# Sahabal & Ors v. Budhiram & Ors

- **Citation:** (2022) 5 ILRA 1512
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-08
- **Case number:** Second Appeal No. 1468 of 1992
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahabal-ors-v-budhiram-ors-48440
- **Pages:** 16

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act, 1961- Section 49-section Suit for decree
of possession-Plaintiff's title to suit property
accepted by both Courts-cannot be faulted-no
discussion to show case of joint possessionexcept a licence-if on revocation of licencedefendant could be removed from possessionno joint possession may hinder a decree of
exclusive possession passed in favour of
Plaintiff-subject to valid revocation of licencesuit property comprises constructions -raised by
Plaintiff-licensed
to
defendants-suit
maintainable-unaffected by section 60 of Indian
Easements Act-During consolidation operationsno objection about title been raised by
defendants-now defendants precluded from
raising question of title -bar u/s 49 of U.P.C.H.
Act.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

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(2022)05ILR A1512
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1468 of 1992

Sahabal & Ors. ...Appellants
Versus
Budhiram & Ors. ...Respondents

Counsel for the Appellants:
Sri Faujdar Rai, Sri C.K. Rai

Counsel for the Respondents:
Sri S.L. Yadav, Sri B.B. Paul, Sri Rajendra
Rai, Sri Rajesh Maurya, Sri Shamumul
Hasnain, Sri Sheo Ram Singh

Civil Law - U.P. Consolidation of Holdings
Act, 1961- Section 49-section Suit for decree
of possession-Plaintiff's title to suit property
accepted by both Courts-cannot be faulted-no
discussion to show case of joint possessionexcept a licence-if on revocation of licencedefendant could be removed from possessionno joint possession may hinder a decree of
exclusive possession passed in favour of
Plaintiff-subject to valid revocation of licencesuit property comprises constructions -raised by
Plaintiff-licensed
to
defendants-suit
maintainable-unaffected by section 60 of Indian
Easements Act-During consolidation operationsno objection about title been raised by
defendants-now defendants precluded from
raising question of title -bar u/s 49 of U.P.C.H.
Act.

Appeal dismissed. (E-9)

List of Cases cited:

1. Jai Narain Vs Sri Ram Narain (deceased by L.
R's.) & ors., AIR 1989 All 182

2. Babu Fazal Haq & ors. Vs Lala Data Ram &
anr., AIR 1975 All 373

3. Ramesh Vs Pandurangrao Ratnalikar & ors.,
2006 SCC OnLine Bom 81

4. Dhool Singh Vs Smt. Bardhu Bal & ors., AIR
1974 Raj 90
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendants' second appeal,
arising from a suit for recovery of
possession and mesne profits.

2. Heard learned Counsel for the
appellants and Mr. Rajesh Maurya and Mr.
Sheo
Ram
Singh,
learned
Counsel
appearing on behalf of the respondents.

3. Budhiram, the sole plaintiffrespondent, who is now represented by his
heirs and LRs before this Court, instituted
Original Suit No.627 of 1995 in the exCourt of Munsif, Mohammadabad Gohna,
District Azamgarh against Sahabal and
Ninku, arrayed as the defendants first set,
5 All. Sahabal & Ors. Vs. Budhiram & Ors.
1513
for a decree of possession, directing the
defendants first set to the suit to deliver
possession of a house and underlying land
shown by letters अ ब स द with boundaries
detailed at the foot of the plaint. A further
decree was sought praying that the
defendants first set be directed to pay the
plaintiff mesne profits at the rate of Rs.20/-
per month w.e.f. 10.05.1985 till date of
delivery of actual physical possession of
the suit property.

4. The plaintiff arrayed his brothers,
Muktinath and Dhuppu as defendants
second set or proforma defendants to the
suit, for whose benefit also he instituted the
suit. Later on, by an amendment to the
plaint, Mahavir, a brother of Ninku, was
impleaded as defendant no.5/defendant
third set, against whom also relief was
claimed to the same effect as the
defendants first set.

5. In this appeal, the defendants first
set and third set, that is to say, Sahabal,
Ninku and Mahavir are the appellants. All
three of them had together instituted the
present appeal before this Court, but
pending appeal they have passed away.
They are represented on record by their
heirs and LRs, duly substituted. All the
three defendants-appellants, that is to say,
the original defendants first and third sets
to the suit, now represented by theirs heirs
and LRs, shall hereinafter be referred to as
the defendants, wherever the reference is
made collectively. In case of an individual
reference to any of the original defendantappellant, the concerned party would be
referred to by his name.

6. Budhiram, the plaintiff, who had
instituted the suit, is arrayed to the appeal
as the plaintiff-respondent no.1. He has
passed away pending appeal and is
represented on record by his heirs and LRs.
Likewise, the two brothers of Budhiram, to
wit, Muktinath and Dhuppu, who were
arrayed in the suit as defendants second set
in a proforma capacity, have also passed
away pending appeal. They too are
represented on record by their heirs and
LRs. Budhiram, represented by his heirs
and LRs, shall hereinafter be referred to as
the plaintiff. Muktinath and Dhuppu, who
were the defendants second set or the
proforma defendants to the suit, now
represented by their heirs and LRs, shall
hereinafter be referred to collectively as the
proforma defendants. Both the plaintiff and
the proforma defendants would be referred
to individually by their names, wherever
the context necessitates.

7. According to the plaintiff, Plot No.
276 (formerly numbered as 531) situate at
Village Lado, Tappa Badokhar, Pargana
and Tehsil Sagri, District Azamgarh was
held as a bhumidhari by Basanta, the
plaintiff's and the proforma defendants'
father. Five years prior to the institution of
the suit, Basanta passed away. After his
death, the plaintiff and the proforma
defendants succeeded to his rights as
bhumidhar of the plot aforesaid. They are
bhumidhar in possession of Plot No. 276
(for short "the plot in question") ever since.

8. It is the plaintiff's case that the
plaintiff and the proforma defendants live
way far off from the plot in question and,
therefore,
for
ease
of
farming
and
supervision of crops, they built a temporary
shelter, described in vernacular as Madai.
The site of this temporary construction is
denoted in the map at the foot of the plaint
by letters अ ब स द. It is then said that about
two and a half years ante-dating the
institution of the suit, the plaintiff and the
proforma defendants constructed a kachcha
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
house (for short "the suit property") at the
site and in place of the temporary shelter.
The plaintiff and the proforma defendants
would stay in the suit property and take
care of their crops. It is the plaintiff's
further case that the defendants are natives
of the village and their house is located at a
distance of about 400 yards from the suit
property. The defendants are said to have
represented to the plaintiff and the
proforma defendants that their house had
fallen down and the way it was dangerous
to inhabit. The defendants did not have the
necessary wherewithal at that time to
reconstruct or repair it. They requested the
plaintiff to permit them to use the suit
property until such time that they could get
their own reconstructed. It was also said
that the defendants would vacate the suit
property as soon as their house was
reconstructed/repaired.
The
plaintiff
permitted the defendants use of the suit
property as a licensee on condition that
they would vacate it on the plaintiff's
demand.

9. It is also the plaintiff's case that the
defendants' house has been reconstructed and
on the 10th of May, 1985, the plaintiff asked
the defendants to vacate, but the defendants,
at the instance of inimical elements in the
village, turned dishonest and refused to
vacate. The plaintiff thereupon revoked the
defendants' licence and asked them to vacate.
The defendants did not oblige. According to
the plaintiff, the defendants are trespassers in
the suit property ever since 10.05.1985. The
plaintiff is entitled to recover possession of
the suit property, besides mesne profits from
the defendants w.e.f. 10.05.1985 until
delivery of actual physical possession. It is on
the basis of the aforesaid facts and cause of
action that the suit was instituted on
03.07.1985.

10. The defendants put in a written
statement and contested the plaintiff's
claim. They propounded a pedigree in
support of a case of a co-sharer's right with
the plaintiff and the proforma defendants in
the plot in question. It is the defendants'
case that the plaintiff, the proforma
defendants and the defendants are part of a
joint Hindu family who were living
together. The following pedigree was
pleaded by the defendants in their written
statement:

11. Based on the pedigree aforesaid, it
was pleaded by the defendants that the
plaintiff, the defendants and the proforma
defendants are the descendants of a
common ancestor and constitute a joint
Hindu
family.
It
was
pleaded
that
Bindesari, whose branch the defendants
represent, had gone insane. For the said
reason, after the death of Rajai, Gokul was
recorded as the Karta and after him, Kodai
and Basanta. The defendants trusted Kodai
and Basanta, in both of whom they had
faith. Kodai and Basanta were, therefore,
recorded over the joint family property. It
is
pleaded
further
that
during
the
consolidation operations, the plaintiff had
served as a Chakbandi Lekhpal. The
defendants would trust the plaintiff also
and it was the plaintiff who would take care
5 All. Sahabal & Ors. Vs. Budhiram & Ors.
1515
of records of the family's property and
other business after Basanta's death.

12. The defendants have pleaded that
upon the members of the family increasing
in numbers, Kodai and Basanta set up
home in the residential house and in the
part of the property where the animals were
housed,
described
as
Bardaur,
the
defendants set up residence. In substance, it
was pleaded that growing numbers of the
family were spread out into different parts
of the property, that the joint family held.
After some time, the defendants too set up
separate dwelling. Basanta, finding the
defendants to be short of accommodation,
asked them to utilize the land, comprising
the plot in question, for the purpose of a
living accommodation and also to house
their cattle. The plot in question was close
by to the abadi and the defendants,
therefore, constructed a temporary shelter
thereon, described as Madai, which they
later on, by and by replaced by a kachcha
house with a tiled roof.

13. It is pleaded that the suit property
has no concern with the plaintiff or his
ancestors.
During
the
consolidation
operations, it was pleaded that the chak of
both parties were entered over the plot in
question, which, according to the allotment,
are in their respective possession. It is then
pleaded that the plaintiff and his brothers
too
separated
and
the
plaintiff
and
Muktinath, defendant no.3 to the suit, set
up residence in the house, wherein regular
residential quarters are located. Their cattle
were also housed there. The defendants
stayed in the suit property and in a part of
it, towards the west, the plaintiff and the
proforma defendants kept up storing their
fire-wood in the same manner as they were
doing since long. Dhuppu, defendant no.4
(a proforma defendant) set up separate
residence at the place where the family
would earlier
store their agricultural
implements. All his living and that of his
family were built around that place.

14. Some years earlier, on the northwestern corner of the suit property, where
both parties have their chak, both parties
sunk a private tubewell and at that place,
the plaintiff got his house constructed. The
plaintiff and his children stay in that house.
In the suit property, neither the plaintiff nor
his father ever built a temporary shelter
(Madai). It is denied that the defendants'
house located in the abadi ever collapsed,
so as to require a reconstruction. Much to
the contrary, it is pleaded by the defendants
that their house located in the abadi is still
in existence where it was. The plaintiff
never asked the defendants to vacate the
suit property. It is pleaded that the
plaintiff's intentions went foul during the
consolidation operations, about which the
defendants never had knowledge. The
plaintiff got his father's name entered
exclusively over the chak that comprises
land
coming
down
from
common
ancestors. The defendants got the revenue
records inspected and then came to know
about the fact. Thereupon, the defendants
instituted a suit before the Court of
competent jurisdiction. It was also pleaded
that the plaintiff had no right to institute the
present suit. The suit was time barred. The
suit is barred by estoppel and bad for misjoinder. It is also barred by Section 34 of
the Specific Relief Act, 1963.

15. The plaintiff filed a replica and
pleaded that the defendants never had any
right to or interest in the plot in question or
the suit property. What was particularly
pleaded through the replica is the fact that
the defendants were not at all connected to
the family of the plaintiff and the proforma
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
defendants. The pedigree shown was
denied as false and concocted. It was also
pleaded that Bindesari, the defendants'
ancestor, was not a son of Rajai or a
member of his family. The plaintiff
propounded a pedigree of his family, that
he claimed depicted the correct relationship
between parties in Paragraph No.3 of his
replica. The pedigree pleaded by the
plaintiff is shown below:

16. Mahavir, defendant no.5 and the
original appellant no.3 to the appeal, also filed a
separate written statement dated 04.05.1987,
more or less pleading on the same lines as the
defendants. An additional written statement
dated 22.07.1988 was filed on behalf of the
defendants jointly. A similar additional written
statement, also on behalf of the defendants
jointly, was filed on 18.08.1988. These
pleadings more or less do not add anything
material to the defendants' case.

17. On the pleadings of parties, the Trial
Court framed the following issues (translated
into English from Hindi):

"(1) Whether the plaintiff is entitled
to possession of land and the house denoted by
letters अ ब स द and things attached to it?

(2) Whether the plaintiff is entitled
to mesne profits as claimed in the plaint?

(3) Whether the suit is barred by
time?

(4) Whether the suit is barred by
estoppel?

(5) Whether the suit is bad for
non-joinder of necessary parties?

(6)
Whether
the
suit
is
undervalued and the court-fee insufficient?

(7) Whether the suit is barred by
Section 34 of the Specific Relief Act,
1963?

(8) Whether the suit is barred by
Section 43 of the Code of Civil Procedure,
1908?

(9) Whether the plaintiff is
entitled to any relief?

(10) Whether the suit is bad for
mis-joinder of necessary parties?

(11) Whether the suit is barred by
Section 42 of the Code of Civil Procedure,
1908?"

18. The plaintiff led voluminous
documentary evidence in support of his
title,
including
those
relating
to
proceedings
during
consolidation
operations and the rights recorded during
consolidation. Documents were also filed,
that are very old revenue entries and
extracts of the Family Register. A summary
of documentary evidence led on behalf of
the plaintiff finds a detailed reference in the
judgment of the Lower Appellate Court and
need not be recapitulated. The plaintiff
examined
three
witnesses,
to
wit,
5 All. Sahabal & Ors. Vs. Budhiram & Ors.
1517
Budhiram, PW-1, Katwaru, PW-2 and
Dharamdev, PW-3.

19. The defendants, on the other hand,
also led documentary evidence, a summary
of which is also detailed in the judgment of
the Lower Appellate Court and is not being
reproduced here for the sake of brevity.
The defendants examined two witnesses,
that is to say, Sahabal, DW-1 and Mangali,
DW-2.

20. The issue of valuation was
decided by an order of the Trial Court
made on 18.12.1986, about which there is
no surviving controversy. Issues Nos.3, 4,
7, 8 and 11, all of which are defendants'
issues, were not pressed at the trial and,
therefore, answered in the negative. The
issues of non-joinder of necessary parties
and mis-joinder were also decided in the
negative in favour of the plaintiff and
against the defendants by an order made by
the Trial Court on 15.07.1987.

21. The Trial Court tried the suit
substantially on Issues Nos. 1 and 2 and
decided both in favour of the defendants
and against the plaintiff. It was held by the
Trial Court that the plaintiff's title to the
land, whereon the suit property is located,
is established on the basis of documentary
evidence, but accepted the defendants' case
that the constructions standing thereon
were ones of a permanent character, in
relation to which, their license could not be
revoked, in view of the provisions of
Section 60(b) of the Indian Easements Act,
1882. It is on the said findings that the suit
was dismissed.

22. Aggrieved by the decree of the
Trial Court, the plaintiff instituted Civil
Appeal No.110 of 1989 before the District
Judge of Azamgarh on 28.02.1989. The
said appeal came up for hearing upon
assignment, before the learned Additional
Civil Judge (now equivalent to the Court of
the Civil Judge, Senior Division) on
22.07.1992. The learned Judge allowed the
appeal, reversed the decree of the Trial
Court in part and decreed the plaintiff's
suit, ordering the defendants to deliver
possession of the suit property to the
plaintiff, including the underlying land,
after withdrawing from its possession
within a period of three months. However,
the plaintiff's claim for mesne profits was
dismissed.

23. Aggrieved, this second appeal has
been instituted by the defendants

24. This appeal was admitted to
hearing on 06.11.1992 on the following
substantial questions of law:

(1) Whether the plaintiff could be
granted relief in effect of exclusive
possession in the face of joint possession?

(2) Whether the suit could be
maintainable in view of Section 60 of the
Indian Easements Act, 1882?

(3) Whether an issue about tenure
of land was desirable and if so, whether
there was a mistake of law in not framing
and referring the same to the Revenue
Court under Section 331-A of the U.P. Z.A.
& L.R. Act, 1950?

25. The first substantial question of law
has been raised on the basis of a case that the
suit property was part of a larger holding that
was the property of a Joint Hindu family,
who had lived together without a formal
partition. The defendants have made out
themselves to be members of the Joint Hindu
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
family, of which the highest and relevant
ancestor was Dhonda. The family, according
to them, went into the branches of Gokul and
Bindesari, where the defendants represent the
branch of Bindesari and the plaintiff and the
proforma defendants, the branch of Gokul.
The defendants' case proceeds on the basis
that Bindesari being of unsound mind, it was
the branch of Gokul who served as Karta for
the Joint Hindu Family, that the defendants
say they were. It is the defendants' case that
when Basanta was functioning as the Karta,
he had permitted the defendants to set up
residence for themselves on a part of the plot
in question, in deference to their share in the
joint family property. The defendants' case,
therefore, is that they first built a temporary
shelter, Madai and then a kachcha house on
the bidding of Basanta, no doubt, but in
realization of their right to hold a specific
share in the joint family property that would
come by in case of a formal partition. The
case of the defendants, therefore, is of a preexisting right in the Joint Hindu Family
property belonging to the Joint Hindu family,
of which Dhonda is the progenitor. The
permission given to the defendants by
Basanta is, therefore, not a license to
construct over the suit property. Rather, it is
the defendants' case that the permission was
given in realization of the defendants' right as
a member of the Joint Hindu family to a
specific portion of the property thereof,
bringing about a partition through an oral
family settlement. In effect, therefore, the
defendants plead a case of title to the suit
property, flowing from their status as
members of the joint family in question and a
permission from the Karta thereof, which is
in the nature of a family settlement.

26. By contrast to the defendants'
case, the plaintiff disowns the fact that the
defendants and the plaintiff are in any way
the members of a Joint Hindu Family. He
says that the defendants are in no way
connected by a bloodline to the plaintiff or
the proforma defendants. They are utter
strangers to the plaintiff's family. The plot
in question, as well as the suit property is
owned by the plaintiff and the proforma
defendants that they have inherited from a
common ancestor, Raghunath through
Shivraj, Gokul and Basanta in successive
generations.
Bindesari
is
not
at
all
connected to the plaintiff's family, though a
native of the village. Basanta never
permitted
the
defendants
to
raise
constructions over the suit property. Rather,
it was the plaintiff who permitted the
defendants to use the suit property that had
already been constructed by the plaintiff
and proforma defendants in order to take
care of their crops that stood in the land in
dispute. The plaintiff had constructed the
suit property first as a temporary shelter, a
Madai and then as a kachcha house to look
after their crops, because their house was
located far away from this part of their
agricultural holding. The permission had
been given to the defendants to occupy the
suit property for such period of time that
the defendants needed to reconstruct their
own house located some 400 yards away,
that had fallen down. The permission that
was granted was revoked on 10th of May,
1985 after the defendants' house was
reconstructed. Thus, the defendants are
trespassers in the suit property, after
revocation of their licence by the plaintiff.

27. For the purpose of determination
of the substantial question of law under
consideration, the two Courts below,
particularly the Lower Appellate Court, has
gone into the genealogy of parties to
determine whether the defendants on one
hand, and the plaintiff as well as the
proforma defendants on the other, were
members of a Joint Hindu Family. The
5 All. Sahabal & Ors. Vs. Budhiram & Ors.
1519
question about the ''jointness of possession'
of parties really does not arise on the state
of evidence here. If it did, perhaps, it would
require determination by a competent
Revenue
Court.
Here,
there
is
overwhelming evidence, rather evidence
documentary, that establishes the plaintiff's
claim to the suit property. There is no
documentary evidence to show even a hint
or shadow about the defendants' title to the
suit property. The plaintiff and his
ancestors
have
consistently
remained
recorded over the suit property, since
before the abolition of Zamindari and until
date of the commencement of action. The
Lower Appellate Court has made a
punctilious reference to the various revenue
records, dating back to the year 1940-41,
mentioning the relevant Fasli Year. The
Lower Appellate Court has taken note of
the Bandobast of the year 1349 Fasli,
where the name of Kodai and Basanta, sons
of Gokul, is recorded. Also considered by
the Lower Appellate Court is Khatauni Jild
Bandobast
of
the
year
1308
Fasli
corresponding to the calendar year 19001901. During that period of time, the name
of Rajai, son of Dhonda, was recorded and
in the same document, the name of Gokul
son of Shivraj is also recorded.

28. It has been noted by the Lower
Appellate Court that in none of the record
of rights relating to the land in dispute,
including the suit property, the name of
Bindesari occurs, who is said to be the link
connecting the defendants to the plaintiff's
pedigree. This Court is of opinion that if
truly it were a case where the existence of
the bloodline claimed by the defendants
was necessary to determine the rival claim
of the parties about title to the suit property,
this case might require trial by the
competent Court of revenue jurisdiction,
the land being a bhumidhari. But, no
question of title arises in this case, for the
reason that consolidation operations have
admittedly intervened, where, according to
the defendants, the parties' chaks have been
entered. There is no record from the
consolidation that may show title or
possession of the defendants or a joint
possession for the defendants, a fact found
by both the Courts below and more
eloquently by the Lower Appellate Court. It
is for this reason that so far as title is
concerned, the Trial Court and the Lower
Appellate Court have returned unanimous
findings in favour of the plaintiff and the
proforma
defendants.
The
findings
recorded by the Authorities under the U.P.
Consolidation of Holdings Act, 1961 (for
short "U.P. C.H. Act") about title inter
partes are final and unassailable before any
Court or Authority. If after close of the
consolidation operations, about which there
are CH Form-23 and CH Form-41 on
record, the rights of the defendants are not
recorded over the land in dispute or the suit
property, there is no title dispute that
survives for determination by a Court of
revenue jurisdiction.

29. It must be recorded here that the
judgments of the two Courts below indicate
that
the
defendants
did
go
for
a
determination of their rights to the Revenue
Court and filed a suit under Section 229-B/
176 of the U.P. Z.A. & L.R. Act, being Suit
No.383/413,
which
was
dismissed.
Appellate or Revisional remedies against
the said determination were invoked by the
defendants, but nothing has been brought to
this Court's notice to show that the
defendants succeeded in their endeavour to
establish title to the land in dispute or the
suit property. This Court has also perused
the certified copy of the judgment and
decree dated 31.10.1986 passed by the SubDivisional Officer, Sagri, Azamgarh in Suit
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
No.383/413, under Section 229-B/ 176 of
the U.P. Z.A. & L.R. Act. The suit was
filed by Sahabal, son of Gareeb, Mahavir
and Ninku, the three defendants here,
against Budhiram, Muktinath and Dhuppu,
the plaintiff and the proforma defendants.
The suit related to the defendants' claim for
declaration of title and partition of Gata
No.531 (old) based on the case of a Joint
Hindu Family property, where the property
came down from a common ancestor. The
issues in the suit, amongst others, were
whether the plaintiff and the defendants
were co-sharers in possession of the suit
property and they had a half share. It was
also an issue whether the suit is barred by
Section 49 of the U.P. C.H. Act. The SubDivisional Officer has recorded a finding
that no objection was raised during
consolidation operations by the plaintiffs
(the defendants here) and, therefore, the
suit was barred by Section 49 U.P. C.H.
Act. The Revenue Court has also returned a
finding that it was the defendants to that
suit (who are the plaintiff and the proforma
defendants here) who were recorded over
the suit property. Nothing has been shown
to this Court or noticed by the Courts
below that this judgment of the SubDivisional Officer has been overturned by a
Court of competent jurisdiction in appeal.

30. The plaintiff's title to the suit
property has been accepted by both the
Courts below on the findings and evidence
noticed hereinabove, which cannot be
faulted. There is absolutely no evidence to
show a case of joint possession between the
plaintiff and the defendants, based on a title
properly so called, except a licence.
Therefore, if on the revocation of the
licence, validly made, the defendants could
be removed from possession, there is no
joint possession inferable by any principle
of law for the defendants that may hinder a
decree of exclusive possession being
passed in favour of the plaintiff, of course,
subject to a valid revocation of the licence.

31. In view of the aforesaid
conclusion, Substantial Question of Law
No. (1) is answered in the affirmative in the
terms that exclusive possession can be
granted where joint possession of the party
resisting dispossession is not based on
some kind of a right or title, but a mere
licence, of course, subject to its valid
revocation.

32. The second substantial question of
law
raised
is
whether
the
suit
is
maintainable in view of Section 60 of the
Indian Easements Act. The question
precisely is whether the defendants being in
possession of the suit property as licensees,
where they have raised constructions of a
permanent character, are entitled to resist
revocation of their license, in view of the
provisions of Section 60(b) of the Indian
Easements Act. This substantial question of
law has arisen because of the judgment of
the Trial Court, which held the plaintiff to
be the owner and/ or bhumidhar of the land
in dispute, including the suit property, like
the Lower Appellate Court, but opined that
the defendants had raised constructions
comprising the suit property of a permanent
character in accordance with the licence
given by the plaintiff or his predecessor-intitle.

33. The Lower Appellate Court, on
the second point of determination, that it
has considered, has examined the plaintiff's
case of a license to live in the house
constructed by him on the one hand and the
defendants' case of being given the land by
the plaintiff's predecessor Basanta, pursuant
whereto they had raised construction of a
permanent nature on the other. The Lower
5 All. Sahabal & Ors. Vs. Budhiram & Ors.
1521
Appellate Court has meticulously examined
evidence of witnesses, including the
documentary evidence, particularly the
documents
relating
to
consolidation
proceedings
and
opined
that
if
the
constructions had been raised by the
defendants, acting on the permission given
by
Basanta
before
consolidation
commenced, the suit property and its value
would figure in consolidation proceedings.
The witnesses' testimony about who
actually constructed the suit property was
also considered, particularly that of PW-2,
who has said that he was the contractor
involved in the construction of the suit
property. The said witness has been
believed, together with the documentary
evidence relating to proceedings during
consolidation, by the Lower Appellate
Court to find for a fact that constructions
comprising the suit property were raised by
Budhiram and not the defendants years ago
on a permission given by Basanta. These
are findings of fact recorded after a careful
scrutiny of oral and documentary evidence
and cannot be disturbed by this Court
sitting in second appeal. In fact, the
defendants have spoken about a permission
to raise constructions, that have now
become the suit property, located over the
plot in question, not as licensees but in
acknowledgment
of
their
right
as
coparceners or co-sharers of a Joint Hindu
Family with a permission by Basanta acting
as the Karta. It is perhaps on account of the
fact that the Trial Court has disbelieved the
defendants' case of title to the suit property,
in whatever manner, that the permission
given by Basanta was then examined from
the vantage of Section 60(b) of the Indian
Easements Act.

34. The Trial Court had held for a fact
that it was Basanta who permitted the
defendants to raise constructions over a
part of the plot in question, that is now the
suit property. The Trial Court proceeded to
reason that in the absence of any title with
the defendants being established to the plot
in question or the suit property, the
permission, that Basanta granted, must be
held to be a licence, permitting the
defendants to raise construction of a
permanent character. This finding, for
cogent
reasons
assigned,
has
been
overturned by the Lower Appellate Court,
upon a consideration of relevant evidence,
both documentary and oral. The Lower
Appellate
Court
has
held
that
the
constructions were never raised by the
defendants, but by the plaintiff, and the
defendants were allowed to occupy the suit
property for a short period of time between
August, 1984 and May, 1985, in order to
facilitate the defendants to tide over the
crisis of reconstructing their house that had
actually collapsed.

35.

Learned
Counsel
for
the
defendants, however, has impressed upon
the Court that the provisions of Section
60(b) of the Indian Easements Act forbid
the grantor of a licence from revoking it,
where, acting on the licence, a licensee had
executed a work of a permanent character
and incurred expenses in its execution.
Learned Counsel has placed reliance upon
the decision of this Court in Jai Narain v.
Sri Ram Narain (deceased by L. R's.)
and other, AIR 1989 All 182. The
attention of this Court has been drawn to
Paragraph Nos.7 and 8 of the report in Jai
Narain (supra), that read:

"7. I am unable to agree. A some
what identical situation came up for
consideration before this Court in the case
of Azahar Husain v. Mansab, reported in
1940 All LJ 354 : (AIR 1940 All 324). The
question raised there was whether S.60(b)
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Easements Act could be pressed in
and in respect of that portion of the land
which is left by the licensee unbuilt and
which is used by him as his Sehan Darvaja.
There the licensee had instituted the suit for
restraining the licensor from interfering
with his possession in respect of vacant
piece of land. The learned Judge hearing
the second appeal negatived the contention
of the licensee holding that where a licence
is given to one to build a house on a piece
of land and acting upon that licence, he
builds a house keeping a portion of the land
vacant so that it might be used as sehan
darvaza the license would be irrevocable
under S.60(b) of the Easements Act both in
regard to the site of the house as well as the
piece of land, which is appurtenant thereto.
The ratio was that a person building a
house may legitimately use the land
appurtenant
thereto
for
the
proper
enjoyment of his house provided of course
the licensee built the house in pursuance of
the terms of the license and the site of the
house and the appurtenant land does not
exceed the area in respect to which the
license was granted.

8. That precisely is the situation
obtaining in the present case. With respect,
I find myself in complete agreement with
the ratio of the decision cited above. The
finding in the present case is that the
appurtenant land is being used by the
plaintiff for tethering cattle and other
miscellaneous acts. Further finding is that
this land is part and parcel of the land
which was granted to the plaintiff under the
license. That being so, S.60(b) was
attracted in terms. Lease granted in favour
of the defendant was hence of no avail to
the defendant as against the plaintiff."

36. A perusal of the issue, that fell for
consideration of this Court in Jai Narain,
shows
that
it
was
not
about
the
irrevocability of the licence generally,
where the licensee had been permitted to
raise
constructions
of
a
permanent
character by the licensor. That position
appears to have been undisputed on facts
there. The issue was about a part of the
land given on licence by the Zamindar, that
was not built upon pursuant to the licence,
but remained open. The open portion of the
land was appurtenant to the constructions
that had been erected acting on the licence.
The question, therefore, was whether
Section 60(b) would be attracted to that
portion of the land held on licence, which
the licensee had not utilized to raise
constructions.
It
was
held
that
the
protection of Section 60(b) would extend to
the unbuilt land held on licence, if it were
appurtenant to the land that had been
constructed upon in terms of the licence.

37. This Court is afraid that the
principle in Jai Narain is not at all
attracted to the facts of the present case,
where for a fact, the Lower Appellate Court
has returned an unassailable finding of fact
that
the
suit
property
comprises
constructions that were raised by the
plaintiff and licensed to the defendants as
such. The defendants had never themselves
raised any construction, acting on any
permission or licence, to raise constructions
of a permanent character.

38. The other decision relied upon by
the learned Counsel for the defendants is
Babu Fazal Haq and others v. Lala Data
Ram and another, AIR 1975 All 373. In
Babu Fazal Haq (supra), it was held by
their Lordships of the Division Bench of
this Court, thus:

"22. We have now to consider
whether the said licence was revocable.
5 All. Sahabal & Ors. Vs. Budhiram & Ors.
1523
Section 60 of the Indian Easements Act
provides :

"A licence 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
licence, has executed a work of a
permanent character and incurred expenses
in the execution."

The above section embodies two
exceptions to the general rule that a licence
is revocable. The instant case is covered by
clause (b) of Section 60 which is based on
the principle of estoppel by acquiescence.
When the licensee acting upon a licence
has executed a work of permanent
character and incurred expenses in the
execution the licence cannot be revoked by
the grantor. The man who stands by and
allows another person to build on his land,
in the belief that he has power or authority
to do so, and incurs expenses in such
building, cannot turn round and claim the
removal of such building on the ground that
the latter had no authority to build. He is
estopped by his conduct from adopting that
course and the law will presume an
authority from him in such cases. In the
instant case we find from the own
admission of the plaintiff that within a few
days after obtaining his permission the
defendants raised the constructions over the
disputed land and they established their
factory by installing a saw machine, oil
expeller and flour mill. The house of the
plaintiff is admittedly situate at a very little
distance from the said land. It is quite clear
that if the plaintiff had not given the land to
the defendants for the aforesaid purposes,
he would have taken exception to the
making of constructions over the same and
the installation of the saw machine, oil
expeller and the flour mill. As We have
already pointed out, the finding of fact
recorded by the courts below is that the
land was given by the plaintiff to the
defendants for the purpose of making
constructions and establishing a factory
over it. Since acting on that agreement the
defendants made costly constructions of
permanent nature, the licence has now
become irrevocable.........."

39. The law laid down by their
Lordships of the Division Bench is without
exception as to principle, but of little
assistance to the defendants here. The
reason is that the holding in Babu Fazal
Haq came in the wake of facts, where the
findings returned by the Courts of fact were
that the licensee was permitted to raise
constructions of a permanent nature over
his land by the licensor, which was a saw
machine, oil expeller and flour mill. It was
in that context remarked by their Lordships
that if the licensor permits another to raise
constructions of a permanent character over
his land, where that other incurs expenses
in its execution, the licence becomes
irrevocable.