# + ~ .~ - ~· RAM SARUP GUPTA (DEAD) BY LRS v. BISHUN NARAIN INTER COLLEGE & ORS

- **Citation:** [1987] 2 S.C.R. 805
- **Court:** Supreme Court of India
- **Decided:** 1987-04-08
- **Case number:** Civil Appeal No. 638 ~ of 1980
- **Bench:** Sabyasachi Mukharji, K.N. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-sarup-gupta-dead-by-lrs-v-bishun-narain-inter-college-ors-9505
- **Pages:** 20

## Headnote

8
Indian Easement Act, 1882:
Section 52, 60, 62, 63 and 64-License grant of-Express or
implied-Also oral-To be inferred! ascertained from conduct of parties
and circumstances leading to grant of license-When license becomes
irrevocable-Person allowing another to build on his land without c
reserving any right to revoke-Whether entitled to revoke.
Practice and procedure:
Pleading-Form of-Undue emphasis not to be placed-Sub- D
stance of pleading alone to be considered.
The property in di•pute wa• under the oecupation of a school
managed by a Registered Education Society. The Society was managing
the re•pondent college al.o. The •chool was not recognised and had no
endowment and building of its own. In order to secure recognition for E
the school, the President of Society, who owned the property in dispute,
informed the Inspector of Schools by a letter dated November 26, 1941,
that he bad given away the premises occupied by the school free of rent,
which may be considered as bis permanent contribution to the cause of
the school. Pursuant to this, the school was recognised. To meet the
need for additional accommodation the management made permanent F
constructions on the open land attached to the building without any
objection by the donor or any of his family members.
The donor had taken a considerable amount of loan and mortgaged the property in dispute, alongwith a number of properties on
March 27, 1957. In order to pay off the loan the property in dispute was G
got discharged and the donor alongwith his three minor sons executed a
sale deed transferring the property in dispute to the plaintiff-appellant.
The plaintiff-appellant served a notice on the school and its
managing committee terminating their license and directing them to
restore the possession of property to him and upon their failure to do so,
H
805
806
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A filed a suit for possession. The defendants pleaded that the property in
dispute had been donated to the school permanently and the school had
-,...
made permanent constructions by incurring expenses and, therefore,
their license was irrevocable.
The trial court dismissed the suit after recording findings to the
B
effect that the property in dispute belonged to the joint family of which
the donor was Karla, that though the property was donated to the
>--.
school no title passed to it or to any of the defendants as the property
being immovable could not be transferred except under a registered
·~'
deed, and that In the absence of the transfer deed, then donor continued
•
to be the oWller and could transfer title in the property to the plaintiff,
c that under the U.P. Act. III of 1947 no allotment could validly be issued
in favour of the school as there was no vacancy or likelihood of vacancy,
that though the property had been given away to the school by the
,._
donor as permanent contribution, but in the absence of the registered
deed, the transactions amounted to a license only, and since the defendants had made permanent constructions on the premises in suit,
D license was irrevocable under Section 60(b) of the Indian Easements Act
1882 and as the donor himself had no power in a law to revoke the
license, the plaintiff being transferee from him could not acquire any
better right and, therefore, he was not entitled to revoke the license or
to obtain possession of the property. In the appeal before the High
·Ji<
Court there was difference of opinion between the two Judges who
E constituted the Division Bench and the matter was referred to a third
Judge. By majority, ·the High Court affirmed the findings of the trial
court and held that the license granted to the school was irrevocable and
the appellant was not entitled to any relief.
j_
In the appeal to this Court, it was submitted that the trial court as
)..
F
well as the High Court both erred in holding that the license was
irrevocable under Section 60(b) of the Indian Easement Act, that the
defendants had failed to raise nec

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RAM SARUP GUPTA (DEAD) BY LRS.
v.
BISHUN NARAIN INTER COLLEGE & ORS.
APRIL 8, 1987
A
[SABYASACHI MUKHARJI AND K.N. SINGH, JJ.]
8
Indian Easement Act, 1882:
Section 52, 60, 62, 63 and 64-License grant of-Express or
implied-Also oral-To be inferred! ascertained from conduct of parties
and circumstances leading to grant of license-When license becomes
irrevocable-Person allowing another to build on his land without c
reserving any right to revoke-Whether entitled to revoke.
Practice and procedure:
Pleading-Form of-Undue emphasis not to be placed-Sub- D
stance of pleading alone to be considered.
The property in di•pute wa• under the oecupation of a school
managed by a Registered Education Society. The Society was managing
the re•pondent college al.o. The •chool was not recognised and had no
endowment and building of its own. In order to secure recognition for E
the school, the President of Society, who owned the property in dispute,
informed the Inspector of Schools by a letter dated November 26, 1941,
that he bad given away the premises occupied by the school free of rent,
which may be considered as bis permanent contribution to the cause of
the school. Pursuant to this, the school was recognised. To meet the
need for additional accommodation the management made permanent F
constructions on the open land attached to the building without any
objection by the donor or any of his family members.
The donor had taken a considerable amount of loan and mortgaged the property in dispute, alongwith a number of properties on
March 27, 1957. In order to pay off the loan the property in dispute was G
got discharged and the donor alongwith his three minor sons executed a
sale deed transferring the property in dispute to the plaintiff-appellant.
The plaintiff-appellant served a notice on the school and its
managing committee terminating their license and directing them to
restore the possession of property to him and upon their failure to do so,
H
805
806
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A filed a suit for possession. The defendants pleaded that the property in
dispute had been donated to the school permanently and the school had
-,...
made permanent constructions by incurring expenses and, therefore,
their license was irrevocable.
The trial court dismissed the suit after recording findings to the
B
effect that the property in dispute belonged to the joint family of which
the donor was Karla, that though the property was donated to the
>--.
school no title passed to it or to any of the defendants as the property
being immovable could not be transferred except under a registered
·~'
deed, and that In the absence of the transfer deed, then donor continued
•
to be the oWller and could transfer title in the property to the plaintiff,
c that under the U.P. Act. III of 1947 no allotment could validly be issued
in favour of the school as there was no vacancy or likelihood of vacancy,
that though the property had been given away to the school by the
,._
donor as permanent contribution, but in the absence of the registered
deed, the transactions amounted to a license only, and since the defendants had made permanent constructions on the premises in suit,
D license was irrevocable under Section 60(b) of the Indian Easements Act
1882 and as the donor himself had no power in a law to revoke the
license, the plaintiff being transferee from him could not acquire any
better right and, therefore, he was not entitled to revoke the license or
to obtain possession of the property. In the appeal before the High
·Ji<
Court there was difference of opinion between the two Judges who
E constituted the Division Bench and the matter was referred to a third
Judge. By majority, ·the High Court affirmed the findings of the trial
court and held that the license granted to the school was irrevocable and
the appellant was not entitled to any relief.
j_
In the appeal to this Court, it was submitted that the trial court as
)..
F
well as the High Court both erred in holding that the license was
irrevocable under Section 60(b) of the Indian Easement Act, that the
defendants had failed to raise necessary pleadings on the question, no
issue was framed and no evidence was produced by them, that in the
absence of requisite pleadings and issues, it was not open to the trial
court and the High Court to make out a new case for the defendants
G holding the license irrevocable, and that the defendants had failed to
produce any evidence to prove the terms and conditions of the license
j.-
and that the donor being Karla of the joint family could not allenate the
property permanently to the detriment of the minor co-sharers. It was
contended on behalf of the defendants-respondents that both the courts
had recorded findings of fact on appreciation of evidence on record,
H that the license granted by the donor/grantor was irrevocable and that
R.S. GUPTA v. B.N: COLLEGE
807
acting upon the license, the school h~d made construction for the A
--./ purposes of running the school and the license was irrevocable and that
I
necessary pleadings had been raised and there was sufficient evidence in
support of the pleadings.
Dismissing the appeal, this Court,
B
HELD: 1. Where license is granted for the purpose of running
~ the school without reserving any right to revoke license and if the
1
licensee erected works of permanent nature, the grantor of license is not
~ #-· entitled to recover land, as the execution of work was for the purpose of
school and it falls within the expression "acting upon the license". [821E-F]
1
2. If a person allows another to build on his land in furtherance of
}.
the purpose for which he is granted license, subject to any agreement to
'1 the contrary, he cannot turn round, later on, to revoke the license. This principle is codified in Section 60(b) of the Indian Easements Act, 1882. [823E-F]
In the instant case, all the three conditions, viz. (1) the licensee
executed work of a permanent character, (ii) he did so acting upon the
license, and (iii) he incurred expenses in doing so, as required by Section 60(b) oftbe Act have been made out. [821A-B)
l
3.1 License, as defmed in s. 52 of the Easements Act means grant
c
D
of permission, by a person to the other, a right to do or continue to do,
E
in or upon, the immovable property of the grantor, something which
would, in the absence of such right, be unlawful. Snch a right does not
.
amount to an easement or any interest in the property. The rights so
4 conferred is license. The grant of license may be expressed or implied
J which can be inferred from the conduct of the grantor. [817C-D]
F
3.2 Section 60 of the Act enumerates the conditions under which
a license is irrevocable; firstly the license is irrevocable if it is coupled
with the transfer of property and such right is enforced, and secondly,
if the licensee acting upon the license executes work of permanent
character and incurs expenses in execution. But Sec. 60 is not exhaustive. According to Section 62, a license is revocable at the will of the
G
grantor and the revocation may be expressed or implied. Where license
is granted for a specific purpose, and the purpose is attained, or
abandoned, or if it becomes impracticable, the license shall be deemed
to be revoked. [817G-H; E-FJ
3.3 The parties may agree expressly or impliedly that a licenSe H
808
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A which is prima facie revocable not falling within either of the two
categories of license as contemplated hy s. 60 of the Act shall he irrevocable. Such agreeement may he in writing or otherwise. and its terms or
conditions may be express or implied. A license may be oral also, in that
case, terms, conditions and the nature of the license, can be gathered
from the purpose for which the license is granted implied with the
B conduct of the parties and the circumstances which may have let to the
grant of license. [818D-E)
3.4 License had been granted to the school for the purpose of
running the school and imparting education to the students, the license -~ ~
was n11t merely in respect of building alone but it was also in respect of
C open land attached to the building. Additional accomodation was required and the school carried out works on the open land which was
appurtenl!nt to the main building, with the knowledge of the licensor, as
has been found by the trial court and the High Court. In view of th•
~
licensor's donation of the property to the school, and his subsequent
conduct, the licensee could reasonably entertain a belief that the
D licensor had permitted the construction on the land and in pursuance
thereof, the licensee made constructions and incurred expenses. The
result is that the respondents "acting upon the license" had executed works
by incurring expenses which rendered the license irrevocable. [819C-E]
3.5 If the licensee did not permit the school to execu!e any pcrmaE nent constructions, the grantor would have certainly raised objections.
His conduct of acquiescence to the raising of constructions, is eloquent
enough to show that the license was irrevocable. [819H; 820A I
3.6 The pleadings, evidence and circumstances available on re- :i
cord, have fully established that the donor had granted license to the
F school in respect of building and the land attached to it for the purpose
)-·
of imparting education and the school, in furtherance of that purpose
constructed additional building and it further incurred expenses in carrying out modifications and extensive repairs in the existing building
during the period the donor continued to be the President of the Managing Committee of the school and he never raised any objection to it and
G there is nothing on record to show that licensee had retained right to
revoke the license. [823D-E)
'r3. 7 The conduct of the parties has been such that equity will
presume the existence of a condition of the license by plain implication
to show that. license was perpetual and irrevocable. That being so, the
H grantor could not revoke the license or evict the school and the appel-
.~
"
R.S. GUl'T A v. B.N. COLLEGE
809
lant being transferee from him could not and did not acquire any better
right. The appellant, therefore, has no right to revoke the license or to A
evict the school, so long as the school continues to carry on the purposes
for which the license was granted. [823F-G]
4.1 In the absence of pleadings, evidence, if any, produced by the
parties cannot be considered. No party should be permitted to travel B
beyond its pleadings and all necessary and material facts should be
pleaded by the party in support of the case set up by it. The object and
purpose of pleading is to enable the adversary party to know the case it
has to meet. In order to have a fair trial it is imperative that the party
should state the essential material facts so that other party may no! be
taken by surprise. The pleadings, however, should receive a liberal
construction, no pedantic approach "hould be adopted to defeat justice C
on hair-spliting technicalities. Sometimes pleadings are expressed in
words which may not expressly make out a case in accordance with
strict interpretation of law. In such a case, it is the duty of the Court to
assertain the substance of the pleadings, to determine the question. It is
not desirable to place undue emphasis on form; instead, the substance O
of the pleadings should be considered. [814C-F]
4.2 Whenever the question about lack of pleadings is raised, the
enquiry should not be so much about the form of the pleadings; instead,
the court must find out whether in substance the parties knew the case
and the issues. Once it is found that inspite of deficiency in the pleadings E
parties knew the case and they proceeded to trial on those issues by
producing evidence, it would not be open to a party to raise the question
of absence of pleadings in appeal. [814F-H]
In the instant case, the plaintiff knew the case he had to meet; and
for that purpose he produced the donor in evidence in support of tis F
plea and that the license was a simple license and it was not irrevocable
as pleaded by the defendants. [816C-D]
Bhagwati Prasad v. Shri Chandramaul, [1966] 2 SCR 286; Gujrat
Ginning and! Manufacturing Co. Ltd. Ahmedabad v. Moti Lal
Hirabhai Spinning and Manufacturing Co. Ltd., Ahmedabad AIR 1936 G
P.C. 77; Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan,
[1977] 1 SCR 411; Muhammad Ziaul Haque v. Standard Vaccum Oil
Company, 55 Calcutta Weekly Notes 232; Dominion of India v, Sohan
Lal, AIR 1950 EP 40; M. F. De Souza v. Childrens Education, Uplift
Society AIR 1959 Bombay 533; Raghbir Saran v. Param Kirti Saran,
AIR 1962 All. 444; Deep Chand v. Kasturi Devi, AIR 1975 Pat. 17;
H
810
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A Karan Singh v. Budh Sen, AIR 1938 All. 342; Mohammad Ali v.
Ahmad Husain, AIR 1932 Oudh. 264, Babula/ Choukhani v. Caltex
(India) Ltd., AIR 1967 Cal. 205; Hasmat Jahan v. Shea Dularev, AIR
'.-
1942 Oudh. 180; Brun Dahan Jena v. Ram.Chandra Misra, [1963] 29
Cut. L.T. 37; Banama/i Dalbehura v. Ratnamani Dei, [1954] 20 Cut.
L. T. 319; Jagat Singh and Others v. District Board Amritsar, AIR 1940
B Lahore 18 and Thakur Prasad v. J. Thomkinson, AIR 1927 Oudh 206,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 638
~
of 1980.
__.... ...
c
From the Judgment and Order dated 18.2.1978 of the Allahabad
High Court in First Civil Appeal No. 18 of 1965.
S.N. Kacker, G.C. Mathur and C.P. Lal for the Appellants.
~
U.R. Lalit, K.K. Gupta, P.H. Parekh and P.K. Manohar for the
D Respondents.
Soli J Sorabjee, Prithvi Raj, N.B. Sinha and Sanjeev B. Sinha
for Respondents No. 10 to 16.
The Judgment of the Court was delivered by
E
SINGH, J. This appeal by special leave is directed against the
judgment of the High Court of Allahabad dated 18th February, 1978
dismissing the appeal preferred by the appellant against the judgment
and decree of the Additional Civil Judge, Lucknow, dismissing the suit
:(
instituted by him for possession of the property in dispute.
,
F
~
The property in dispute situate at Nawal Kishore Road, Lucknow, consists of buildings and land which have been in the occupation
of the Bishun Narain School. In 1938, certain public spirited persons of
Lucknow city formed a society registered as the Progressive Education
Society for establishing educational institution for imparting educaG tion. Raja Ram Kumar Bhargava who owned considerable property,
in the Lucknow city, was elected Chairman of the Society. He permit-
\.-·
ted the society to run an English Middle School on rent in his building.
which stood on the site in dispute, the school was commonly known as
the "N arhi Middle_ School''. The school was not recognised by the
Education Department of the Government as it had no endowment
H .and no building of its own. After protected correspondence with the
R.S. GUPTA v. B.lj. COLLEGE (SINGH, l.I
811
authorities of the Education Department Raja Ram Kumar Bhargava A
president of the Society by his letter dated November 26, 1941 (Exhibit
C-B-6) inform.ed the Inspector of Schools Lucknow that he has given
away the premises occupied by the school free of rent which may be
considered his permanent contribution to the cause of the school. In
pursuance to the declaration made by Raja Ram Kumar Bhargava the
Education Department of the State Government recognised the B
institution. The members of the Committee of Management felt
obliged to the Raja for his charitable disposition in donating the building to the school, accordingly, they unanimously passed a resolution
expressing their gratitude to the Raja and they further resolved to
change the name of the institution as the "Bishun Narain Anglo
Vernacular School" to perpetuate the memory of late Bishun Narain C
Bhargava, the father of Raja Ram Kumar Bhargava. This meeting was
presided over by Raja Ram Kumar Bhargava himself as the President
of the Society. Thereafter Raja Ram Kumar Bhargava did not realise
rent from the school and he allowed the school to occupy the building
and the open land attached to it for the use of the school. With the
passage of time the school progressed, it was raised to the status of a D
High School and then to the status of an Intermediate College which
was also named after Bishun Narain Bhargava. Subsequently, the
primary section of the institution was separated from the College
section and it was given the name as "Bishun Narain Basic School"
This school has been occupying the property in dispute, however, the
school and the college both were managed by committee of manageE
ment of which Raja Ram Kumar Bhargava continued to be the President till 1961 and thereafter his wife Rani Lila Bhargava became the
President, which office she continued to occupy since then. As there was
considerable increase in the number of students, the institution felt
'
.
short of accommodation. To meet the need for additional accommodation, the management made permanent constructions on the open land F
attached to the main building, to provide three class rooms and other
facilities including bath-room to the students without any objection by
the Raja or any of his family members.
It appears that Raja Ram Kumar Bhargava had taken considerable amount of money as loan from Central Bank of India and to G
secure the loan he executed a mortgage deed, on March 27, 1957
mortgaging a number of properties including the property in dispute
occupied by the school, in favour of the Central Bank of India. The
loan, however, could not be repaid. Raja Ram Kumar Bhargava
offered to sell the mortgaged property and on negotiations, the Bank
agreed to release the property from mortgage to enable Raja Ram
H
>
812
SUPREME COURT REPORTS
[1987] 2 S.C.R.
'
A
Kumar Bhargava •o sell the same for raising money to pay off the loan.
The Bank released the property under a written agreement dated 27th
y
June, 1961 and in pursuance thereof Raja Ram Kumar Bhargava along
with his three minor sons executed a Sale Deed on 27th June, 1961
transferring the property in dispute occupied by the school along with
other property to Ram Sarup Gupta, the plaintiff-appellant. In the
B
registered sale deed the property in dispute was described as Portion II
~-
of ITD Block in Hazratganj, Lucknow, bearing house No. C-43/III in
the occupation of Bishun Narain High School. Ram Sarup Gupta the __,.
appellant after purchasing the property served notice on the school -
and its managing committee terminating their license and directing
them to restore the possession of the property to him within a specified
c
period. Since the property was not restored to him, he filed a suit for
possession against Bishun Narain Inter College, members of the com-
>-·
mittee of management of the college and the Progressive Education
Society in the court of Civil Judge, Lucknow. Subsequently undet the
order of the trial court the members of the committee of the management of the Bishun Narain Basic School were also 'impleaded as
D
defendants 11 to 17. The defendants inter alia pleaded that the Raja
had donated the property in dispute to the school permanently and the
school had made permanent constructions by incurring expenses for
that reason license was irrevocable.
On the pleading of the parties the trial court framed 8 issues and
E
the parties produced evidence in support of their case. The trial court
recorded findings that the property in dispute belonged to the joint
family of which Raja Ram Kumar Bhargava as Karta. Raja Ram
:(
Kumar Bhargava had donated the property in dispute to the school,
;
but no title passed to the school or to any of the defendants as the
)..
property being immoveable could not be transferred e~cept under a
F
registered deed. In the absence of transfer deed Raja Ram Kumar
Bhargava continued to be owner and he could transfer title in the
property to the plaintiff. The defendants' plea that the civil court had
no jurisdiction to entertain the suit or pass decree for possession was
negatived on the findings that under the U.P. Act III of 1947, no
allotment could validly be issued in favour of the school as there was
'r·
G
no vacancy or liklihood of vacancy. The trial court recorded findings
that Raja Ram Kumar Bhargava had given away the property to the
school as his permanent contribution but in the absence of registered
deed the transaction amounted to a license only and since the
defendants had made permanent constructions on the premises in suit,
H
the license was ,irrevocable under section 60(b) of the Indian Easements Act, 1882 (hereinafter referred to as the Act). The trial court
R.S. GUPTA v. B.N. COLLEGE [SINGH, J.]
813
'-( further held that Raja Ram Kumar Bhargava himself had no power in
A
'
law to revoke the license, conseq:iently the plaintiff being transferee
from him could not acquire any better right, therefore he was not
entitled to revoke the license or to obtain possession of the property.
On these findings the trial court dismissed the suit. The appellant took
the matter in appeal before the High Court, the appeal came up for
hearing before a Division Bench consisting of P.N. Jha and K.S.
B
~ Verma, JJ. There was difference of opinion between two learned
Judges. D. N. Jha, J. affirmed the findings of the trial court and opined
- ~- that since license granted to the school was irrevocable, the appellant
was not entitled to any relief. K.S. Verma, J. took a contrary view,
according to him the defendants had failed to raise requisite plea that
the license granted to them was irrevocable as contemplated by Sec- c
-<
tion 60 (b) of the Act and they bad further failed to produce any
positive evidence to prove the terms and conditions of the license
showing that the license was irrevocable. The learned Judge held that
the defendants plea that they had made permanent constructions on
the land in pursuance of the license incurring expenses, could not lie
considered as the defendants had failed to plead the necessary facts in D
their written statement, the evidence produced by them could not be
considered. On these findings the learned judge proposed to set aside
1
the trial court's order and decree the plaintiff's suit. Since there was
difference of opinion the matter was referred to a t1tird Judge. The
appeal was then heard by T.S. Misra, J. he discussed the questions in
~
respect of which the two judges had disagreed and by a de!ailed order E
he concurred with the view expressed by D.N. Jha, J. as a result of
~.
whlch the trial court's judgment was upheld and the appellant's suit
was dismissed. The appellant has preferred this appeal by special leave
under Article 136 of the Constitution.
~
Sh. S.N. Kacker, learned counsel for the appellant contended F
that the trial court as well as the High Court both erred in holding that
the license was irrevocable under section 60(b) of the Indian Easement
Act. He urged that the defendants had failed to raise necessary pleadings on the question, no issue was framed and no evidence was produced by them. In the absence of requisite pleadings and issues it was
i
not open to the trial court and the High Court to make out a new case G
for the defendants, holding the license irrevocable. He urged that the
defendants had failed to produce '"'Y evidence to prove the terms and
conditions of the license. In order to hold the license irrevocable, it
was necessary to plead and further to prove that the defendants had
made construction,
~·acting upon the terms of the license". Shri
Kackar further urged that Raja Rlll Kumar Bhargava being Karla of H
A
B
c
D
E
F
G
H
814
SUPREME COURT REPORTS
[1987] 2 S.C.R.
joint family, could not alienate the property permanently to the detri-
.·y
ment of the ·minor co-sharers. Sri. U.R. Lalit, appearing on behalf of
the defendant-respondents supported the findings recorded by the trial
court and the High Court and urged that both the courts have recorded
findings of facts on appreciation of evidence on record that the license
granted by Raja Ram Kumar Bhargava was irrevocable and that acting
upon the license the school had made construction for the purposes of
running the school and the license was irrevocable. He took us through
).....
the record to show that necessary pleadings had been raised by the
defendants and there was sufficient evidence in support of the pleadings. ~-...
The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that
the license was irrevocable as contemplated by Section 60(b) of the
Act and, if so, is there any evidence on record to support fhat plea. It
is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled
that no party should be permitted to travel beyond its pleading and
that all necessary and material facts should be pleaded by the party in
support of the case set up by it. The object and purpose of pleading is
to enable the adversary party to know the case it has to meet. In order
- to have a fair trial it is imperative that the party should state the
essential material facts so that other party may not be taken by
surprise. The pleadings however should receive a liberal construction,
no pedantic approach should be adopted to defeat justice on hair
splitting technicalities. Sometimes, pleadings are expressed in words
wt,ich may not expressly make out a case in accordance with strict
interpretation of law, in such a case it is the duty of the Court to
ascertain the substance of the pleadings to determine the question. It is
not desirable to place undue emphasis on form, instead the substance
of the pleadings should be considered. Whenever the question about
lack of pleading is raised the enquiry should not be so much about the
form of the pleadings, instead; the court must find out whether in
substance the parties knew the case and the issues upon which they
went to trial. Once it is found that in spite of deficiency in the pleadings
parties knew the case and they proceeded to trial on those issues by
producing evidence, in that event it would not be open to a party to
raise the question of absence of pleadings in appeal. In Bhagwati
Prasad v. Shri Chandramaul, [1956] 1 SCR 286 a Constitution Bench
of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an
issue by implication, and the parties knew that the said plea
•
R.S. GUPTA v. B.N. COLLEGE [SINGH, J.]
815
y
was involved in the trial, then the mere fact that the plea A
was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that
the relief should be founded on pleadings made by the
parties. But where the substantial matters relating to the
~
title of both parties to the suit are touched, though indiB
rectly or even obscurely in the issues, and evidence has
\
been led about them, then the argument that a particular
- 4--,
matter was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with such
an objection is: did the parties know that the matter in c
question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know
that the matter was in issue at the trial and one of them has
had no opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter. To allow one
party to reply upon a matter in respect of which the other D
party did not lead evidence and has had no opportunity to
lead evidence, would introduce considerations of prer
judice, and in doing justice to one party, the Court cannot
do in justice to another."
E
Before we exmaine the pleas raised by the defendants in their
:..
written statement it is necessary to keep in mind that the plaintiff
himself stated in paragraph 4 of the plaint that the property in dispute
has been in occupation of the school as licensee under the permission
~
of Raja Ram Kumar Bhargava erstwhile owner of the property.
Defendant Nos. 11 to 17 in paragraph 10 to 16 of their written stateF
ment while dealing with the question of license expressly stated that
the school had made pucca constructions and had been making various
substantial additions and alterations in the building without any objeclion. Raja Ram Kumar Bhargava had given away the premises in
dispute permanently to the school and they have been in occupation of
i
the premises for the last 20 years and during that period they have G
been making substantial additions and alterations in the building ineluding replastering, re-flooring etc. by incurring heavy expenses. In
paragraph 18 of their written statement they pleaded that the license
was coupled with a grant and in any case it was a permanent and
irrevocable license in favour of the school and the same could not be
revoked by the plaintiff. The pleadings so raised make it apparently H
816
SUPREME COURT REPORTS
[1987] 2 S.C.R.
-
clear that the defendants had raised a specific plea that the license was
A
Ycoupled with grant, it was a permanent and irrevocable license and in
pursuance of the licence the licensee had carried out work of permanent character incurring expenses for the advancement of the purpose
for which the license had been granted. In fact, issue numbers 4, 5 and
6 framed by the trial court relate to the question whether license was
B
irrevocable. The issues so framed involved the question of irrevocability of the license under both the clauses (a) and (b) of the Section 60
f.
of the Act. The plaintiff went to trial knowing fully well that
defendants claim was that the license was irrevocable, on the ground
·~ _,_
that they had made permanent constructions and incurred expenses in
pursuance of the license granted for the purpose of school. The plainc
tiff knew the case he had to meet, and for that purpose he produced
Raja Ram Kumar Bhargava in evidence in support his plea that the
~
license was a simple license and it was not irrevocable. as pleaded by
the defendants. This question has been considered in great detail by
T.S. Misra, J. and we are in agreement with the view taken by him.
D
Mr. Kacker. then contended that mere execution of work of a
permanent character and incurring expenses by the licensee is not
sufficient to make the license irrevocable instead licensee must plead
and prove by positive evidence that the licensee "acting upon the
"1
license", executed work of a permanent character and incurred exE
penses in its execution. The defendants fai\ed to raise any such plea
before the trial court that they had executed the work of permanent
character and incurred expenses "acting upon the license" and they
further failed to produce any evidence in support thereof. He urged
-f
that by making constructions and incurring expenses a licensee could
not make the license irrevocable as the law requires that constructions,
~-
if any, and expenses incurred thereon must be shown to have been
F
made "acting upon the license". He placed reliance on the Privy
Council decision in Gujarat Ginning and Manufacturing Co. Ltd.
Ahmedabad v. Moti Lal Hirabhai Spinning and Manufacturing Co.
Ltd. Ahmedabad, AIR 1936 P.C. 77 and also on a decision of this
Court in Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan,
[ 1977] 1 SCR 411. In addition to these cases he referred to a number of
G
High Court decisions in support of his submissions that benefit of
}-
Section 60 (b) of the Act could not be granted to the respondent
school. Similar grievance had been raised by the appellant before the
High Court on the ground on absence of requisite pleadings with regard to the respondents' claim for the license being irrevocable under
'
H
section 60 (b) of the Act. The majority of the Judges of the High Court
repelled the appellants' submission on a detailed scrutiny of the plead-
R.S. GUPTA v. B.N. COLLEGE [SINGH, J.]
817
'-t/
ings. We have already referred to the pleadings raised by the defenA
dants which contain necessary facts to sustain the pleading of the
license being irrevocable under section 60 (b) of the Act. It is well
settled that the pleadings need not reproduce the exact words or
expressions as contained in the statute, nor the question of law is
required to be pleaded. The substance of the respondents' pleadings
~
clearly informed that their case was that they had made constructions B
\
on the land acting upon the licence which substantially inet the
..__ requirement of law. Before we discuss the authorities cited by the
-
appellants' counsel we consider it necessary to briefly refer to the
provisions of the Act regulating the grant, revocation of license and
other allied matters and also the evidence available on record.
-J,
License as defined by Section 52 of the Act means grant of c
permission, by a person to the other, 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. Such right does not
amount to an easement or any interest in the property. The rights so
conferred is license. The grant of license may be express or implied
D
which can be inferred from the conduct of the grantor. Section 60
provides that a license may be revoked by the grantor unless; (a) it is
ycoupled with a transfer of property and such transfer is in force; (b) the
licensee, acting upon the license, bas executed a work of permanent
character and incurred expenses in the execution. Revocation of
,.
license may be express or implied. Section 62 enumerates circumsE
tances on the existence of which the license is deemed to be revoked.
)_ One of such conditions contemplate that where license is granted for a
specific purpose and the purpose is attained, or abandoned, or if it
--1
beeomes impracticable, the license shall be deemed to be revoked.
Section 63 and 64 deal with license's right on revocation of the license
to have a reasonable time to leave the property and remove the goods
F
which he may have placed on the property and the licensee is further
entitled to compensation if the license was granted for consideration
and the license was terminated without any fault of his own. These
provisions indicate that a license is revocable at the will of the grantor
i
and the revocation may be expressed or implied. Section 60 enumerates the conditions under which a license is irrevocable. Firstly, the
G
license is irrevocable if it is coupled with transfer of property and such
right is enforced and secondly, if the licensee acting upon the license
executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the
grantor of the license may enter into agreement with the licensee
making the license irrevocable, even though, none of the two clauses
H
818
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A
as specified under section 60 are fulfilled. Similarly, even if the two
y
clauses of section 60 are fulfilled to render the license irrevocable yet it
may not be so if the parties agree to the contrary. In Muhammad Ziau/
Hague v. Standard Vacum Oil Company, 55 Calcutta Weekly Notes
232 the Calcutta High Court held that where a license is prima facie
irrevocable either because it is coupled with a grant or interest or
B
because the licensee erected the work of permanent nature there is
f..
nothing to prevent the parties from agreeing expressly or by necessary
implication that licence nevertheless shall be revocable. On the same _..,..
reasoning there is nothing to prevent the parties agreeing expressly or
-
impliedly that the license which m·ay not prima facie fall within either
of the two caterories of license (as contemplated by section 60) should
c nevertheless be irrevocable. The same view was taken by Das, J. (as he
then was) in Dominion of India v. Sohan Lal, AIR 1950 EP 40.
:>--
Bombay High Court has also taken the same view in H.F. De Souza v.
Childrens Education Uplift Society, AIR 1959 Bombay 533. The
parties may agree expressly or impliedly that a license which is prima
facie revocable not falling within either of the two categories of license
D
as contemplated by Section 60 of the J\ct shall be irrevocable. Such
agreement may be in writing or otherwise and its terms or conditions
'
may be express or implied. A license may be oral also in that case,
terms, conditions and the nature of the license, can be gathered from
y
the purpose for which the license is granted coupled with the conduct
of the parties and the circumstances which may have let to the grant of
E
the license.
In their pleadings the defendants had invoked the protection of t
both the clauses of Section 60 of the Act, firstly, they pleaded that the
license was coupled with the transfer of property inasmuch as the
~-
school had been rcdlising rent from third parties who were permitted
F
to use a portion of the land. Secondly, they pleaded that the licensee,
namely, the school had executed permanent constructions and incurred expenses in execution thereof acting on the license. The trial court
as well as the High Court both rejected the respondents' claim of
license being irrevocable under section 60(a) of the Act. But they
upheld the respondents plea of license being irrevocable under clause
~·
G (b) of Section 60 of the Act. It is true that the pleadings raised in the
written statement of defendants did not expressly use the expression
that the school had executed work of permanent character "acting
upon the license". But reading the entire written statement one cannot
escape the coqclusion that the defendants had raised the plea that Raja
H
Ram Kumar Bhargava the grantor of the license had granted license
for running the school in the building and for using the open land for
R.S. GUPTA v. B.N. COLLEGE [SINGH, J.J
819
the purpose of school and in pursuance of the license, so granted, the A
,
school had executed work of permanent character and incurred exf
penses in making the same. The defendants further pleaded that no
objection had been raised by the grantor of the license or by anyone
else against the school in making the constructions. Repeated assertions have been made in their written statement that Raja Ram Kumar
Bhargava, had granted a permanent license which was irrevocable.
B
Substance of the pleading was clear that defendants had raised a specific
. .-li
plea that the schooi had in pursuance of the license executed work of
\
permanent character and incurred expenses in execution and that no
-~ objection was raised by the licensor therefore t)le license was irrevoc-
. able. The license had been granted to the school for the purpose of
running school, and imparting edl}cation to the students, the license C
was not merely in respect of building alone but it was also in respect of
open land attached to the building. Additional accommodation was
-~ required to provide class rooms for the students which was an integral
part of the purpose for which the license had been granted and the
school carried out works on the open land which was appurtenant to
the main building, with the knowledge of the licensor as has been D
found by the trial court and the High Court. In view of the licensor's
donation of the property to the school, and his subsequent conduct,
the licensee could reasonably entertain a belief that the licensor had
permitted the construction on the land, <1nd in pursuance thereof, the
Y licensee made constructions and incurred expenses. The result is that
the respondents "acting upon the license" had executed works by E
incurring expenses which rendered the license irrevocable. As regard
evidence we have perused the statement of Ganga Prasad Dhayani,
DW 1, Shanker Dutt, DW 2, and Bhola, DW 3.