With regard to the nature of occupation of the defendant and the finding that the license in his favour was irrevocable under Section 60 of the said Act, it is necessary to refer to the respective pleadings of the parties. While the plaintiff came up with a specific case that he was the owner of the suit property by virtue of the sale-deed dated 16th August, 1983, according to the defendant this document was nominal in nature and executed by way of security for the amount borrowed. It was pleaded that the ownership of the defendant continued and the defendant did not lose his title by virtue of the sale-deed. In alternate, it was pleaded that the occupation of the defendant was by way of a license and a permanent structure had been constructed. As noted above, the relief with regard to declaration of title was rightly granted in favour of the plaintiff by the trial Court.
10. The Full Bench of this Court in Raychand Vanmalidas [supra] has held that though a party may raise inconsistent pleas of ownership and easement in the alternative in the same suit, such party has to elect one of the pleas through the course of the proceedings. Even if a party does not choose one of the alternate pleas, he can lead evidence on both and it is for the Court to decide whether he is entitled to succeed on one of his pleas. This judgment of the Full Bench was considered by the Hon'ble Supreme Court on Chapsibhai Dhanjibhai Dand [supra] and the same came to be affirmed. It was observed that after taking the plea of ownership and failing in the same, a party cannot subsequently turn around and claim that right as an easement by prescription. For establishing the right based on easement, such right has to be exercised on the property owned by somebody else and not as an incident of his own ownership of that property. In the light of this legal position, it is clear that the defendant having failed to prove his ownership cannot now be permitted to turn around and claim that by virtue of easementary right, he had undertaken a permanent construction and, therefore, was not liable to be evicted. In Shankar Gopinath Apte [supra], this position has been reiterated by emphasizing that the party undertaking the work of a permanent character should do so while "acting upon the license" under Section 60(b) of the said Act.
11. In view of this legal position, it is found that both the Courts committed an error in refusing the relief of possession to the plaintiff by relying upon the provisions of Section 60(b) of the said Act. Having failed to prove his title, it was not open for the defendant to fall back upon his other plea that he had easementary right in the suit property. Both the Courts refused the relief of possession by wrongly applying the law. Substantial question of law No. 2 is answered by holding that the defendant is not entitled to claim that on account of permanent construction being made, the license was irrevocable.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 384 of 2003
Decided On: 09.02.2018
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
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