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Allahabad High Court
Bhukhan Singh And Anr. vs Jagardeo Koeri on 28 October, 1926
Equivalent citations: AIR 1927 All 197
Author: I Ahmad


Iqbal Ahmad, J.

1. This is a plaintiffs appeal and arises out of a suit for possession of a house. The plaintiffs case was that the house in dispute belongs to one Debi Koeri, and on his dying issueless the plaintiffs, as zamindars, got possession of the house and were in possession since then till the year 1924, when the defendant took the house from the plaintiffs and began to store fodder in the house with the plaintiffs’ permission. It was further alleged by the plaintiffs that Defendant No. 1 now refuses to vacate the house and hence the plaintiffs were compelled to bring a suit. The defence of Defendant No. 1. who was the sole contesting defendant, was that on Debi having died issueless the house of Debi was in ruins and then two of the zamindars of the village, Bhukhan Singh, the plaintiff, and Sheotahal Singh settled the house with Umrao, the father of Defendant No. 1, on receipt of a nazrana of Rs. 50, and thereafter the defendant and his father built the house anew and are in possession of the house since then. The allegations of the plaintiffs to the contrary contained in the plaint were denied by the contesting defendant.

2. The trial Court overruled the pleas taken in defence and passed a decree in the plaintiffs’ favour. The Defendant No. 1 appealed to the lower appellate Court. That Court has reversed the decree of the trial Court and has dismissed the plaintiffs’ suit.

3. The learned Judge of the lower appellate Court has found that Debi was succeeded by his son Achaibar, and on Achaibar’s death in 1912, the zamindars of the mahal, who were the plaintiffs and Sheotahal Singh, named above, got the house of Achaibar by means of a compromise on the 28th August 1912. He has further found that after the death of Achaibar the house remained vacant for three or four years and fell down, and then the plaintiff and Sheotahal Singh allowed Umrao, the father of Gajadhar, to build a house on the site of Achaibar’s house, and so Umrao built three rooms in the course of three years on the site of Achaibar’s house. The learned Judge of the lower appellate Court disbelieved the allegation of the defendant that, the permission to build the house was given to the father of the defendant on payment of a nazrana of Rs. 50. The allegation of the plaintiffs that they had built the house and they gave some of the rooms of the house to defendant in 1924 has been positively disbelieved by the learned Judge.

4. On the findings noted above the lower appellate Court came to the conclusion that the possession of the contesting defendant was that of a licensee, and as he or his father, acting on the license, had executed a work of a permanent nature and incurred expenses in so doing, the appellate Court could not revoke the license and was not entitled to a decree for possession of the house.

5. Pour points have been argued before me by the learned Counsel for the appellants. In the first place it is argued that the learned Judge of the lower appellate Court has erred in allowing the defendant to set up a new case for the first time in appeal. In my opinion there is no substance in this contention. It was not that the lower appellate Court allowed the defendant to make out a new case in appeal. On the contrary what the lower appellate Court has done is to consider the evidence of the parties and then to try to find out the truth. After considering the evidence it has come to the conclusion that neither party came with true allegations in Court, and that the truth lay between the respective allegations of the parties. Having found as to what the true facts were it proceeded to apply the law. In my opinion the lower appellate Court was perfectly right in so doing.

6. The second point argued before me is that the license ceased to have any effect because of the provisions of Section 59 of the Indian Easements Act. The argument of the learned Counsel is that inasmuch as prior to the partition by the revenue Court in 1924, there were other co-sharers of the plaintiffs-appellants, and as by that partition the plaintiffs-appellants alone were allotted the plot on which the house in dispute stands, this amounts, in the eye of the law, as a transfer from the other co-sharers of the plaintiffs in the plaintiffs’ favour and as such the plaintiffs as transferees are not bound by the license. I am unable to agree with ‘this contention of the learned Counsel. In the first place the transferee contemplated by Section 59 of the Indian Basements Act must be a person who was not the licensor himself. Section 59 of the Indian Easements Act has no application to a case in which one of two joint licensors transfers his interest in the property, with respect to which the license has been granted, in favour of his co-licensor. Secondly, the case reported as Ras Behari Lal v. Akhai Kunwar [1915] 37 All. 91 is against this contention of the learned Counsel for the appellant. Reliance has been placed on behalf of the plaintiffs-appellants on the case of Bhoj Raj v. Hardeva A.I.R. 1923 All. 140. As I read that case it was nowhere decided in that case that a transferee from a licensor is not bound by the license, and, so far as I can see, the point now under consideration did not arise in that case in the form in which it is raised in the present case.

7. The third point urged in support of the appeal is that there being no finding by the lower appellate Court that in building the house, the defendant or the defendant’s father incurred expenses, the lower appellate Court was wrong in holding that Clause (b) of Section 60 of the Indian Easements Act was applicable to the facts of the case, and that the license could not be revoked. I am unable to agree with this contention of the learned Counsel for the appellants. The finding of the lower appellate Court that the house has got beams and tiles and so is a permanent structure is tantamount to a finding that not only the structure is of a permanent character but also that some expenses must have been incurred in making the same. It is not the plaintiffs’ case that though the house was built by the contesting defendant or his father the expenses for building the same were not met by them.

8. The last point argued before me is that in any case the plaintiffs ought to have been given a decree for possession of the house in dispute conditional on making compensation to the defendant-respondent for the loss to which he would be put by reason of the revocation of the license. In support of this argument reliance has been placed on a case reported in Surnomoyee Peshakar v. Chunder Kumar Das [1910] 12 C.L.J. 443. I am of opinion that there is no substance in this argument, The Indian Easements. Act is not in force in Bengal [vide Section 1 of the Indian Easements Act and Nritta Kumari Dassi v. Puddomoni Bewah [1903] 30 Cal. 503] and questions relating to licenses, arising in the Presidency of Bengal have to be decided with reference to the English Law on the subject. The Indian Easements Act, which is in force in this Province, is a complete and self-contained Code. If it was the intention of the Legislature to provide that, even when a license became irrevocable the licensors will have a right to revoke the license on condition of making compensation to the licensees for the loss that they may incur by revocation of the license, one would have expected some provision to that effect in Section 60 of the Indian Basements Act, and Clause (b) of Section 60 would not have been enacted in the form in which it has been enacted. The provisions of Clause (b) of Section 60 are clear and specific; and, in the face of such provisions, the Courts in this Province cannot allow a licensor to revoke the license, on condition of his making compensation to the licensee for loss incurred by the revocation of the license.

9. For the reasons given above I am of opinion that the lower appellate Court has rightly dismissed the plaintiffs’ suit and I dismiss this appeal under Order 41, Rule 11.

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