JUDGMENT
S.K. Ray, J.
1. This is the sole defendant’s second appeal from the confirming decision dated 19-9-64 of Sri D. Hota, 5th Additional Subordinate Judge, passed in T. A. No. 155/64.
2. The suit was for eviction of the defendant from the suit-land of 0.032 decimals in extent with a house standing thereon, appertaining to G. S. Plot No. 149 of Khata No. 42 situated in Cuttack Municipality Ward No. 7 bearing holding No. 244 and for delivery of Khas possession thereof to the plaintiff. The plaintiff also claimed relief of permanent injunction restraining the defendants from interfering with the possession of the plaintiff after eviction from the suit-land.
3. The plaintiff’s case is that the suit-land originally belonged to Janardan Panda, grandfather of plaintiff-1. One Chintamani Panda, adoptive father of defendant Biswanath Panda, is the sister’s son of the said Janardan Panda. This Chitamani became an orphan at an early age. His father had left him a destitute by selling away all the family properties. Janardan his maternal uncle, out of compassionate grounds took upon himself the responsibility of rearing him up. He, therefore, took Chintamani into his house brought him up and got him married and allowed him to reside in the suit house. He was occupying the said house till his death on 20-11-60. He left his widow Radhamani and the present defendant Biswanath Panda his adopted son as his heirs. Janardan died in 1955. His son Jagaranath had predeceased him. So at the time of his death, his grandson, plaintiff-1 and his daughter-in-law, plaintiff-2, were alive and succeeded to his property including the suit-premises. The plaintiffs wanted the suit-land and the house standing thereon for themselves. So they sent a registered notice on 1-10-60 through their advocate demanding that the defendant should vacate the premises by the end of December, 1960. There was no reply to this notice.
4. The original defendant was Radhamani Debi, the widow of Chintamani Panda, During the pendency of the suit
she died and the present defendant the adopted son of Biswanath was, by an order of the Court dated 20-8-1963, substituted in place of the original defendant Radhamani Dibya. The original defendant Radhamani Dibya filed a written statement on 13-7-61. The present defendant, the adopted son of Chintamani Panda, filed another written statement on 19-9-1963.
5. The plea of the substituted defendant in substance, was that the suit-property was purchased by late Chintamani under an oral sale for a consideration of Rs. 50/- from the original owner about forty years ago. In pursance of that sale Chintamani took delivery of possession of the suit-land. Thereafter Chintamani constructed a permanent building with latrine and well with his own money and acquired the status of a permanent tenant under the landlord Sri Laxminarayan Thakur. The landlord demanded exorbitant sum of money for mutating his name which he was unwilling and unable to pay. He did not, therefore, proceed any further in the matter of mutation as he was closely related to the transferor who was his maternal uncle. He further says that Chitamani went on paying the rent and getting rent-receipts in the name of original owner Janardan in the current settlement of 1931 and he was recorded to be in possession as Pattadar under the landlord in the record of rights. Chintamani’s possession, therefore, was in his own right.
6. The defendant raised an alternative plea of acquisition of occupancy right by adverse possession. In regard to this plea, it is stated that Chintamani after him, his widow Radhamani, and after her the present defendant being in continuous and peaceful possession for more than last forty years ousting the plaintiffs and their predecessor’s an indefeasible right to the suit-property has been acquired by such adverse possession.
7. The main question that was considered by the trial Court and also by the lower appellate court is if Chintamani Panda was merely a licensee as asserted by the plaintiffs or the defendant was the owner of the suit-premises by virtue of an oral sale for a consideration of Rs. 50/- as alleged by him.
8. The trial court on a thorough consideration of the oral and documentary evidence on record returned the following findings:
(1) Chintamani was not the Pattadar. He was in possession of the suit-property of which the real pattadar was Janardhan Panda, his maternal uncle.
(2) The rent-receipts, Ext. 1 series do not indicate that Chintamani had paid rent in respect of the suit-holding as Pattadar. Chintamani’s name appear in some of the receipts as the man in possession but not as the Pattadar.
(3) The Zamabandi registers, Exts. F and F/1 similarly show the name of Janardan as the Pattadar and the name of Chintamani Panda as holding possession.
(4) Some of the Municipal tax receipts are in the name of Chintamani Panda but that by itself will not prove title in Chintamani because the Bihar and Orissa Municipal Act provides that the name of the occupier may be entered in the Municipal Assessment Register and municipal rent-receipts may he granted in the name of such occupier. Hence payment of tax in respect of the suit-land by Chintamani does not prove his title. For this he has relied upon a decision of this Court reported in 15 Cut LT 13.
(3) Evidence of oral sale is not in accordance with the defence case. He thereby disbelieved the oral sale in favour of Chintamani.
(6) The settlement Khatian Ext. J. and the rent-receipts (Ext. 1 series), the Jamabandi registers (Exts. F and F/1) the Kabuliyat (Ext. E) and the advertisement in the newspaper Utkal Dipika dated 22-1-16 conclusively establish that Janardan was the owner of the suit-property. The oral evidence of the plaintiff also indicates that Chintamani was allowed merely to stay in the suit-premises after he lost his parents.
(7) The suit-land contained a house at the time when it was purchased by Janardan and there is no credible evidence that Chintamani had demolished the house or that the old house collapsed automatically and Chintamani built a new house on the suit-property. Chintamani lived in the house which was there since before the time of Janardan’s lease (Ext. E). Chintamani was permitted to stay in the suit-house only as a licensee and as such he could not acquire title by adverse possession, there being no evidence of any act or conduct of the lessee converting permissive character of possession into an adverse one to the knowledge of the licensor.
9. The lower appellate court found that there is no reliable evidence of any oral sale in favour of Chintamani and that the latter was in permissive possession of the suit-land as the nephew of Janardan, the Pattadar. He disbelieved the case of the defendants that Chintamani built a house on the suit-land. He disbelieved the defence evidence that Chintamani was in possession of the land after, purchase in his own right. He said that it is impossible to hold, on the sole basis of entry in the assessment register of Municipality that Chintamani was the owner of the house. He also was of opinion that Janardan brought Chintamani to his house and allowed him to remain in the suit-house. This possession of Chintamani was therefore permissive possession and he was only a licensee and not a purchaser of the suit-land with the house thereon. On these findings, he confirmed the decision, of the trial court.
10. Learned counsel for the appellant does not press the defence case of oral
sale. The only question which is canvassed before me is that the license granted to Chintamani was coupled with an interest and therefore was irrevocable.
11. It is necessary at the outset, in order to correctly decide this contention with reference to the facts and circumstances established in this case, to understand the true nature and legal incident of a license. The judicial and statutory definition of license follows English definition of the term. Vaughan C.J. defined it in the case of Thomas v. Sorrol in the following way:
“A dispensation or license properly passeth no interest, nor alters or transfers property in anything but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which, without license, had been unlawful. But a license, to hunt in a man’s park and carry away the deer killed to his own use, to cut down a tree in a man’s ground and to carry it away the next day after to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to carrying away of the deer killed and tree cut down, they are grants.” Vide (1673) Vaughan’s Reports 330 1351).
This has been approved in the later English cases and has been substantially reproduced in Section 52 of the Indian Easements Act, 1882.
12. A license may be created by deed or by parol and in either case a mere license is revocable, but where it is coupled with a grant, it becomes irrevocable. In case of a license by parol coupled with a grant of interest which is incapable of being granted otherwise than by deed, such a license operates as a mere license because of the invalidity of the grant and is revocable.
13. A mere license does not create any estate or interest in the property to which it relates. It only confers legality on an act which would otherwise become unlawful. A license may be purely personal, gratuitous or contractual. The first two classes of mere licenses are revocable, the third class is revocable or not revocable according to the express or implied terms of the contract between the parties. A license coupled with grant of an interest in nature of property is not revocable. Such a license has been stated in Halsbury’s Laws of England, Vol. 23 (3rd Edn.) page 432 to be “A right to enter on land and enjov a profit a prendre or other incorporeal hereditament.”
14. To understand the true nature of the relationship between the licensor and the licensee, the decisive consideration is the intention of the parties. Where there is no formal document embodying the terms of agreement, the intention is to be inferred from surrounding circumstances and the conduct of the parties (vide AIR 1965 SC 610). In another case of the Supreme Court, AIR 1959 SC 1262 their Lordships held likewise
and further said that a party getting exclusive possession under a document is prima facie considered a tenant. In both the cases the Supreme Court was considering the terms of a written agreement to find out if they created a tenancy or lease or a mere license. The crucial circumstance, in such cases, is the nature of grant of exclusive possession. This is a consideration of the first importance, but the test of exclusive possession is by no means decisive of existence of a tenancy or a license; (Vide AIR 1965 SC 610). A grant conferring exclusive possession may, in very many cases, operate as a mere license.
15. Section 60 of the Indian Easements Act is not applicable to this area, but the principles contained therein are. According to these principles where a license is coupled with the transfer of property and such transfer is in force or where the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution, the license becomes irrevocable. Except in these two classes of cases a licensor has the power to revoke the license at his will, and mis power is not effected even though the license is granted for a valuable consideration.
16. From the aforesaid principles, it is clear that the bald proposition advanced here cannot be decided without pleading appropriate basic facts on which it is sought to be rested. It must be stated what was the nature of interest which was coupled with the license, because the license here is a verbal one and the question would arise if grant of such interest is capable of being made by parol. Then again, unless there is disclosure of that interest the opponent will be greatly prejudiced being unable to effectively join issue thereon.
17. That apart there is absolutely no evidence in this case that when Janardan brought the orphan Chintamani to his house and let him to live in the suit-house, he intended to grant him any interest in the property apart from the mere privilege of residence. Ext. E the Kabuliyat of Janardan contains a clause prohibiting the lessee from transferring any interest in the land or the house or trees standing on the premises which is the suit-land. So in view of this contractual incapacity of Janardan to transfer any interest in suit-land, granted by him conferring a right to exclusive possession on Chintamani can only take effect as mere license which is revocable at will. It is, on that account also, not possible to impute any intention to Janardan to transfer any interest to Chintamani when he allowed Mm to remain in the house. The defendant’s own case in the pleading that Chintamani purchased the suit-land from Janardan runs counter to the case of license coupled with grant of an interest and effectively shows that Janardan never intended to, nor did in fact transfer any interest in suit-property when he allowed Chintamani to reside in the suit-house.
18. The same conclusion is reached on the findings of the courts below. Both the courts found that Chintamani had possession of both the suit-land and the house thereon. He was also so treated by the Municipal authorities and his name was recorded in the Municipal Assessment Register and they realised municipal tax from him. They negatived the defence case that Chintamani had done any work of permanent character on the land. They also found that Chintamani was granted the mere right of residence by the owner Janardan at the time of his induction into the suit-house. The question, therefore, is whether the possession of Chintamani was such, in its nature and character, as to raise a presumption that the right granted to Chintamani was a licence coupled with some interest in the property, Ext. 1 series the rent-receipts from 1933 to 1960 show continuance of the name of Janardan. In some of them like Exts. 1/C, 1/E and 1/D, the plaintiff has been shown as the person who paid rent but name of Janardan still continues in the tenant’s column. This indicates that the plaintiff at the time of payment of rent acknowledged Janardan’s title and as such, the plaintiffs possession as indicated from them was permissive. There is nothing on record to indicate that the possession of Chintamani was so exclusive as to lead to an inference of some sort of right inhering in him apart from the bare right of residence.
The Municipal receipts, Ext. C series do not advance the defence case any further, because they are consistent with Chintamani being a mere occupier within the meaning of Section 3 (5) of the Bihar and Orissa Municipal Act. Those receipts are equally consistent with the possession of a person having some interest in the land as well as with the possession of a person who is a bare licensee having the privilege of residence only. No decisive conclusion is derivable from these documents. There is no evidence and also no finding that the possession of Chintamani was exclusive, that is to say, Janardan did not in fact retain any general control over the suit-property. Evidence obviously was not led from that point of view because there was no issue on the point, nor was such an issue canvassed. The cases cited by Mr. Mukherjee are cases of grant of license by deed and in each case finding of exclusive possession was arrived at and on a consideration of that or in conjunction with other circumstances the conclusion was reached that it was a demise and not merely a licence. For all these reasons this contention must fail.
19. These very pieces of evidence have been relied upon by learned counsel for the appellant in pressing the alternative case of acquisition of occupancy tenancy right by adverse possession. There is no proper plea of adverse possession and accordingly this alternative case cannot be accepted. Reference may be made in this connection to a decision of the Supreme
Court in the case of S. M. Karim v. Mst. Bibi Sakina, 1964 SCC 910 = (AIR 1964 SC 1254). It is there said:
“Adverse possession must be adequate in continuity, in publicity and extent and plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, AIR 1940 PC 202 the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea.”
20. In the result, therefore, there is no merit in this appeal which is accordingly dismissed.
21. There would be no order for costs of this appeal.