1. This is an appeal by the defendant who was unsuccessful in the trial Court as well as in the lower appellate Court. The plaintiff brought a suit against the defendant for possession of a certain plot of land on which a kachcha house stands and for the recovery of Re. 1 as arrears of ground rent. A registered kirayanama dated 14th September, 1918 was produced by the plaintiff. The suit was contested by the defendant on the allegation that he was given a permanent right of occupation in the disputed plot by the former zamindar and a large sum of money was spent by him in erecting the house upon it and the suit was, therefore, in any event barred by Section 60 of the Easements Act. As I said before, a registered kirayanama was filed in evidence. In this kirayanama signed by the defendant it was agreed by him that he was taking the plot of land for the purpose of constructing a kachcha house on it and to live in it as a reyeya and it was further agreed that whenever the landlord wanted he could get the land vacated. Certain oral evidence was also tendered by the parties, as a result of which the kirayanama was formally proved and the fact that a rupee was due as arrears of ground rent was also proved. It also appeared from a certain witness produced by the defendant that the building erected by the defendant on the disputed land consisted of a kachcha enclosure wall with a bamboo gate, Sahdari made of kachcha bricks and a dubari of which the front pakha was pucca and the back one was kachcha.
2. Upon these facts I have got to adjudicate upon the rights of the parties. It is quite clear in view of the decision in 26 All. 3681 that the kirayanama, dated 16th September, 1918 cannot operate as a lease, but at the same time the document is attempted to be enforced not against the plaintiff lessor (who never executed any document) that against the defendant who executed the document. He of course is bound by the terms of the document unless he is able to prove fraud or coercion and all that the plaintiff wants in the present case is that the defendant should be held bound by the kirayanama. Learned counsel for the defendant-appellant has argued that the document not being a lease needs must be a licence. I cannot agree with this contention. Licence has been defined in S. 52 as follows:
“Where one person grants to another, or to a definite number of other persons, a right to do of continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.”
3. Here again, the document is not by the zamindar granting to the defendant a right to do or continue to do, in or upon the immovable property of the zamindar something, etc., but it is a Mrayanama executed by the defendant containing certain terms on which the defendant accepted to build a house on the land. The document having been legally proved the defendant must be held bound by it. Section 60 of the Basements Act, was pleaded by the defendant throughout, and I may concede for the defendant that the construction which has been built upon the premises is a work of a permanent character within the meaning of that expression in Section 60 of the Easements Act. I agree, however, with Mohammad Ismail, J. in what he said in A.I.R 1938 All. 322 at page 34:
“Again, I have not been referred to any provision of law which precludes a party from binding itself to surrender land, although there may be a construction of a permanent character standing thereon.”
4. In 1931 A.L.J 6493 a Bench of this Court, of which I was a member, said:
“In the absence of any express terms to the contrary, the case would come under Section 60 of the Easements Act, under which a licence cannot be revoked when the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.”
5. It was clearly recognized in this case that a contract to the contrary would disentitle the licensee from deriving advantage conferred by Section 60 of the Easements Act, and in the present case the defendant has, in terms expressed and in unambiguous language, given out that the landlord would have the right to get the site vacated whenever he so chose.
6. I have not been able to appreciate the argument of learned counsel for the appellant based on Section 23 of the Contract Act. There is nothing illegal in the contract such as I have been considering and I cannot see why the contract cannot be given effect to. For the reasons given above, there is no force in this appeal and I dismiss it with costs.
G.N/R.K
7. Appeal dismissed.