JUDGMENT
L. Mohapatra, J.
1. The defendants are the appellants against a reversing judgment.
The suit was filed for eviction of the defendants from the suit properties, for damages along with arrear rent as described in Schedule ‘C’ of the plaint, for permanent injunction restraining the defendants from entering into the suit plots and alternatively for recovery of possession in the event the plaintiffs fail to prove tenancy in respect of the suit property.
2. The case of the plaintiffs is that one Gangadhar Srichandan was the owner of the suit properties described in Schedules ‘A’ and ‘B’ consisting of two plots i.e. 400 and 398 extending to an area of Ac. 0.048 decimals and Ac. 0. 020 decimals respectively. The dispute relates to 20 decimals of land over which a pucca building consisting of three rooms and a shed is existing. So far as the rest portion of the disputed lands are concerned, they are partially used for the purpose of growing crops and are exclusively under the possession of the plaintiffs. The disputed plot No. 398 is recorded as Raiyati holding in the name of Gangadhar and he had been recorded as Sikimi tenant in respect of the disputed plot No. 400. Plaintiff No. 1 is the wife and plaintiff No. 2 is the adopted son of late Gangadhar. The further case of the plaintiffs is that Gangadhar in order to instal a rice huller and carry on business, constructed the suit house along with the verandah and the approach road situated over the suit plots. Though the required building had been constructed, the same could not be utilised by Gangadhar for running the business and as such remained vacant. The defendant No. 1 sometime in the year 1967 approached Gangadhar to take the house on monthly rent of Rs. 50/- in order to instal a rice huller there and carry on business. An agreement was entered into between Gangadhar and defendant No. 1, pursuant to which the defendant No. 1, occupied the suit land as a monthly tenant at will and installed the rice huller therein. After death of Gangadhar in the year 1973, the defendants defaulted in payment of rent and they had also not paid the rent prior to death of Gangadhar. It is also alleged in the plaint that the defendants made attempt to record their names in the Government records in respect of the suit properties and also attempted to deprive the plaintiffs from their legitimate right, title, interest as well as possession over the suit property on the pretext
that defendant No. 1 had taken the suit land on annual ground rent of Rs. 30/- from Gangadhar, constructed the disputed house wherein the rice huller was installed. The defendants also alleged that there was an agreement of sale of the suit land to the defendant No.2 (wife of defendant No. 1) for which Rs. 3,000/- had been paid to Gangadhar. It is further averred in the plaint that the defendants have got no manner of right, title and interest over the suit land and the defendants having not vacated the suit property in spite of service of notice under Section 106 of the Transfer of Property Act, the suit had been filed.
3. The defendants have filed a joint written statement denying the plaint allegations. The defendants case is that Gangadhar had entered into an oral agreement with the defendant No. 1 for the purpose of occupying the land in order to carry on business and instal a rice huller and pursuant to such agreement he had taken the land on ground rent at the rate of Rs. 30/- per year. The further case of the defendants is that defendant No. 1 had constructed the suit building with the verandah and the approach road incurring huge expenses and also installed the rice huller and carried on business on partnership basis along with two other partners. Subsequently, there was dispute between the partners and the two partners discontinued from the business by taking their contributions and late Gangadhar entered into a contract with defendant No. 1 to sell the suit land together with all its components on a consideration of Rs. 3,000/ – in the name of defendant No. 2 and had also received the said amount. It is also alleged in the written statement that though he promised to execute a sale deed, he could not do so and expired. The defendants claimed right, title, interest and possession over the suit land and also challenged the legality of the notice under Section 106 of the Transfer of Property Act.
4. On the above pleadings of the parties, the learned Subordinate Judge, Khurda framed eleven issues and on discussion of the evidence on record, dismissed the suit on the following findings :
1. The plaintiffs have got no right, interest or possession over the suit land.
2. The defendants are not at all monthly tenants under the plaintiffs and as such the plaintiffs are not entitled for damages.
The appeal filed by the plaintiffs was allowed on the following findings :
(a) The defendants are deemed to be licensees or at most tenant-at-will in absence of any evidence to the contrary. Thus, the question of the structure having been put up by the defendants in accordance with the terms of any license does not arise.
(b) The finding that Gangadhar was a Sikimi Rayat in respect of the plot No. 400 and as Sikimi right is not heritable the plaintiffs have no locus standie to bring the present suit for eviction is erroneous. The defendants having entered upon the suit lands as licensees or at most tenants-at-will under Gangadhar or his successors-in-interest, the aforesaid point was relevant only when there is a dispute between the landlord of Gangadhar in one hand and the successors of Gangadhar on the other hand regarding title. Hence in the present suit whether Sikimi right is heritable or not is wholly irrelevant.
5. In this appeal preferred by the defendants, the plaintiffs have also filed cross-objection under Rule 22, Order 41, CPC claiming damages as described in Schedule ‘C’ of the plaint.
6. At the time of admission, this Court formulated the following substantial questions of law :
“(1) For that in view of the concurrent findings of both the Courts below that (defendants) appellants have constructed the house upon the plaintiff’s land and with the permission of one who is the husband and father of plaintiff Nos. 1 and 2 respectively, the appellants (defendants) are deemed to be the licensees and are entitled to protection as provided in Section 60B of Easements Act.
(2) For that in view of the concurrent findings of both the courts below that the Appellants (defendants) are licensees who have constructed the house with permission of the owner, the respondents (plaintiffs) are not entitled to dispossess the defendants-appellants without revoking the license of the appellants in accordance with law.
(3) For that in view of the admitted fact that a portion of the disputed land recorded as Sikim in favour of the father of the respondent (plaintiffs) who expired before starting of the suit, such right not being heritable, the respondents (plaintiffs) have no title to that portion
of disputed land i.e. in plot No. 400 and thereby they have no right to challenge the claim of the appellants (defendants).”
7. Referring to the substantial questions of law Shri Mukherjee, the learned Senior Counsel appearing on behalf of the appellants submitted that the appellants being the licensees in respect of the suit properties, keeping in mind the admitted facts, Section 60(b) of the Indian Easements Act, 1982 should have been taken note of and the necessary protection provided under the said provision should have been extended to them. Shri Mukherjee further submitted that in respect of the other portion of the suit property i.e. plot No. 400 Gangadhar, the original recorded owner was a Sikimi tenant and such right not being heritable or transferable, the present respondents who are successors in interest have no right to file the suit in respect of the said portion of the land in dispute. Miss. Sanju Panda appearing for the respondents, on the other hand, submitted that even on consideration of the admitted facts, Section 60 (b) of the Easements Act is not available to the appellants and therefore, the lower appellate court was justified in rejecting such plea. So far as plot No. 400 is concerned Miss. Panda submitted that the title of the landlord cannot be challenged by the tenant except under certain circumstances and basically the question as to whether the Sikimi right is heritable or not is a question confined to the landlord and his successors in interest and the appellants who are tenants of the licensee have no right to challenge the same.
8. There is no dispute that one Gangadhar Srichandan was the owner in possession of the suit properties described in Schedules ‘A’ and ‘B’ of the plaint. The suit properties are two contiguous plots i.e. plot No. 398 and plot No. 400. Both the plots covered an area of Ac. 0.68 decimals out of which the dispute is in respect of Ac. 0.048 decimals to its west and north over which a road and verandah along with a space exist. Plot No. 398 is recorded as a Rayati holding in the name of late Gangadhar in respect of which he has been described as a Sikimi tenant. The further admitted position is that there is a building on the suit plot which was taken possession of by the defendants-appellants and a rice huller was installed therein for the purpose of running a business. The dispute relates to the question as to who constructed the house standing on the disputed plot and as to whether there was an oral agreement for sale of the disputed property by late Gangadhar in favour of the defendants.
9. The learned Subordinate Judge, Khurda dismissed the suit holding the defendants to be licensees and further holding that they are entitled to protection under Section 14 of the Easements Act. So far as plot No. 400 is concerned, the learned Subordinate Judge, held that late Gangadhar was recorded as a Sikimi tenant in respect of the same and such tenancy not being heritable, the plaintiffs had no right to claim title over the same. The lower appellate court while confirming the finding of the learned Subordinate Judge that the defendants are licensees in respect of the suit properties, differed with the learned Subordinate Judge with regard to protection that may be available to the defendants under Section 60(b) of the Easements Act. The lower appellate court in respect of plot No. 400 also reversed the finding of the learned Subordinate Judge on the ground that the defendants have no right to challenge the title of the plaintiffs as the question of Sikimi tenancy heritable or not is basically confined to Gangadhar and his successors and a tenant/ licensee had no right to question the same. So far as the first point i.e. the applicability of Section 60(b) of the Easements Act is concerned, from the discussions of the evidence by the learned Subordinate Judge it appears that he accepted the defendants case that the defendant No. 1 had constructed the house in question which is not reversed by the lower appellate court. In view of the above, it can safely be concluded that both the courts accepted the claim of the defendant No. 1 that he had constructed the house and remained there as a licensee. Section 60(b) of the Easements Act provides that a licence may be revoked by the grantor, unless the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution. Relying on the said provision it was contended by Shri Mukherjee that the defendant No. 1 having been held to be a licensee and the trial court having found that the defendant No. 1 constructed the permanent structure on the said plot, the aforesaid provision is squarely applicable to the case. In this connection, reference may be made to a decision of the Calcutta High Court in the case of Radhakrishna Hazra v. Joykrishna Hazra reported in AIR 1967 Calcutta 204. The Calcutta High Court in the aforesaid decision while dealing with the aforesaid provision of law observed as follows :
“In a suit for eviction in which the defendant is held to be a licensee, though the defendant has erected some pucca structures and has spent some money for the same, it cannot be inferred that the same was done by him acting on the license or within the terms of the
license. In this view, the defendant would not be entitled to any relief or protection under Section 60 or the principle underlying the same, or even to compensation under the decisions in (1910) 12 Cat L. J. 443 and AIR 1914 Calcutta 173.”
So far as the present case is concerned, a definite claim is made by the plaintiffs that the suit house was constructed by Gangadhar and not by defendant No. 1. Though the evidence from side of defendant No. 1 with regard to construction of the house had been found to be worthy of credit, there is no material on record to show that the defendant No. 1 constructed the rooms acting on the licence or within the terms of the licence granted to him. In view of nonavailability of such material on record, I am inclined to accept the view of the Calcutta High Court referred to above and hold that the defendants cannot claim any protection under Section 60 of the Easements Act. No other decision taking a contrary view having been placed before the Court, there is ho reason for this Court to take a different view what has been decided by the Calcutta High Court in the aforesaid decision.
10. So far as plot No. 400 is concerned, there is no dispute that late Gangadhar was recorded as Sikimi tenant in respect of the same. Both the courts have held that Sikimi tenancy is neither heritable or transferable. Even though Miss. Panda, learned counsel appearing for the respondents referred to the only decision of this Court where a contrary view was taken, I am not inclined to accept the said decision as several other decisions of this Court have categorically held that Sikimi tenancy is neither heritable or transferable. This Court in a recent decision in the case of Natabar Pandey v. Sri Sri Pareswar Dev and Ors. (OJC No. 4349 of 2002 disposed of on 30.10.2002) has also taken the view that Sikimi tenants being under raiyats, such right is neither heritable nor transferable. The lower appellate court avoided the question raised in relation to the above by holding that a licensee of a tenant has no right to challenge the title of the landlord. Reliance was placed on a decision of Krupasindhu Routra and Anr. v. Puma Chandra Misra and Ors. reported in Vol. 38 (1972) CLT 764. While interpreting Section 116 of the Evidence Act, this Court held that a tenant who has been let into possession cannot deny his landlord’s title at the commencement of the tenancy, however defective it may be, so long he has not openly restored possession by surrender to his landlord. In my view, this question need not be gone into since the admitted position so far as plot No. 400 is concerned is that
State of Karnataka v. Vishwabarathi House Bdg. Co-op. Society
late Gangadhar was a Sikimi tenant and such tenancy not being heritable or transferable, the plaintiffs cannot claim title over the same and bring any suit for eviction.
11. In view of the findings arrived at, the prayer of the plaintiffs for eviction so far as it relates to plot No. 398 with any construction standing thereon is decreed and the suit stands dismissed so far as plot No. 400 and construction standing thereon are concerned. The decrees of the Courts below are modified to the above extent.