# Dharmendra Yadav v. Girish Kumar Sahni

- **Citation:** (2020) 1 ILRA 1472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-18
- **Case number:** Second Appeal No. 1045 of 2019
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-yadav-v-girish-kumar-sahni-45669
- **Pages:** 15

## Headnote

Sri Sunil Dutt Kautilya, Sri H.N. Singh, Sri
Vineet Kumar Singh

A. Licence cannot be revoked, if the
licencee acting upon the licence had
executed a work of permanent character
as contemplated by section 60(b) of the
Easement Act. (Para 26)

B. Code of Civil Procedure, 1908 - Section
100
-
challenge
to-decree
of
suitappellant was in possession of the shop
as licencee-nature of licence whether
revocable or irrevocable was in issue
before the appellate court-fixture on the
wall of disputed shop is not at all an
improvement of permanent character-no
material on record to show that any
construction was made inside the shopraising of wall or removal of existing wall
may not amount to permanent structurethus, licence in favour of appellant
remains of revocable nature-conclusion
arrived at by the lower appellate court is
legally sustainable. (Para 12 to 17, 31 to 42)

C. Licence is merely for the use of the
licensed property by the grantee and it
does not create any interest in the
property and a licencee is not legally
1474 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to maintain a suit for possession
against the grantor. (Para 17)

D. The respondent was a licensee, and he
must be deemed to be always a licensee.
It is not open to him during subsistence
of the licence or in the suit for recovery of
possession of the property instituted
after the revocation of the licence to set
up title to the property in himself or
anyone else. It is his plain duty to
surrender possession of the property as a
licensee and seek his remedy separately
in case he has acquired title to the
property
subsequently
through
some
other person. (Para 37)

Second Appeal dismissed. (E-6)

List of cases cited: -

## Text

_Characters 0–39,923 of 50,186. This is a partial read: ask again with offset=39923 for what follows._

1 All. Smt. Shashi Bala Vs. Rajendrapal Singh
1473
kept quiet and now for the first time, this
issue has been raised. Thus we are of the
considered
opinion
that
Plaintiff
is
estopped from raising this plea.

23. In the light of law laid down by Apex
Court and the facts of case, the following
undisputed position emerges. Appellant has left her
matrimonial
home
on
28.02.2004.
From
28.02.2004 till today, i.e. for more than fifteen years
parties, they have been living in isolation. There is
no evidence on record that Plaintiff made any
attempt for restitution of conjugal rights. There is
also no evidence showing action taken by Plaintiff
in discharge of his moral and legal obligations
towards his wife i.e. Appellant and minor children.
Court below has recorded conclusive finding that it
is Plaintiff who has committed physical / mental
'cruelty' upon Appellant and not vice-versa. In view
of aforesaid findings, it cannot be said that Appellant
has 'deserted' Plaintiff and that too without any
reasonable cause. On the contrary, she has been
forced to leave her matrimonial home.

24. In the aforesaid backdrop, we are
unable to uphold impugned judgement and
decree passed by Court below. The appeal
succeeds
and
is
allowed.
Impugned
judgement dated 13.03.2015 and decree dated
27.03.2015 passed by Principal Judge, Family
Court, Ghaziabad in Suit No. 367 of 2005 (Sri
Rajendra Pal Singh Vs. Smt. Shashi Bala) are
hereby set aside. Aforesaid suit filed by
Plaintiff shall stand dismissed.

25. Considering the facts and
circumstances of case, we quantify the
cost at Rs.2 Lakhs to be paid by Plaintiff
to Appellant within a period of one month
from today by means of an account payee
draft drawn in favour of Appellant, failing
which, Court below shall proceed to
recover same as if it is recovery pursuant
to an order passed by Court below itself.
----------
(2020)1ILR 1472

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2020

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Second Appeal No. 1045 of 2019

Dharmendra Yadav ...Appellant
Versus
Girish Kumar Sahni ...Respondent

Counsel for the Appellant:
Sri Manish Goyal, Sri Nikhil Mishra

Counsel for the Respondent:
Sri Sunil Dutt Kautilya, Sri H.N. Singh, Sri
Vineet Kumar Singh

A. Licence cannot be revoked, if the
licencee acting upon the licence had
executed a work of permanent character
as contemplated by section 60(b) of the
Easement Act. (Para 26)

B. Code of Civil Procedure, 1908 - Section
100
-
challenge
to-decree
of
suitappellant was in possession of the shop
as licencee-nature of licence whether
revocable or irrevocable was in issue
before the appellate court-fixture on the
wall of disputed shop is not at all an
improvement of permanent character-no
material on record to show that any
construction was made inside the shopraising of wall or removal of existing wall
may not amount to permanent structurethus, licence in favour of appellant
remains of revocable nature-conclusion
arrived at by the lower appellate court is
legally sustainable. (Para 12 to 17, 31 to 42)

C. Licence is merely for the use of the
licensed property by the grantee and it
does not create any interest in the
property and a licencee is not legally
1474 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to maintain a suit for possession
against the grantor. (Para 17)

D. The respondent was a licensee, and he
must be deemed to be always a licensee.
It is not open to him during subsistence
of the licence or in the suit for recovery of
possession of the property instituted
after the revocation of the licence to set
up title to the property in himself or
anyone else. It is his plain duty to
surrender possession of the property as a
licensee and seek his remedy separately
in case he has acquired title to the
property
subsequently
through
some
other person. (Para 37)

Second Appeal dismissed. (E-6)

List of cases cited: -

1. Hero Vinoth (minor) Vs. Seshamal (2006) 5
SCC 545

2. Himmatrao Marotrao Dhobale Vs. Arun
Gulabrao Jichkar 2014 SCC On Line Bom 1252
Bhagwati Prasad Vs. Shri Chandramouli AIR
1966 SC 735

3. Mool Chand Bakhuru Vs. Rohan (2002) 2
SCC 612

4. Nathulal Vs. Phoolchand (1969) 3 SCC 120

5. Sardar Govindrao Mahadik Vs. Devi Sahai
(1982) 1 SCC 237

6. Venkatalal G. Pittie Vs. Bright Bros (Pvt) Ltd.,
AIR 1987 SC 1939

7. Surya Properties Pvt. Ltd. Vs. Vimalendu
Nath Sarkar, AIR 1964 CAL 1

8. Leena Roy Choudhary Vs. Indumati Bose,
AIR 1980 Patna 120

9. Amjad Khan Vs. Shafiuddin AIR 1925 All 203

10. Sitara Shahjahan Begam Vs. Munna AIR
1927 All 342

11. Manzoor Ahamad Vs. Muhammad Abdul
Jamil AIR 1933 All 842
12. Ram Sarup Gupta Vs. Bishun Narain Inter
College (1987) 2 SCC 555

13. Shanker Gopinath Apte Vs. Gangabai
Hariharrao Patwardhan AIR 1976 SC 2506

14. Sant Lal Jain Vs. Avtar Singh AIR 1985 SC
857

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri Manish Goyal, Senior
Advocate assisted by Shri Nikhil Mishra,
learned counsel for the appellant and Shri
H.N Singh, Senior Advocate assisted by
Shri Vineet Kumar Singh, learned counsel
for the respondent.

2. This second appeal has been filed
by
defendant-appellant
Dharmendra
Yadav against the judgement and decree
dated 21.09.2019 passed by Additional
District Judge, Court No. 2, Allahabad in
Civil Appeal No. 109 of 2018 arising out
from Original Suit no. 1095 of 2011
between both the parties by which the
learned Additional District Judge, Court
No. 2, Allahabad has partly reversed the
impugned judgement of the learned trial
court in Original Suit No. 1095 of 2011
passed on 20.09.2018 by which Civil
Judge (SD), Allahabad and has decreed the
suit in toto.

3. From the perusal of the record
attached with this second appeal, it
appears that the civil suit no. 1095 of 2011
was filed by the respondent Girish Kumar
Sahini (plaintiff in the suit) against the
appellant Dharmendra Yadav (defendant
in the suit) for mandatory injunction in
respect of disputed shop no. 3, Bahuguna
Market, Allahabad, alleging that the
plaintiff purchased the said disputed shop
on
27.03.2003
from
Allahabad
1 All. Dharmendra Yadav Vs. Girish Kumar Sahni
1475
Development Authority by a registered
sale deed. On or around 01.05.2003, the
defendant gave a proposal for purchasing
the disputed shop on payment of Rs.
4,50,000/- and also promised to get the
sale deed executed within 6 months after
paying the sale amount. Relationship
between the parties was cordial and the
defendant requested the plaintiff to give
him the disputed shop on licence. Because
of
cordial
relationship
and on
the
assurance of defendant, he gave the shop
to the defendant on his request on licence.
The defendant, however, neither made the
payment of sale amount to the plaintiff nor
he took any step for execution of the sale
deed. Realizing the dishonest intention of
the defendant, in December 2006, the
plaintiff refused to sell the said shop to
him and asked him to vacate the shop and
demanded
Rs.
4,500/-
monthly
as
damages. Defendants' brother Rakesh
Yadav had purchased the shop no. 4 of
Bahuguna Market and the defendant
without any permission of the plaintiff
demolished the intervening wall existed
between shop no. 3 and 4 and converted
the same into one shop. The plaintiff gave
notice
to
defendant
on
02.09.2011
revoking the licence and asking the
possession of the said disputed shop with a
monthly damage at the rate of Rs. 4,500/-.
The defendant did not deliver back the
possession of the shop nor paid the
damage. Hence, the suit was filed by the
plaintiff.

4. The defendant in his written
statement denied the allegations of the
plaintiff and stated that the plaintiff
entered into an agreement to sell the
disputed
shop
to
defendant
on
a
consideration of Rs. 4,50,000/- and the
same was paid by the defendant and
thereafter the plaintiff delivered the
possession of the shop. The plaintiff is
bound to execute the sale deed of the
disputed shop on the basis of the said
agreement to sale. After getting possession
of the disputed shop, the defendant made a
lot of development and spent enough
money on the disputed shop and renovated
it for the purpose of business. He was
never a licensee nor the possession was
delivered to him as licensee and the
plaintiff took the whole amount and gave
him the shop. The defendant was always
ready and prepared to get the sale deed
executed. It was agreed between them that
the defendant or his brother Rakesh would
make the payment of Rs. 4,50,000/- to
plaintiff and the plaintiff after purchasing
the
disputed
shop
from
Allahabad
Development Authority will execute sale
deed in favour of defendant. In pursuance
of the said contract, the defendant paid Rs.
80,000/- by account payee cheque drawn
on Oriental Bank of Commerce dated
01.02.2003. The remaining amount of Rs.
3,70,000/-was paid in cash on 01.05.2003.
Raising legal pleas of Section 41 of
Special Relief Act, Order 7 Rule 11(D)
C.P.C., the defendant has stated that the
plaintiff is not entitled for any relief. The
defendant has given adequate reply in
response to the notice of the plaintiff dated
02.09.2011. Shop no. 2, 3 and 4 of the
Bahuguna Market are situated in a row and
above
these
shops,
residential
accommodation is situated and the same has
been allotted by the Allahabad Development
Authority. Shop no. 2 is allotted to defendant
and shop no. 4 is allotted to his brother
Rakesh Yadav and shop no. 3 (disputed) is
allotted to plaintiff. The plaintiff is not
entitled to get back the possession over the
disputed shop. The defendant has a joint
family with joint business and shop no. 3 is
run jointly by him and his brother Rakesh
Yadav.
1476 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Replication has been filed by the
plaintiff in which the earlier allegations of
the plaint has been repeated and it has
been alleged that the defendant is bound to
vacate the disputed shop and the payment
of Rs. 80,000/- made by Rakesh Yadav
has no connection with the disputed shop.

6. The learned court below framed
the following issues:-

1. Whether Rs. 4,50,000/- has
not been paid to the plaintiff by the
defendant as per agreement

2. Whether the possession of
disputed shop no. 3, Bahuguna Market,
Allahabad has been given to the defendant
by the plaintiff as licensee as alleged in
para 4 of the plaint? If yes whether
defendant is in possession over disputed
shop no. 3 as licensee?

3. Whether the defendant has
removed middle wall situated between
disputed shop no. 3 and shop no. 4 as alleged
in para 4 of the plaint and both has been
amalgamated? If yes whether the plaintiff is
entitled to get restored status quo ante?

4. Whether the alleged license
given to the defendant has been revoked by
the
plaintiff
through
notice
dated
02.09.2011? If yes then effect?

5. Whether defendant has not
handed over the possession of the disputed
shop in compliance of the notice to the
plaintiff? If yes whether the plaintiff is
entitled to get possession of the disputed
shop no. 3?

6. Whether the plaintiff is
entitled to get Rs. 4,500/- per month from
the
defendant
from
18.10.2008
to
18.02.2011, total Rs. 1,62,000/- as use of
the shop and compensation and Rs. 2,275/-
as expenses of notice total Rs. 1,64,275/-?

7. Whether the plaintiff is
entitled to get Rs. 200 per day as uses of
the disputed shop from the defendant as
compensation?

8. Whether suit is barred by
order 7 rule (11D) of the Civil Procedure
Code as alleged in para 12 of the written
statement?

9. Whether suit is under valued?

10. Whether the court fee paid is
insufficient?

11. Whether the plaintiff is
entitled to get any relief?

7. Evidence was given from both the
sides by way of oral evidence and
documentary evidence.

8. After hearing both the sides the
learned Civil Judge (SD), Allahabad by his
judgement
dated
20.09.2018
partly
decreed the suit of plaintiff for necessary
expenses against water tax, house tax,
property tax with 9% simple interest per
annum till the continuation of the licence.
For
remaining
relief
the
suit
was
dismissed.

9. Against this judgement, the appeal
was filed by the plaintiff numbered as
Civil Appeal No. 109 of 2018 which was
decided by the impugned judgement of
Additional District Judge, Court No. 2,
Allahabad vide judgement and order dated
21.09.2019. by which the appeal has been
allowed and the suit of the plaintiff has
been decreed with the direction to the
defendant to restore the previous status of
the disputed shop and hand over the
possession within 30 days. Defendant has
been also directed to pay Rs. 4,500/- per
month to the plaintiff as damage for use
and occupation from the date of service of
notice i.e. 03.09.2011 till he does not
vacate the disputed shop. It has also been
directed that if the defendant fails to
comply, the plaintiff shall be at liberty to
1 All. Dharmendra Yadav Vs. Girish Kumar Sahni
1477
get restored the possession of the disputed
shop and realize the damages according to
law.

10. Aggrieved by the judgement of
the first appeal this second appeal has been
filed.

11. The appellant has raised
following substantial question of law in
this second appeal:

1.
Whether
the
plaintiffrespondent was entitled to the equitable
remedy in form of a decree of mandatory
injunction having approached the court
with
unclean
hands
by
deliberately
concealing the fact that he was not entitled
to enter into any agreement in relation to
the property in dispute without prior
approval
of
Allahabad
Development
Authority?

2. Whether the suit filed by the
plaintiff-respondent was liable to be
dismissed being vague as the plaint did not
disclose the nature or terms of the licence
alleged to have been granted to the
defendant-appellant?

3. Whether the findings of the
lower Appellate Court are perverse in as
much as it ignored the statement of the
witnesses and misread the statement of the
witness of defendant and also did not
notice
the
cross-examination
of
the
plaintiff and further went beyond the
pleadings and misplaced itself by placing
undue
reliance
upon
inapplicable
provisions of the Transfer of Property Act,
1882, Indian Contract Act, 1872 and The
Indian Easement Act, 1882?

4. Whether the lower appellate
court erred in holding that the defendantappellant is not entitled to claim benefit of
Section 60(b) of the Indian Easements Act,
1882 without reversing the categorical
finding arrived at by the learned trial curt
holding that the conditions prescribed
under Section 60(b) of the Act were met by
the defendant-appellant?

5. Whether the lower appellate
court was justified in setting aside the
finding of trial court without setting out
the reasons as per the law laid down by
the Hon'ble Supreme Court in the case of
Sarju Pershad v. Jwaleshwari Pratap
Narain Singh (reported in AIR 1951 SC
120)?

12. The learned senior advocate for
the appellant has referred to the judgement
in Hero Vinoth (minor) v Seshamal
(2006) 5 SCC 545 in order to show the
meaning of 'substantial question of law'
which is a pre-condition for exercising the
jurisdiction of second appeal. There, the
Supreme Court has laid down:

"A question of law having a
material bearing on the decision of the
case (that is, a question, answer to which
affects the rights of parties to the suit) will
be a substantial question of law, if it is not
covered by any specific provisions of law
or settled legal principle emerging from
binding precedents, and, involves a
debatable legal issue. The question of law
raised will not be considered as a
substantial question of law, if it stands
already decided by a larger Bench of the
High Court concerned or by the Privy
Council or by the Federal Court or by the
Supreme Court. A substantial question of
law will also arise in a contrary situation,
where the legal position is clear, either on
account of express provision of law or
binding precedent, but the court below has
decided the matter, either ignoring or
acting contrary to such legal principle. In
second type of cases, the substantial
question of law arises not because the law
1478 INDIAN LAW REPORTS ALLAHABAD SERIES
is debatable, but because the decision
rendered on a material question, violates
the settled position of law."

13. The learned Senior Advocate for
the appellant has argued that the plaintiff
filed a suit for mandatory injunction which
is an equitable relief and for that relief the
plaintiff was legally expected to come with
clean hands. The suit premises was
allotted to the plaintiff by ADA and in the
allotment letter it is a condition that for a
period of 5 years, he would not transfer the
shop. He accepted payment from the
defendant,
concealing
the
terms
of
allotment, and transferred the shop to the
defendant. The learned lower appellate
court completely ignored this fact and
committed error in giving relief to the
plaintiff.

14. There is no dispute with regards
to the terms of allotment. But, it is not
admitted by the plaintiff that he entered
into an agreement to sell out the alleged
shop to the defendant and for that he took
the total consideration amount. The
learned appellate court has found that it
was not correct that any agreement to sale
was executed by the plaintiff in favour of
the defendant. Presumption could also be
not raised as a contract to sale for
immovable property is required to be in
writing and it should be registered. There
is no contract in writing and as such there
is no question of registration. Therefore,
oral agreement to sell immovable property
is not enforceable at law nor the same can
create any right in respect of the disputed
shop in favour of the defendant. Therefore,
this argument is of no avail as there is no
transfer of the shop and no agreement to
sell was ever executed by the plaintiff. A
finding to that affect has been given by
both the courts below and that finding,
being a finding of fact, has become final
and cannot be interfered in second appeal.
There is yet another reason to render the
submission of the appellant-defendant
baseless as the defendant himself has
alleged that shops no. 2,3 and 4 are
situated in a row and are constructed by
ADA. Out of these 3 shops, shop no.2 has
been allotted to the defendant and shop no.
4 has been allotted to his brother. Shop no.
3 has been allotted to the plaintiff. The
defendant claims that his family is joint. In
such situation, when two adjacent shops
are allotted to him and his brother, it can
be presumed that he must be having full
knowledge of that condition in the
allotment letter. As such he cannot be
permitted to say that the plaintiff did not
inform him about the aforesaid condition
and he was misled by the plaintiff.

15. Another argument is that the
learned lower appellate court reversed the
finding of the trial court without assigning
reasons for setting aside the findings and it
raises substantial question of law. The
learned appellate court overlooked the fact
that the trial court has greater opportunity
of appreciating the oral evidence and the
lower appellate court should be very slow
in differing with the conclusion of the trial
court unless the finding arrived at by the
learned trial court is wholly improbable.
From the perusal of the record attached
and the judgements of the two courts
below, it is clear that the learned trial court
concluded that the appellant-defendant
was in possession of the shop as licensee
and that finding of fact was never
challenged in the first appeal and the same
became final. The only issue before the
appellate court was with regards to the
nature of licence whether revocable or
irrevocable. Therefore, that part of the
argument has no force that the lower
1 All. Dharmendra Yadav Vs. Girish Kumar Sahni
1479
appellate court did not give finding
determining the status of appellantdefendant.

16. It has been also submitted that
the plaint of the plaintiff was vague as he
did not disclose the terms of licence. For
two reasons this argument lacks merit.
Firstly, the definition of 'license' itself. The
term 'license' has been defined in section
52 of the Easement Act defines license as
follows:

"52. "license" defined- Where
one person grants to another, or to a
definite number of other persons, a right to
do, or 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."

17. It is not necessary that for the
purpose of creation of license any
instrument be written and the grant of
license may be express or implied as
provided by section 54 of the Act. The
learned trial court on the basis of evidence
on record recorded the finding that the
defendant was in possession of the
disputed shop on the basis of implied
license. License, therefore, is merely for
the use of the licensed property by the
grantee and it does not create any interest
in the property and a licensee is not legally
entitled to maintain a suit for possession
against the grantor. There was an oral
understanding between both that within six
months a sale deed will be executed on
payment of consideration amount and it
has come in the statement of the plaintiff
that for this six months, the plaintiff gave
the disputed shop on license because of
cordial relationship and on the request of
the defendant. Moreover, the license is in
respect of a shop and therefore, the use
thereof is limited for that purpose by
necessary implication. In a case of implied
license, it is not possible to spell out the
terms and conditions of the license except
that the same was given to the licensee on
his request for use the same as a shop.
Therefore, I do not find any force in this
argument.

18. The learned counsel to the
appellant-defendant has further argued that
the learned lower appellate court pointed
out that once the learned trial court
reached to finding that the defendant is a
licensee, on the basis of oral agreement,
made out a third case of irrevocable
licence in favour of the defendant,
whereas, the defendant never pleaded
himself to be licensee, and dismissed the
suit so far as relief of eviction and
possession is concerned. The submission
of the learned counsel is that he was in
possession of the disputed shop on the
basis of the agreement between the parties
and not on the basis of any license granted
by the plaintiff and therefore, he was
wrongly considered to be a licensee and as
such the court below committed an error in
arriving at the conclusion of license.

19. In Himmatrao Marotrao
Dhobale v Arun Gulabrao Jichkar 2014
SCC On Line Bom 1252, as referred by
the learned senior advocate for the
respondent-plaintiff
to
contradict
the
argument advanced from the side of the
appellant-defendant, there was pleading of
plaintiff that the defendant is a licensee of
the suit plot which was denied by the
defendant who stated that he offered to
purchase the suit land but the plaintiff
avoided and later on in the knowledge of
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff, he constructed a house
thereon. A plea of estoppal was taken. The
same was rejected and the trial court
concluded on the basis of evidence on
record that the plaintiff proved the
defendant to be licensee and the defendant
cannot be denied the benefit of section
60(b) of the Easement Act on the ground
that he denied himself to be licensee. Once
it is found that despite deficiency in the
pleadings, the parties knew the case and
proceeded to trial on those issues by
producing evidence, it would not be open
to a party to raise the question of absence
of
pleading
in
appeal.
To
further
authenticate this view, the judgement in
Bhagwati Prasad v Shri Chandramouli
AIR 1966 SC 735 may be referred.

20. In view of above discussion, even if
the appellant-defendant did not plead himself
to be licensee, he rather denied that he is a
licensee of the disputed shop, once a finding
was reached that he was a licensee in the
disputed shop and that finding of the trial
court was not disturbed by the learned lower
appellate court, section 60 (b) of the
Easement Act became applicable.

21. So far as the argument with
regard to the oral agreement is concerned,
the law is settled that oral agreement to
sell immovable property has no legal
affect and is not admissible in evidence
altogether. In Mool Chand Bakhuru v
Rohan (2002) 2 SCC 612, the issue before
the Court was whether a person, claiming
to be a proposed vendee, can protect his
possession of an immovable property on
the plea of part performance under section
53-A of the Transfer of Property Act on
the basis of an oral agreement, the terms of
which have not been reduced in writing?
Section 53-A of the Transfer of Property
Act reads as follows:

"53A.
Part
performance.-
Where any person contracts to transfer for
consideration any immovable property by
writing signed by him or on his behalf
from which the terms necessary to
constitute the transfer can be ascertained
with
reasonable
certainty,
and
the
transferee has, in part performance of the
contract, taken possession of the property
or any part thereof, or the transferee,
being already in possession, continues in
possession in part performance of the
contract and has done some work in
furtherance of the contract, and the
transferee has performed or is willing to
perform his part of the contract, then,
notwithstanding that where there is an
instrument of transfer, that the transfer
has not been completed in the manner
prescribed therefor by the law for the time
being in force, the transferor or any
person claiming under him shall be
debarred from enforcing against the
transferee and persons claiming under him
any right in respect of property of which
the transferee has taken or continued in
possession, other than a right expressly
provided by the terms of the contract:
provided that nothing in this section shall
affect the rights of a transferee for
consideration who has no notice of the
contract or part-performance thereof."

22. It is clear from the above
provision itself that in order to attract the
said provision, there should be an
agreement to transfer immovable property
for consideration and it should be in
writing and signed by the transferor
coupled with delivery of possession of
such property and the vendee cannot
protect his possession on the basis of an
oral agreement. This view finds support
from the judgement in Nathulal v
Phoolchand (1969) 3 SCC 120 and
1 All. Dharmendra Yadav Vs. Girish Kumar Sahni
1481
Sardar Govindrao Mahadik v Devi
Sahai (1982) 1 SCC 237. In Mool Chand
Bakhuru (supra), there was no agreement
in writing and only letters of the vendor
were brought on record in which he had
shown
his
willingness
to
sell
his
immovable property. The Supreme Court
remarked:

"At the most it is an admission of
an oral agreement to sell and not a written
agreement. Statutorily, the emphasis is not
on a written agreement only. In addition,
the emphasis is on the terms of the
agreement
as
well
which
can
be
ascertained with reasonable certainty from
the written document. There was no
meeting of minds. Admission made by
Mool Chand of an oral agreement to sell
does not spell out the other essential terms
of the agreement to sell such as the time
frame within which the sale deed was to be
executed and as to who would pay the
registration charges etc. the letters written
by Mool Chand cannot be taken to be an
agreement to sell within the meaning of
Section 53A spelling out the terms of an
agreement for sale."

23. In the case in hand, the learned
trial court, after taking into consideration
the evidence on record, arrived at the
conclusion that there was no written
agreement to sell of the disputed shop
executed between the parties. This finding
of fact was never challenged by the
appellant by filing any appeal and
therefore, that finding of fact became final
and that cannot be subjected to scrutiny in
the second appeal. Consequently, it is also
not relevant what money was advanced
and by whom, by the appellant or his
brother. The learned trial court also gave
finding that the appellant-defendant was a
licensee in the disputed shop and that has
also not been challenged by the defendant
by filing any appeal against that finding
and therefore, that finding of fact also
became final and the same cannot be put to
scrutiny in this second appeal. Therefore,
the dispute involved a limited question of
revocability of the licence in view of
section 60(b) of the Easement Act.

24. The learned trial court held that
the possession of the defendant over the
disputed shop was based on implied
licence and because the plaintiff failed to
establish terms of licence and the notice
for revocation was ineffective as the
possession was delivered on the basis of
oral
agreement
and
the
agreement
continued between the parties and also that
the defendant had removed the intervening
wall between the disputed shop and the
other shop, the licence was neither
revoked nor was revocable.

25. The lower appellate court,
however, concluded that once it is found
that there was no agreement in writing, the
defendant could not protect his possession
on the basis of oral agreement if any and
the provision of section 53A of the
Transfer of Property Act could not be
attracted. This finding was based on the
settled position of law in view of the
judgements in Nathulal (supra) Sardar
Govindrao Mahadik (supra) and Mool
Chand Bakhuru (supra). Further, the
learned lower appellate court concluded on
the basis of joint reading of sections 2(d),
2(g), 2(h), 8, 31 and 39 of the Indian
Contract Act, sections 5, 9, 53A, 54 and 49
of the Transfer of Property Act and section
17 of the Indian Registration Act and
several judgements that a contract for sale
of immovable property is required to be
not only in writing but also the same is
required to be registered, otherwise, the
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
same will have no legal effect and will not
be enforced in a court of law and the same
shall not be admissible in evidence except
in a suit for specific performance of a
contract or as evidence of any collateral
transaction not required to be affected by
registered instrument. It was further held
by the learned lower appellate court that a
licence does not create a right or interest in
the property and the licensee is not legally
entitled to a notice to quit before eviction,
even then, the plaintiff served a legal
notice dated 2.9.2011 revoking the licence
and to vacate and deliver the possession of
the shop after restoring the intervening
shop status quo anti before filing of the
suit. After service of this notice, the
defendant was legally expected to vacate
and deliver back the possession of the
disputed shop.

26. As pointed out earlier in this
judgement, the moment it was held
concurrently by both the courts below that
the appellant-defendant was a licensee in
the disputed shop, the issue of revocability
of the license ought to be determined
whether the defendant denied or accepted
the plea of license or not. Section 60 of the
Easement Act reads as follows:

"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."

27. The very provision of section 60
shows that license is revocable in the first
case when coupled with transfer of the
property which is subject matter of such
license. Needless to mention that transfer
means a transfer which is legally effected
and enforceable within the provisions of
the Indian Contract Act read with the
Transfer of Property Act and the Indian
Registration Act. Therefore, in the facts of
this case section 60(a) is not applicable. In
this case the provision of section 60(b) has
been sought to be applied from the side of
the appellant-defendant which relates to
the execution of work of permanent
character in the disputed shop.

28. The submission of the learned
counsel for the appellant is that the learned
trial court after considering the pleadings
and evidence on record, gave a categorical
finding that the licence in favour of the
appellant-defendant
had
become
irrevocable
because
of
permanent
construction
made
therein.
Another
argument which has been advanced by the
appellant is that after taking disputed shop
from the plaintiff, he made development of
permanent nature in the said shop. He has
submitted that plaintiff respondent has
himself admitted this fact. Moreover, the
defendant-appellant has made categorical
pleading
and
has
tendered
positive
evidence to show that construction of
permanent nature was made in the
disputed shop. This fact has not been
controverted by the plaintiff respondent,
either in pleading or in evidence.

29. Learned counsel to the appellant
has also submitted that in order to
determine the nature of construction,
whether it is permanent or temporary, the
nature of the constructed structure and the
intention with which it was made, is
relevant factor. Evidence on record clearly
indicates
that
the
construction
of
permanent nature has been made in the
shop with the intention of using the same
1 All. Dharmendra Yadav Vs. Girish Kumar Sahni
1483
for a long period. It has been further
submitted that the learned trial court, after
considering the pleadings and evidence of
the parties gave a finding that the
defendant-appellant made construction of
permanent nature in the disputed shop but,
the learned appellate court has ignored this
fact and has even not considered this
aspect. Admittedly, the wall between the
two shops was removed in order to make
the same a single showroom and this
shows
that
the disputed
shop
was
materially
altered
and
permanent
construction
was
raised
which
is
continuing since the year 2003. In support
of this contention, the learned counsel has
taken reference of the judgement in
Venkatalal G. Pittie v Bright Bros (Pvt)
Ltd., AIR 1987 SC 1939. He has also
referred two other judgements on this
aspect of two different High Courts in
Surya Properties Pvt. Ltd. v Vimalendu
Nath Sarkar, AIR 1964 CAL 1 and
Leena Roy Choudhary v Indumati Bose,
AIR 1980 Patna 120

30. In Venkatalal (supra), the
Supreme Court has discussed the principle
for
determination
of
a
permanent
construction. A perusal of the facts of the
case shows that the suit was filed for
arrears of rent and vacation of the tenanted
premises on the basis of unauthorized
construction of permanent nature, damage
to wall and floor. A suit was also filed for
removal of the unauthorized construction
and to restore the suit premises in its
original condition. The Supreme Court
held that the court has to come to the
conclusion regarding work of permanent
character on the examination of the nature
of structure, the nature of the duration of
structure,
the
annexation
and
other
relevant
factors
for
erecting
the
constructions by the tenant on the demised
premises and the mere fact that a different
view can be taken by the trial court, the
appellate court cannot interfere with such
finding. It is very much clear from the
perusal of the said judgement that on fact,
judgement was delivered in a very
different scenario and there was not much
dispute with regard to the fact that
permanent construction was raised by the
tenant which included new and permanent
flooring, tenant had sunk in pillars and
stanchions into the flooring for the support
of cabins and several rooms, therefore, the
learned trial court came to the conclusion
that the cabin lofts and pillars supporting
the same were attached to the flooring as
well as to the walls and columns of the
made structure, therefore, it was found to
be a permanent structure. In my view,
Venkatalal (supra) has been decided on
different facts as it was found that
construction of permanent nature was
erected by the tenant. In the case in hand
before this Court, except removal of
intervening wall and some fixture, there is
no construction made as such by the
appellant-defendant inside the disputed
shop.

31. In Surya Properties (supra), as
referred in Leena Roy Choudhary
(supra)
while
defining
'permanent
structure',
the
Calcutta
High
Court
remarked
that
'structure'
must
be
distinguished from the words like 'fixture'
and it means something constructed as
'building.' The Court held,

"......in
deciding
whether
a
construction is permanent or temporary
two factors are of primary importance
namely, the nature of structure and the
intention with which it is made. If the
nature of the structure is such that the
structure will endure for a long time, i.e.
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
so long as the tenant expects to remain
there as a lessee, and the intention of the
lessee in constructing the structure is that
he shall use it as long as he remains a
lessee, the construction will be regarded
as a 'permanent construction' within the
meaning of S. 108(p) of the T.P. Act even
though the consideration may be capable
of removal without causing permanent
damage to the leased premises."

32. In Leena Roy Choudhary
(supra), the issue of breach of terms of
tenancy was involved as the appellant had
constructed without permission of the
landlord a kitchen of brick wall on open
terrace demolishing side walls of the old
kitchen and also made unauthorized
alteration in the stair case and varandah.
The
first
appellate
court
held
this
construction and demolition to be material
alteration in the tenanted portion and
directed for eviction of the tenant. The
second appeal against this decision was
dismissed by the High Court. Needless to
mention here that all the above referred
cases
were
factually
different
as
admittedly permanent construction was
found to have been raised.

33. Reference has been also taken of
the two judgements of this court in Amjad
Khan v Shafiuddin AIR 1925 All 203
and Sitara Shahjahan Begam v Munna
AIR 1927 All 342, the first relating to
licensee and the other was a case of lessee
and
in
both
the
cases
permanent
construction was admittedly raised and
therefore, no benefit would result to the
appellant-defendant in the facts of the case
in hand except that in the first case, the
legal position has been reiterated that a
license cannot be revoked, if the licensee
acting upon the license had executed a
work of a permanent character. The same
view has been further affirmed in
Manzoor Ahamad v Muhammad Abdul
Jamil AIR 1933 All 842.

34. In Ram Sarup Gupta v Bishun
Narain Inter College (1987) 2 SCC 555,
a building and attached open land was
leased and the same was converted into a
licence in order to facilitate the recognition
of the school. Thereafter, the grantor
revoked the licence and asked to vacate
and deliver possession. It was found that to
meet the needs of school, permanent
construction was raised on open land. The
trial court dismissed the suit and the same
was affirmed by the High Court. Matter
reached to the Supreme Court. Keeping in
view that the licence was granted to school
of the building and attached open land for
the purpose of imparting education, the
Court dismissed the appeal and laid down
as under:

"The principle behind section 60
is that if a person allows another to build
on his land in furtherance of the purpose
for which he had granted licence, subject
to any agreement to the contrary, he
cannot turn round later on to revoke the
licence. Section 60 is not exhaustive.