JUDGMENT
A.N. Varma, J.
1. This is defendant’s second appeal arising out of suit for declaration, permanent injunction and possession in respect of a piece of land measuring 20′ x 6″ north south and 13′ x 10″ eastwest. The trial Court dismissed the suit. On appeal by the plaintiff, the suit has been decreed by the learned District Judge, Mirzapur. Hence the second appeal.
2. Briefly, the plaint case was that one Amresh Chand Pandey, the admitted owner and Zamindar of the land granted a piece of land measuring 45′ x 6″ north south and 13′ x 10″ east west on parjawatdari (license) on payment of Re. 1/- annually in June 1956 in favour of the plaintiff. The license was granted to the plaintiff with a right to construct a house thereon. In pursuance of that licence, the plaintiff constructed a pacca house over a substantial part of the land granted to him. He wanted to construct over remaining part of the land also and with that end in view foundation was laid, for the same but the same Was left unbuilt by the plaintiff and is being used as his sehan appurtenant to the house constructed by him. In the year 1971, however, the Zamindar and his co-sharers granted a lease in favour of the defendant, who started interfering with the plaintiffs possession, which led to the initiation of proceedings under Section 145, Cr.P.C. in the Court which the defendant found to be in possession over the vacant land referred to above immediately prior to the date of attachment under that provision. Hence the suit.
3. The suit was contested on the ground that the defendant was in possession under valid lease granted to him by the Zamindar. The plaintiff did not derive any right, title or interest over the land in question and that the licence, if any, granted in favour of the plaintiff stood revoked in consequence of the lease granted in favour of the appellant.
4. The trial Court dismissed the suit holding that the defendant-appellant was in possession of the disputed land as lessee thereof. The plaintiff, therefore, could not claim any relief against the defendant. The suit was accordingly, dismissed.
5. The appellate Court reversed the decree of the trial Court. The findings recorded by the appellate Court are that the land measuring 45′ x 6″ north south and 13′ x 10″ east west had been granted to the plaintiff under a licence for constructing a pukka house and acting upon that licence, the plaintiff did build a house over an area measuring 25′ north south and 13′ x 10″ east west. The remaining portion was, however, left to be utilised as Sehan for the beneficial enjoyment of the house; though even over this part of the land too, there was evidence of foundation having been dug. That being so, the lower appellate Court concluded, the Section 60 of the Easements Act was attracted. The result was that the grantor could not revoke the licence.
6. Sri Saran Behari Lal Srivastava, learned counsel for the appellant contends that even if it would be assumed that some kind of licence was granted to the plaintiff-respondent by the erstwhile Zamindar, Section 60 of the Easements Act shall have no application in so far as the unbuilt portion of the land granted to the plaintiff is concerned. Learned counsel submitted that Section 60 is applicable only in respect of that area of the land, over which the plaintiff constructed a house and not the remaining part of the land granted to him; consequently, it was open to the grantor to execute a registered lease in favour of the defendant, which would have the effect of overriding the licence.
7. I am unable to agree. A some what identical situation came up for consideration before this Court in the case of Azahar Husain v. Mansab, reported in 1940 All LJ 354 : (AIR 1940 All 324). The question raised there was whether Section 60(b) of the Easements Act could be pressed in and in respect of that portion of the land which is left by the licensee unbuilt and which is used by him as his Sehan Darvaja. There the licensee had instituted the suit for restraining the licensor from interfering with his possession in respect of vacant piece of land. The learned Judge hearing the second appeal negatived the contention of the licensee holding that where a licence is given to one to build a house on a piece of land and acting upon that licence, he builds a house keeping a portion of the land vacant so that it might be used as sehan darvaza the license would be irrevocable under Section 60(b) of the Easements Act both in regard to the site of the house as well as the piece of land, which is appurtenant thereto. The ratio was that a person building a house may legitimately use the land appurtenant thereto for the proper enjoyment of his house provided of course the licensee built the house in pursuance of the terms of the license and the site of the house and the appurtenant land does not exceed the area in respect to which the license was granted.
8. That precisely is the situation obtaining in the present case. With respect, I find myself in complete agreement with the ratio of the decision cited above. The finding in the present case is that the appurtenant land is being used by the plaintiff for tethering cattle and other miscellaneous acts. Further finding is that this land is part and parcel of the land which was granted to the plantiff under the license. That being so, Section 60(b) was attracted in terms. Lease granted in favour of the defendant was hence of no avail to the defendant as against the plaintiff.
9. The same conclusion is reached by another process of reasoning which is supported by a decision of the Kerala High Court reported in AIR 1969 Ker 23. In this case one of the questions raised was whether Section 60 was attracted to a case where the licensee acting upon the license builds a work of permanent character over a part only of the land granted to him leaving the remaining part vacant. The learned Judge held that if over a part of the land granted to the licensee has not constructed beyond the foundations Section 60(b) would still be attracted. The learned Judge rightly held that the foundation of a building is also a work of permanent character. The grantor would hence not be entitled to revoke the license after such a work has been executed.
10. The dictum applies with full force to the facts of the present case. The lower appellate Court has found that over the remaining part of the land left unbuilt by the plaintiff, there is evidence of foundations of a building dug in pursuance of the plan got sanctioned by the plaintiff.
11. In the result, the appeal fails and is dismissed but I make no order as to costs.