1. This appeal is filed by the defendant challenging judgment and decree dated 29-7-98 passed by 9th Addl. District Judge, Gwalior in Civil Suit No. 217-A/96.
2. Brief facts of the case are that a house No. 150/50 is situated at Kudalkar Ki Goth, Kempu, Lashkar, Gwalior. Plaintiff has filed a suit for ejectment in respect of portion of a house which is in possession of the present appellant. According to the plaintiff the said property was initially owned by Vitthal Rao (dead). Vitthal Rao has four sons namely Madho Rao, Narayan Rao, Gopal Rao and Krishna Rao (all dead). Madhav Rao has one son Keshav Rao who died in the year 1938. Narayan Rao's son Madho Rao died in the year 1941. Keshav Rao has three sons namely Ramchandra Rao, Lakshman Rao, who died on 10-6-69 and Anand Rao who was adopted by Keshav Rao.
3. Ramchandra Rao filed a Civil Suit No. 29-A/97 for partition. In that case it was held that the suit property exclusively belongs to plaintiff Anand Rao and Ramchandra Rao is in possession of the same as a licensee. This judgment and decree was challenged by the plaintiff by filing F.A. No. 56/80 which was dismissed on 17-9-90 and L.P.A. against the said order was also filed but the order was maintained. Copies of the judgments are on record as Exs. P-l, P-3 and P-4. Thus, it has become final between the parties that plaintiff Anand Rao is the exclusive owner of the suit property and the defendant is in possession of the suit property described in Paragraph 1 of the plaint as a licensee. Defendant Ramchandra Rao was allowed to reside in this house till he construct his own house. According to the plaintiff this condition was violated by the defendant. He has not constructed any house till now. He was permitted to reside in the house all alone but he has permitted his sons and other members to reside in the suit premises and he has also constructed a 'Pakka' building in the suit premises without permission of the plaintiff hence his license is revoked.
4. Defendant filed his written statement stating that he is in possession of the property as a member of joint family and he has a birth right in the property and hence has a right to reside in the suit property as one of the members of co-parceners. According to him he is in possession of the suit property since 1925. He has constructed new rooms in place of old construction within the knowledge of plaintiff and has spent huge amount on construction. According to him since he has constructed a 'Pakka' construction the license in his favour has become irrevocable. Trial Court framed two issues and decreed the suit.
5. Shri H.D. Gupta, learned Counsel for the appellant very vehemently urged that since the appellant has made some 'Pakka' construction in the suit premises within the knowledge of the plaintiff he has got implied permission for construction and hence the license in his favour has become irrevocable. He also urged that the plaintiff has not raised any objection at the time of construction, hence he is now estopped from revoking the license. He further submitted that the Court below has not properly framed the issues and, therefore, the matter requires to be remanded. Shri H.D. Gupta, in support of his arguments that the license in favour of defendant is irrevocable license has relied on section 60 of the easement act. said section reads as under:--
License when revocable.-- A license may be revoked by the grantor, unless--
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.
6. According to Shri Gupta, since he is a licensee and has raised a 'pakka' construction in the suit premises, the licence in his favour has become irrevocable.
7. By bare reading of Section 60 of the Easements Act it is clear that by getting a irrevocable license it is necessary to plead and prove that the construction was carried out by the defendant in pursuance of the agreement. The words 'construction relying on the license' means that there must be a condition in the license itself that the licensee is permitted to raise 'pakka' construction. In absence of any such condition in the license, the license does not become irrevocable.
8. Shri R.D. Jain, learned Counsel for the respondent has relied on the judgment of the Apex Court in the case of Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan., AIR 1976 SC 2506, Chevalier I.I. Iyyappan and Anr. v. The Dharmodayam Col Trichur, AIR 1966 SC 1017, Gujrat Ginning and Manufacturing Co. Ltd., Ahmedabad v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd., Ahmedabad, AIR 1936 Privy Council 77.
9. After perusing the said judgments it is clear that in absence of any condition in the license that the licensee is permitted to raise 'Pakka' construction the license does not become irrevocable. For getting the benefit of Section 60 it is for the licensee to plead and prove that there was a condition in the license to the effect that the land is given to the licensee to raise 'Pakka' construction. In the present case there is an oral license and the defendant has not laid any evidence to prove that there is any condition in the license relying on which he has made a construction. Even in amended Para 12 of the written statement where he has raised a plea of irrevocable licence, he has nowhere stated that in the license there was condition that the licensee will raise a 'Pakka' construction in the suit premises. In absence of these pleadings the defendant in this case is not entitled to get benefit of Section 60 and in such circumstances it can not he held that the license was given to the defendant for raising a 'Pakka' construction.
10. As regards question of estoppel, the defendant was knowing the fact that the suit premises was given to him only for a temporary period till he constructs his own house. Thus, he was knowing that he is not the owner of the property and is permitted to reside in the suit property for a temporary period till he can manage to acquire any other suitable house for his residence. After knowing all these facts if he constructs a building on the land owned by the plaintiffs then he has to thank himself for it. The principle of estoppel will not help the defendant in the present case who was fully aware of the fact that license was given to him to reside in the suit premises till he manages to acquire other suitable house for him. Even though he is in possession of the land since 1925 he has not made any efforts to acquire the suitable house for him.
11. In such circumstances the pica of estoppel is also not applicable in the present case merely because defendant has constructed some rooms in the suit premises. Moreover, in the present case parties were litigating the matter since long. Partition suit filed by the defendant was dismissed in 1980. In spite of the pendency of the litigation if some construction is made in the suit land the question of implied permission also does not arise because till 1980 the plaintiff was claiming to be in possession of the property as coparcener. Therefore, the questions of acquisitions docs not arise in the case.
12. Now, the last question which was urged by Shri Gupta, learned Counsel for the appellant is that the Court has not framed proper issues. This argument also has no force. Once the parties have understood each others case and led evidence and contested the matter on particular issue then the trial will not be vitiated only on the ground that specific issue that question is not framed as has been Laid down by Apex Court in the case of Nagubai Ammal & Others v. B. Shama Rao & Others, AIR 1956 SC 593.
13. In the result I do not find any error in the impugned judgment. Appeal is, therefore, dismissed with no orders as to costs. Judgment and decree of the Trial Court is confirmed.