1. This is a plaintiff's second appeal against a decision of the Additional Civil Judge of Farrukhabad dismissing his suit for possession of a house and the land surrounding it which has been described as a sahan. The plaintiff Sukh Basi Lal alleged in his plaint that he is the owner of the house situate in the abadi of the village Pipergaon in the district of Farrukhabad, that this house was let out to the defendant Durjan Singh on rent, that the defendant was asked to vacate the house but refused to do so; hence the suit.
2. The defendant contested it and denied that he was a tenant, though he admitted that the plaintiff is the owner of the property in dispute. He alleged that about 35 years ago he built the house on the site of a Khandhal with the permission of the plaintiff who had allowed him to live it ever since. The defendant pleaded that as he had constructed the house at his own expense he was a licencee whose licence was protected by Section 60 of the Easements Act and irrevocable. The trial court believed the plaintiff's version and held that the defendant was a tenant; consequently it passed the decree against the tenant and for damages. On appeal the learned Judge took a contrary view of the evidence and rejected the plaintiff's case about the tenancy as false and believed the defendant that he had been permitted by the plaintiff to construct the house on the plaintiffs khandahal about 35 years prior to the suit and had been living in it ever since. Accordingly, it held that the defendant was protected by Section 60 of the Easements Act and dismissed the plaintiff's suit in toto. The learned Judge also held that the suit was barred by limitation. The plaintiff has now come to this Court in second appeal.
3. Before considering the arguments of the parties on merits I would like to dispose of a contention raised by Mr. K.C Saxena learned counsel for the respondent in the course of argument which, however, is in the nature of a preliminary objection that the plaintiff has no longer any locus standi to maintain this suit after the passing of the U.P Zamindari Abolition and Land Reforms Act. Mr. Saxena contended that the property in dispute, being an estate within the meaning of Section 3 of the Z.A and L.R Act., vested in the State after 1st July, 1352 and was simultaneously settled with the defendant under Section 9 of the Act.
4. Mr. Saxena pointed out that the plaintiff had sued for possession of the land which is an implied admission that the defendant is in possession. Therefore, according to counsel, the defendant held this land together with the area appurtenant thereto and it shall be deemed to be settled with him by the State Government under S. 9, and the plaintiff has lost his right to possession even if he had any.
5. In reply to this preliminary objection, Mr. R.C Ghatak, learned counsel for the appellant, denied that the land in dispute is an estate within the meaning of Sec. 3. Counsel quoted from the opening words of the plaint in which this land is described as under the ownership (milkiyat) of the plaintiff. Mr. Ghatak stated that the plaintiff is not a zamindar and there is nothing on the record to prove that he is.
6. Counsel for the respondent has argued that the very fact that the land has been described as situate in a mauza raises a presumption that it must form part of an estate within the meaning of Sec. 3. I do not think, that any presumption can be made in law that the plaintiff was the zamindar or that the land was an ‘estate’. Mr. Saxena then relied on an entry in the Khasra of the abadi relating to the house and the land appurtenant to it. This entry described the land and the house as belonging to Sukhabasi Lal (the present plaintiff). I do not think that an entry in the Khasra is conclusive proof that, any plot of land entered in it is an estate within the meaning of Sec. 3, or that the owner was an intermediary and not a cultivator. It is common knowledge that even in cities, Where no question of existence of an estate Within the meaning of Sec. 3 arises, Khasra entries include plots which have long since become urban property Under the complete ownership of the city dwellers.
7. I must, therefore, hold that there is noihing to prove that the plaintiff was an intermediary on 1st July, 1952 or that the land in dispute vested in the State under the notification issued under Section 4 of the Act. The defendant should have Supported his preliminary objection by cogent evidence. He had plenty of opportunity to do so, for the appeal was filed in 1952 and its admission meant a warning to the defendant that the possibility of its being allowed could not be excluded. He could have filed an application supported by an affidavit together with documentary evidence in support of his preliminary objection. He has not done so, and 1 do not think that the rights of the plaintiff can be determined on mere surmises and conjectures.
8. There is another reason why the preliminary objection must fail. The defendant was in occupation of the land in dispute with the permission of the plaintiff — that is under a licence. If the licence was irrevocable he is entitled to continue in occupation; but if it was not, his licence must be deemed to have been revoked by the plaintiff when he filed the present suit for possession. If this court holds that the defendant was in possession of the land surrounding the house under a revocable licence, it would follow that he had no right to continue on the land after the plaintiff had asked him to quit and his possession became that of a trespasser. Section 9 does not protect a person in wrongful possession of the land, as held by a Full Bench of this Court in Budhan Singh v. Nabi Bux, 1961 All LJ 536 : (AIR 1962 All 43) (FB). Therefore, in any view of the matter the preliminary objection must fail.
9. Mr. R.C Ghatak learned counsel for the appellant stated at the outset that he did not propose to assail the finding of the appellate court that the defendant was not a tenant of the plaintiff and that he had built the house in dispute under a licence from the plaintiff about 35 years prior to the suit. Learned counsel conceded that these were findings of fact which were not open to review by this Court in second appeal. But Mr. Ghatak contended in a very brief argument that the appellate court had erred in dismissing the plaintiff's suit in toto. Learned counsel pointed out that the plaintiff had asked for possession of the house as well as the land surrounding it which had been described as a sahan, and that the defendant's licence was irrevocable in law only to the extent of that portion of the land which is covered by the building but revocable as regards the open land at present occupied by the defendant.
10. I have heard learned counsel for the parties at considerable length and read the plaint, the written statement, and the evidence of the parties. In my view, Mr. Ghatak's contention is sound. The defendant's two case, in his written statement, was that he had constructed the house in dispute with the permission of the plaintiff and that, therefore, he was not liable to ejectment, being protected by a licence which is irrevocable under Section 60 of the Easements Act. In his testimony before the court the plaintiff repeated this assertion and admitted that the plaintiff is the owner of the entire land and that his own right is entirely derived from the licence.
11. The fact that the defendant is in occupation of the house and the land surrounding it with the permission of the plaintiff is not open to review in this second appeal. Mr. Ghatak conceded, in view of the findings of the appellate court, that the licence in favour of the defendant must be deemed to be irrevocable as regards the actual site on which his constructions stand. Learned counsel's concessions, very properly made in my opinion, have saved the court from wasting its time on unnecessary peruse of the entire record.
12. The only question before me is whether the irrevocability of the licence in favour of the defendant must be limited to the actual site on which his constructions-stand or be extended to the whole of the open land which is called a sahan in the plaint.
13. It appears that the plaintiff appellant filed an application for review before the appellate court on the ground that the plaintiff's suit should have been decreed at least as regards the land surrounding the house for which the defendant held no irrevocable licence. The application was rejected by that court, the learned judge who heard the application not being the one who passed the decree. But the order refusing a review cannot affect the powers of this Court in appeal.
14. In my opinion the weight of judicial authority is in the plaintiff's favour. In Mt. Manbi v. Kodu, AIR 1929 Nag 269 it was held that where a person had been permitted to live in another's house after the owner had allowed him to rebuild the house at his own expense he had an irrevocable licence to continue to live in it, but the irrevocability was limited to that portion of the site which was covered by the building and not to another open portion of the site. The Nagpur High Court followed an earlier decision of this Court in The Land Mortgage Bank of India v. Moti, ILR 8 All 69, in which it was held that the tenants who had constructed some wells at their own expense with the permission of the zamindar had acquired a right to the wells under Section 60 of the Easements Act which could not be interfered with, but the zamindar could revoke the licence for the other use claimed of the land.
15. The principles laid down in these two cases can be extended to the facts of the present case. The defendant was permitted to construct a house on a small portion of the plaintiffs land. As indicated by a map prepared on the direction of the trial court by the amin, the area of the entire land in dispute is 132 feet by 50 feet, but the area of the site on which the constructions are situate is a very small portion of it. Moreover, the house is situate in a corner towards the south-east of this land. It is true that the defendant has been enjoying the use of the land surrounding his constructions with the permission of the plaintiff, but I do not think that the permission to use the open land can from part of the irrevocable licence.
16. Mr. K.C Saxena argued that if this Court holds the licence to use the sahan as revocable, it will be upsetting a finding of fact in second appeal. Learned counsel was asked to state which finding of the appellate court would be upset by the view taken by this Court, and he quoted the following observation at page 10 of the certified copy of the judgment of the appellate court:
“I am satisfied that the house in suit was constructed by the defendant about 35 years back on the site of the khandahal of the plaintiff and with the permission of the plaintiff. The plaintiff remains the owner of the site but he is not entitled to possession of the site so long as the house stands. This case that the house belongs to him and was in his possession till June 1944 when the defendant is alleged to have occupied is false.”
As I read this finding, the learned Judge has found that the defendant constructed the house on the site of the plaintiff's khandahal with permission. There is not a word about the sahan. Therefore, the question whether the protection of Sec. 60 extends only to the site on which the house was built or extends to the entire land is a question of law which arises out of this very finding. In my opinion, that court erred in unduly extending the irrevocability of the licence to the whole land. This is not only contrary to Law but offends against one's sense of equity and justice. He is entitled to the protection of Section 60 of the Easements Act against ejectment from the site on which he has built the house, but not against ejectment from the land surrounding the house. The parties were on friendly terms at that time and it is not surprising that the plaintiff had no objection to the defendant using the surrounding land as his open sahan. But I do not think that the permission can amount to an irrevocable licence to use the open land for all time. In these cases, in considering how much of the licence is irrevocable, the Court should compare the expense incurred by the licensee on the construction of the house with the value of the area of the land which he seeks to include in his irrevocable licence. A person cannot claim a whole park because he was allowed to construct a net in a corner of it. The Court should also consider any other relevant circumstance such as the position of the house as for example, whether it stands in a corner of the land, as in the present case.
17. Mr. Saxena then contended that the sahan muss be regarded as an indispensable appurtenant of the house. He was asked to support this argument from evidence but was unable to point out any statement either of the plaintiff's or the defendant's witnesses indicating that the sahan is indispensable for the defendant's enjoyment of the house. The mere use of the word ‘sahan’ raises no presumption that it is indispensable.
18. Learned counsel then contended that if the permission to use the land is not a part of the irrevocable licence to build the house, the suit must be dismissed as time-barred, as the defendant's possession could only be adverse to the title of the plaintiff. I am not much impressed with this argument. The defendant's own case is that he occupied the entire property including the and with the permission of the plaintiff. No question of adverse possession, therefore, arises. A revocable licence cannot give the licensee any title by adverse possession unless he remains in possession after it is revoked.
19. No other point was urged on behalf of the respondent.
20. This appeal must, therefore, be allowed in part. The plaintiff's suit for ejectment stands dismissed as regards the actual site on which the defendant's house was constructed, but is decreed as regards the open portion o? the land in dispute. It is made clear that the defendant shall be ejected from that portion of the land on which he built his chabutra and the chardiwari, but not from the residential kothas which he constructed prior to the suit under a licence from the plaintiff.
21. Before leaving this case I would like to mention that the court suggested to counsel for both parties that this was a fit case for a compromise because the present position would leave both of them in a somewhat unsatisfactory position. The court suggested that the plaintiffs should permit the defendant the use of the land immediately to the west and the south of his residential quarters but the plaintiff should be allowed to resume possession of the rest of the land. This compromise would have given the defendant exclusive possession and enjoyment of his house and a part of the land which is separate from the rest.
22. Mr. R.C Ghatak learned counsel for the appellant was prepared to accept this compromise on his own responsibility, but Mr. K.C Saxena Jearned counsel rejected it on the ground that he had no instructions and could not accept it without obtaining fresh instructions. The Court was not disposed to adjourn this case as the counsel's power of attorney includes the power to make any reasonable compromise in the suit. By refusing Mr. Ghatak's generous offer the defendant has lost all the open land.
23. As the plaintiff has partly succeeded in his appeal I direct the parties to bear their own costs throughout.
JF/J/D.H.Z
24. Appeal allowed.