Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Faqirullah And Anr. vs Wali Khan And Ors. on 30 June, 1926
Equivalent citations: AIR 1926 All 714, 97 Ind Cas 337
Author: Daniels


Daniels, J.

1. This was a suit for possession of a compound containing three thatched kachcha houses. The finding of the Court below is that these houses are structures of a permanent character within the meaning of Section 60 of the Easements Act, and that they were erected by the license of the former zamindars. On these findings the learned District Judge dismissed the suit. Two points have been urged before me: (1) That the finding as to the structures being permanent is unsatisfactory and should not be accepted as a finding of fact binding in second appeal: (2) that inasmuch as the license was granted by the former zamindars who have transferred their rights to the plaintiffs the license has ceased to exist in virtue of Section 59 of the Easements Act.

2. On the first point the lower appellate Court says that there is no dispute that the defendants live and have lived for some time in the building in issue and intend to do so in future, and that under these circumstances there is no good ground for holding that the building is not of a permanent character. It is, no doubt, true, as contended by the appellants, that whether the building is a work of a permanent character depends on the nature of the building and not on the intention of the persons occupying it. At the same time the fact that it has been occupied as a residential house for a considerable period is a fact which is to be taken into consideration in deciding whether it is a structure of a permanent character or not. The fact that the building was of a permanent character was distinctly pleaded in the written statement. The Munsif came to no finding upon it, but he did hold that these houses had been constructed seven years before the suit. He has found that they have been used as the dwelling house of the defendants. It appears to me, therefore, that I ought to accept the finding as a finding of fact even though I might desire that the District Judge had given fuller reasons for it.

3. The second point is concluded against the appellants by the Bench ruling in Ras Behari Lal v. Akhai Kunwar AIR 1915 All 56. It was there laid down that Sections 59 and 60 of the Easements Act must be read together, and that where a structure of a permanent character has been made in pursuance of a license the transferee has no greater right than that possessed by his transferor. The appellants urge that it is difficult to reconcile this decision with the language of the section, but it is obviously a reasonable decision, as otherwise a man who had erected buildings of large value under a valid license would be liable to have his rights defeated at any time by a transfer made by the licensor. It is further urged that the ruling in Ras Behari Lal’s case AIR 1915 All 56 has been impliedly set aside by the ruling in Bhog Raj v. Hardeva A.I.R. l923 All 140. In the latter cases, however, there is no finding that the constructions in dispute were constructions of a permanent character.

4. The point at issue was whether a licence obtained an absolute right to the use of the land covered by the license if he had occupied it for more than twelve years. The Bench deciding the appeal held that this view was erroneous and further pointed out that as the plaintiff was a transferee the license had ceased to exist by operation of law. There being no case of a structure of a permanent character, this was obviously the case in view of Section 59 of the Easements Act. I, therefore, uphold the finding of the Court below and dismiss the appeal with costs.

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