IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 638 of 1999(A)
1. T.ISHWARA BHAT
... Petitioner
Vs
1. T.SUBBANNA BHAT
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :14/07/2010
O R D E R
HARUN -UL- RASHID, J
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S.A.NO.638 OF 1999
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Dated this the 14th day of July, 2010.
JUDGMENT
The defendant in O.S.No.434/1994 on the file of the
Munsiff’s Court, Kasargod is the appellant. The appeal is
directed against the judgment and decree in A.S.258/1996 of
the Sub Court, Kasargod. The suit was filed by the
respondent/plaintiff for a decree of mandatory injunction
directing the appellant/defendant to remove irrigation water
pipes C, C2 and C3 shown in the plaint eye sketch. The parties
hereinafter referred to as the plaintiff and the defendant as
arrayed in the suit.
2. The case of the plaintiff is that he had permitted the
defendant to take pipe lines through his property for the
purpose of taking water to the properties of the defendant.
Permission was granted orally for taking three sets of pipe lines
on 1.3.1991 and 1.5.1994 respectively. According to the
plaintiff the permission was granted on a temporary basis and
the pipes have to be removed from the property of the plaintiff
S.A.NO.638 OF 1999 2
whenever the plaintiff wanted to remove the same. Though he
has repeatedly requested the defendant to remove the water
pipes laid through his properties, the defendant failed to accede
to the request. Therefore, the suit was filed for mandatory
injunction for removing the pipe lines laid through the properties
of the plaintiff.
3. The defendant filed a detailed written statement denying
the averments in the plaint and prayed for dismissal of the suit.
It is contended inter alia that water from the tank in the
properties of the defendant is led through pipe line laid through
the properties of the plaintiff, that the defendant acting on the
licence granted by the plaintiff, laid pipe through the property of
the plaintiff and that the laying of pipe has been made more than
20 years ago. It is also contended that (acting on the licence)
the defendant had incurred expenses and the construction work
is of permanent character. A reservoir was constructed in the
property of the defendant to store water and that he has done
works of permanent character in his property for the irrigation
purpose and therefore, licence granted by the plaintiff is not
revocable.
S.A.NO.638 OF 1999 3
4. Ext.A1 is a eye sketch. Ext.A1 shows the property of
plaintiff as well as the defendant . Ext.A1 also shows the position
of pump set installed by the defendant in his property, the tanks
in which water is stored and the pipe lines running through the
property of the plaintiff. It is not disputed by the plaintiff that
the defendant had taken pipe lines through the properties of the
plaintiff for the purpose of drawing water to his different property
shown in Ext.A1. The case of the defendant is that plaintiff
granted permission for taking pipe lines through three sets of
properties. Permission was granted for taking 2 sets of pipe lines
on 1.3.1991 and for the third set on 1.5.1994. It is the plaintiff’s
case that the permission was purely temporary in nature and
pipes were to be removed by the defendant whenever the
plaintiff wanted to remove the same. The defendant on the other
hand contended that the plaintiff granted licence to lay pipe
through his property through Resurvey No.451/3A,
R.S.No.449/1B more than 20 years ago and through
R.S.No.445/1 17 years ago. His case is that, he acted on the
licence and incurred expenses and the construction work is of a
permanent character, the plaintiff is not entitled to any relief
S.A.NO.638 OF 1999 4
sought for in the plaint.
5. It is pointed out by the counsel for the
respondent/plaintiff that he got the property only in the year
1981 by virtue of Ext.A4 Gift deed and therefore, the contention
of the defendant that the licence was granted more than 20 years
ago, is incorrect. The trial court as well the lower appellate court
held that plaintiff got the property only in the year 1981 and
therefore, there is no possibility of the defendant laying the pipe
line before 1981.
6. Admittedly, the right exercised by the defendant is one
based on licence. The licence unless comes under Section 60(b)
of the Easement Act is revocable as and when the plaintiff
chooses to do so. It is not disputed by the plaintiff that the
defendant is irrigating his garden using the water coming through
the said pipe lines. The plaintiff submitted that laying of pipes in
the property of the plaintiff is not work of a permanent character.
So Section 60(b) of the Easement Act is not attracted. A licence
is a permission granted to do some work on the property of the
grantor. Therefore, installing pump set, erecting pump shed,
constructing water tank in the property of the defendant is not
S.A.NO.638 OF 1999 5
work of a permanent character in the property of the plaintiff
therefore, it will not come under the term licence. The lower
appellate court has rightly held that the works done by the
defendant are works of a permanent character done by him in his
own property, therefore, it will not come under the term licence
under Section 60(b) of the Act. The lower appellate court also
rightly held that the burden of pleading and proving that the
licence is one that comes under Section 60(b) of the Easement
Act is on the licensee. The lower appellate court referred to the
decision reported in AIR 1985 NOC 159 F Kerala.
7. The learned counsel for the respondent/plaintiff brought
to this court attention the decision reported in AIR 1975 Patna 17
where in it is held that a person will be acting upon the licence
within Section 60(b) of the Easement Act only when he executes
a work of a permanent character upon the land of the licensor
and not when he executes a work of a permanent character on
his own land. The Patna High Court also held that where one was
constructing a building on his own land, another allowed his land
to be used a passage for the limited purpose of carrying bricks
and other materials to the construction site, the licence granted
S.A.NO.638 OF 1999 6
deemed to have been revoked with the completion of the work of
construction. Lower appellate court also referred to decision
reported in AIR 1980 Gujarat 41, 1988 (2) KLT 345 and held that
Section 60(b) is applicable only when the work is of permanent
character and work is done in the property of the guarantor
himself.
8. The counsel for the appellant contended that the plaintiff
has acquiesced to the act of laying of pipe line through his
property and therefore, he is estopped from removing the pipe
line. Since the licence is pure and simple, there is no question of
the plaintiff acquiesced to the laying of the pipe line through the
property. It can only be the term permission granted to the
defendant and therefore, the question of acquiescence does not
arises.
9. The trial court appreciated the facts and circumstances in
a different manner and found that the licence is of a permanent
character. The finding that licence is a permanent character was
arrived at by the trial court run counter to the facts, evidence and
circumstances. The finding that the licence comes under Section
60(b) of the Easement Act and is irrevocable is without any basis.
S.A.NO.638 OF 1999 7
The trial court also referred to the amounts spent by the
defendant for raising paddy field, installing the spinkler system
etc. to arrive at a finding that the licence is irrevocable in nature.
The approach of the trial court and the interpretation given to
Section 60(b) of the Act is unsustainable in law. In such
circumstances, the findings and conclusions arrived at by the
lower appellate court is upheld. The plaintiff in the suit is not
entitled to a decree for mandatory injunction as prayed for.
In the result, the appeal fails and accordingly, it is
dismissed. No order as to costs.
HARUN-UL-RASHID, JUDGE.
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