was permitted to revoke his licence and make him waste money expended, or if he ever allowed to treat him as a wrong-doer and recover damages for the very act for which he gave permission. The above section embodies two exceptions to the general rule that a licence is revocable. Clause (b) of Section 60 is based on the principle of estoppel by acquiescence. When the licensee acting upon a licence has executed a work of permanent nature and incurred expenses in the execution, the licence cannot be revoked by the grantor. The man who stands by and allows another person to build on his land, in the belief that he has power or authority to do so, and incurs expenses in such building, cannot turn round and claim removal of such building on the ground that the latter had no authority to build. He is estopped by his conduct from adopting that course and the law will presume and authority from him in such cases.
10. For availing the protection by invoking the provision of clause (b) Section 60, it must be shown that the execution of a work of permanent nature had been done by the licensee acting upon the licence. The work must be of a permanent character and the licensee must have incurred expenses in the execution. The expression 'acting upon the licence is of great significance in deciding the question of irrevocability of a licence under Section 60(b) of the Act. This Rule of irrevocability is, in fact, based on the principle of an implied grant arising from the conduct of the licensor which estops him from claiming his right of revocation.
In the present case, there is no such specific pleading that renovation work was made by the defendant acting upon the licence and in pursuance of the licence granted by the plaintiff. The defendant claims to have been gifted with the land and thus is in possession on his own right. So, the present stand as regards the irrevocability of the licence is in conflict with the main plea. He never comes forward in so claiming as a licensee nor has placed in the courts below that instead of the claim of relationship as landlord and tenant, there was the relationship of licensor and licensee between the plaintiff and the defendant. Moreover two important factual aspects as placed by the defendant being taken for consideration, those prevent with full force, the attractibility of the provisions of Section 60 (b) of Easements Act. The first one is that of leaving of one room at the desire of plaintiff without any demur and the next one is that of demand of the money spent after the renovation. In view of the relationship between the parties s father-in-law and son-in-law, even accepting for a moment that some renovation work was done by the defendant and in view the very case of the defendant as aforestated, the present submission to thwart the suit of the plaintiff banking upon the provision of Section 60(b) of the Easements Act falls flat.
Thus, the submission of the learned counsel for the appellant as regards involvement of the substantial question of law as aforementioned cannot be countenanced. Hence, the appeal does not merit admission.
The appeal stands dismissed.
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