1. One Sukhain died, leaving two widows Sukawara and Sukarti. Ramrattan, the father of the plaintiff, who is a minor, was the next reversioner.
2. In Sambat 1966 the two widows remarried. In Sambat 1967 Sukwara mortgaged a 2 annas share of mouza Urna and certain malik mahbuta lands which were her husband's property to defendant Karselal and leased for a term of 9 years the sir, Khudkasht and malik makbuza lands to his father defendant Jhurroo. Ramrattan died in Sambat 1970 or 1913 A.D In suit No. 52 of 1917 the plaintiff sued the defendants for possession, obtained a decree and took possession of the village share and the lands in December 1918.
3. In the present suit he sues for mesne profits of the lands leased to Jhurroo for the years 1914 to 1919. It is not denied that both defendants were in possession of these lands. The pleas of the defendants with which we are concerned in this appeal are contained in paragraphs 3, 4 and 7 of Karselal's written statement and paragraph 9 of Jhurroo's written statement. They are as follows:—
“Karselal's written statement.—
3. That Ramrattan, father of the plaintiff, divided the property left by Sukhain between his widows after there re-marriage and actually helped them in retaining possession and in mortgaging and leasing out the property and allowed Mt. Sukwara to be the ostensible owner of the property, for which mesne profits are claimed.
4. That this defendant therefore parted with Rs. 1,300 and the plaintiff is now estopped from claiming any portion of profits and from denying Mt. Sukwara's power to lease and mortgage.
That defendant No. 2 became an ordinary tenant by virtue of the leases granted to him by Mt. Sukwara with the consent and tacit license from Ramrattan. Plaintiff was not even born then.”
“Jhurroo's written statement.—
9. That this defendant was not a trespasser and held the sir, khudkhasht and malik makbuza lands in mouza Urna under leases executed by Mt. Sukwara who was then the ostensible owner and in possession of the said lands.
This defendant had no knowledge of Mt. Sukwara's re marriage and acted in good faith in taking the leases from her with the knowledge and consent of plaintiff's father Ramrattan who was alive then.”
4. The plaintiff in reply did not deny any of these pleas but only said that they were res judicata by reason of the judgment in the suit for possession. The issues framed on these pleadings were;—
“Issue (1). Is not the judgment in the suit for possession (No. 52 of 1917) conclusive as to the right of the plaintiff to claim mesne profits as against the defendants?
(4) Can the defendants plead the plaintiff's father's consent and knowledge of the mortgage and leases as a bar to the plaintiff's claim for mesne profits. Are not these pleas res judicata?”
5. These issues have been found against the defendants by the lower Courts.
6. In second appeal it was at first contended that the defendants' possession was so far as Ramrattan was concerned as licensees and that the plaintiff who claimed through Ramrattan and not as reversioner himself could no more treat the defendants as trespassers than could Ramrattan before giving a notice revoking the license, that such notice could not be said to have been given before the institution of the suit for possession and that not more than one year's profits being due after the institution of that suit, a decree for more than one year's mesne profits should not have been given.
7. When in reply to this argument it was contended that no plea of a license given to the defendants by Ramrattan was raised or put in issue and that the pleas raised by them were decided or must be deemed to be decided against them in the former suit where the mortgage and the leases were held to be wholly void against the plaintiff a new line of argument was adopted.
8. It was argued that Sukwara was allowed to be in possession by the rightful owner Ramratan and for the purposes of enjoyment she let the property to the defendants and that therefore neither her possession nor that of the defendants was that of trespassers.
9. The answer to this argument is that Sukwara held the property only as a licensee and the license not being transferable the defendants would be, so far as Ramrattan was concerned trespassers. The mortgage and the lease were really one transaction amounting to a usufructuary mortgage for 9 years for the sum advanced and considering that the license might terminate at any time by revocation or by death of the licensee the trans action cannot be treated as a mode of personal enjoyment under the license.
10. Assuming, however, that there was an implied license by Ramrattan in favour of the defendants and that it was in effect pleaded, the question is whether it continued beyond Ramrattan's life-time and bound his successor until the latter gave notice of revocation. It is not contended that the license to the defendants was a license to which either of Cls. (a) and (b) of Section 60 of the Easements Act applied. It was therefore revocable by the grantor.
11. Admittedly Ramrattan did not revoke it before his death, but if he had transferred the property affected by it, the transferee would not have been bound by it, (Section 59 of the Easements Act), and the licensee would have been a trespasser so far as the transferee was concerned: vide Wallis v. Harrison (1838) 51 R.R 715 , 4 M. & W. 38 , 8 L.J (N.S) Ex. 44 and Coleman v. Foster (1856) 108 R.R 442 , 1 H. & N. 37 , 4 W.R 489 , 156 E.R 1108. In Wallis v. Harrison (1838) 51 R.R 715 , 4 M. & W. 38 , 8 L.J (N.S) Ex. 44, it was argued that the transferee was not competent to treat the licensees as trespassers without notice of the transfer. Parke, B., observed:.
“I take it to be clear that a parol executory license is countermandable at any time; and it the owner of land grants to another a license to go over or do any act upon his close, and then conveys away that close, there is an end to the license; for it is an authority only with respect to the soil of the grantor, and if the close ceases to be his soil, the authority is instantly gone”
“a, license executory is a simple authority excusing trespasses on the close of the grantor, as long as it is his, and the license is uncountermanded, but ceases the moment the property passes to another.”
12. In Coleman v. Foster (1856) 108 R.R 442 , 1 H. & N. 37 , 4 W.R 489 , 156 E.R 1108, it was argued that the transferee of the grantor of the license took the property subject to the license and could not treat the licensee as a trespasser until he had done some act to notify that he had determined the license. This argument was not accepted and in both the above cases it was held that the licensees were liable in trespass to the transferees.
13. It would appear from the judgment of Bramwell, B., in Coleman v. Foster (1856) 108 R.R 442 , 1 H. & N. 37 , 4 W.R 489 , 156 E.R 1108, that the permission which can be relied on in an action of trespass is the permission of the plaintiff himself.
14. These decisions appear to be based on the principle that a license is of a personal character not merely as regards the grantee, but also as regards the grantor.
15. There seems to be no reason why the principle of these decisions should not also apply where the property has passed by inheritance.
16. The permission given by Ramrattan came to an end with his death and there after there being no permission by the plaintiff the defendants were trespassers: so far as he was concerned. The appeal fails and is dismissed with costs.
17. Appeal dismissed.