Ram
Sarup Gupta (Dead) by LRS. Vs. Bishun Narain Inter College & Ors [1987]
INSC 98 (8 April 1987)
Singh,
K.N. (J) Singh, K.N. (J) Mukharji, Sabyasachi (J) Citation: 1987 Air 1242 1987
Scr (2) 805 1987 Scc (2) 555 Jt 1987 (2) 76 1987 Scale (1)700
CITATOR
INFO :
R
1988 SC1845 (22)
ACT:
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 reserving any right to revoke--Whether entitled to revoke.
Practice
and procedure:
Pleading--Form
of--Undue emphasis not to be placed--Substance of pleading alone to be considered.
HEADNOTE:
The
property in dispute was under the occupation of a school managed by a Registered
Education Society. The Society was managing the respondent college also. The
school was not recognised and had no endowment and building of its own.
In
order to secure recognition for 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 had given away the premises occupied by the school
free of rent, which may be considered as his 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 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 got discharged and the donor alongwith
his three minor sons executed a sale deed trans- ferring 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, 806 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 effect that the
property in dispute belonged to the joint family of which the donor was Karta,
that though the property was donated to the school no rifle 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 owner and could transfer title in the property
to the plaintiff, 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 likeli-
hood 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, li- cense 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 Court there was difference of opinion between the two Judges
who constituted the Division Bench and the matter was re- ferred to a third
Judge. By majority, the High Court af- firmed the findings of the trial court
and held that the license granted to the school was irrevocable and the appel-
lant was not entitled to any relief.
In
the appeal to this Court, it was submitted 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, 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 holding the license irrevocable, and that the defendants had failed
to produce any evidence to prove the terms and conditions of the license and
that the donor being Karta of the Joint family could not alienate 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, that the license granted by the
donor/grantor was irrevocable and that 807 acting upon the license, the school
had made construction for the purposes of running the school and the license
was irrevocable and that necessary pleadings had been raised and there was
sufficient evidence in support of the pleadings.
Dismissing
the appeal, this Court,
HELD:
1. Where license is granted for the purpose of running the school without
reserving any right to revoke license and if the 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 fails within the
expression "acting upon the licence". [821E-F]
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 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 ex- penses in doing so, as required by Section 60(b) of the
Act have been made out. [821A-B]
3.1
License, as defined in s. 52 of the Easements Act means grant of 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 a 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 expressed or implied which can be inferred from the conduct of
the grantor. [817C-D]
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 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-F]
3.3
The parties may agree expressly or impliedly that a license 808 which is prima
facie revocable not falling within either of the two categories of license as
contemplated by s. 60 of the Act 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 the purpose for which the license is granted
implied with the conduct of the parties and the circum- stances 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 not merely in respect
of building alone but it was also in respect of open land attached to the
building. Additional accommodation was required 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 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 permit- ted 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 exe- cute any permanent
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] 3.6The pleadings, evidence and
circumstances available on record, have fully established that the donor had
granted license to the 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 there is
nothing on record to show that licensee had retained right to revoke the
license. [823D-E]
3.7
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
per- petual and irrevocable. That being so, the grantor could not revoke the
license or evict the school and the appel- 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 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 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 not be taken by surprise.
The
pleadings, however, should receive a liberal construction, no pedantic approach
should be adopted to defeat justice 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 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. [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 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 his plea and that the
license was a simple license and it was not irrevocable as pleaded by the
defendants. [816C-D] Bhagwati Prasad vs. Shri Chandramaul, [1966] 2 SCR 286;
Gujarat
Ginning and Manufacturing Co. Ltd. Ahmedabad v. Moti Lal Hirabhai Spinning and
Manufacturing Co. Ltd., Ahmedabad AIR 1936 P.C. 77; Shankar Gopinath Apte v.
Gangabai Harihar- rao 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;
810
Karan Singh v. Budh Sen, AIR 1938 All. 342; Mohammad Ali v. Ahmad Husain, AIR
1932 Oudh. 264, Babulal Choukhani v. Caltex (India) Ltd., AIR 1967 Cal. 205;
Hasmat Jahan v. Sheo Dularev, AIR 1942 Oudh. 180; Brun Daban Jena v. Ram
Chandra Misra, [1963] 29 Cut. L.T. 37; Banamali Dalbehura v. Ratnam- ani Dei,
[1954] 20 Cut. L.T. 319; Jagat Singh and Others v. District Board Amritsar, AIR
1940 Lahore 18 and Thakur Prasad v .J. Thomkinson, AIR 1927 Oudh 206, referred
to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 638 of 1980.
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 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 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.
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 estab- lishing
educational institution for imparting education.
Raja
Ram Kumar Bhargava who owned considerable property, in the Lucknow city, was
elected Chairman of the Society. He permitted 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 "Narhi Middle School".
The
school was not recognised by the Education Department of the Government as it
had no endowment and no building of its own. After protected correspondence
with the 811 authorities of the Education Department Raja Ram Kumar Bhargava
president of the Society by his letter dated November 26, 1941 (Exhibit C-B-6)
informed 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 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 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 High
School and then to the status of an Intermediate College which was also named
after Bishun Narain Bhargava. Subsequently, the pri- mary 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 management of which Raja Ram Kumar Bhargava continued to be the
President till 1961 and there- after 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 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 con- siderable amount of money
as loan from Central Bank of India and to 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 mort- gaged property and on negotiations, the Bank agreed
to release the property from mortgage to enable Raja Ram 812 Kumar Bhargava to
sell the same for raising money to pay off the loan. The Bank released the
property under a written agreement dated 27th 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 registered sale deed the property in dispute was described as Portion II
of ITD Block in Hazratganj, Lucknow, bearing house No. C-43/111 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 com- mittee
terminating their license and directing them to restore the possession of the
property to him within a specified period. Since the property was not restored
to him, he filed a suit for possession against Bishun Narain Inter College,
members of the committee of management of the college and the Progressive
Education Society in the court of Civil Judge, Lucknow. Subsequently under the
order of the trial court the members of the committee of the management of the
Bishun Narain Basic School were also imp leaded as 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 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 immovable could not be transferred except
under a 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 no vacancy or likelihood 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, the
license was irrevocable under section 60(b) of the Indian Easements Act, 1882
(hereinafter referred to as the Act). The trial court 813 further held that
Raja Ram Kumar Bhargava himself had no power in law to revoke the license,
consequently the plain- tiff 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.
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 contem- plated by Section 60 (b) of the Act and they had 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 be considered as the
defendants had failed to plead the necessary facts in their written statement,
the evidence produced by them could not be considered. On these findings the
learned judge proposed to set aside the trial court's order and decree the
plaintiff's suit. Since there was difference of opinion the matter was referred
to a third 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 detailed
order he concurred with the view expressed by D.N. Jha, J. as a result of which
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 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 not open to the trial court and the High Court to
make out a new case for the defendants, holding the license irrevocable. He
urged that the defendants had failed to produce any 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 defend- ants had made
construction, "acting upon the terms of the license". Shri Kackar
further urged that Raja Ram Kumar Bhargava being Karta of 814 joint family,
could not alienate the, property permanently to the detriment 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 that 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 split- ting 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 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 815 was involved in the
trial, then the mere fact that the plea 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
indirectly or even obscurely in the issues, and evidence has been led about
them, then the argument that a particular 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 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 party did
not lead evidence and has had no opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to one party, the Court
cannot do injustice to another." Before we examine 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 statement 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 objection. Raja Ram Kumar Bhargava had given away
the premises in dispute permanently to the school and they have been in
occupation of the premises for the last 20 years and during that period they
have been making substantial additions and alterations in the building
including 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 816 clear that the defendants had raised
a specific plea that the license was coupled with grant, it was a permanent and
irrevocable license and in pursuance of the licence the licensee had carried
out work of permanent character incur- ring 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
irrevocable. The issues so framed in- volved the question of irrevocability of
the license under both the clauses (a) and (b) of the Section 60 of the Act.
The
plaintiff went to trial knowing fully well that defend- ants claim was that the
license was irrevocable, on the ground that they had made permanent
constructions and in- curred expenses in pursuance of the license granted
for the purpose of school. The plaintiff 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.
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 license", executed work of a permanent
character and incurred expenses in its execution. The defendants tailed 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
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 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 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 section 60 (b) of
the Act. The majority of the Judges of the High Court repelled the appellants'
sub- mission on a detailed scrutiny of the plead- 817 ings. We have already
referred to the pleadings raised by the defendants 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 on the land
acting upon the licence which substantially met 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.
License
as defined by Section 52 of the Act means grant of 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 ease- ment or any interest in the
property. The rights so conferred is license. The grant of license may be
express or implied which can be inferred from the conduct of the gran- tor.
Section 60 provides that 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 permanent character
and incurred expenses in the execution. Revocation of license may be express or
implied. Section 62 enumerates circumstances 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 becomes 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
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 and the revocation may be
expressed or implied.
Section
60 enumerates the conditions under which a license is irrevocable. Firstly, the
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 exe-
cutes 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 818 as specified under section 60 are
fulfilled. Similarly, even if the two 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 Ziaul Hague v. Standard Vacuum 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 because
the licensee erected the work of permanent nature there is 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 may
not prima facie fall within either of the two categories of license (as contem-
plated by section 60) should 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 failing within
either of the two categories of license as contemplated by Section 60 of the
Act 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. the purpose for which the license is granted coupled with the conduct of
the parties and the circum- stances which may have let to the grant of the
license.
In
their pleadings the defendants had invoked the pro- tection of 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 realising rent
from third parties who were permitted to use a portion of the land. Secondly,
they pleaded that the licen- see, 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 (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 perma- nent character "acting upon the license". But reading
the entire written statement one cannot escape the conclusion that the
defendants had raised the plea that Raja 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 819 the purpose of school and in pursuance of the
license, so granted, the school had executed work of permanent character and
incurred expenses 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.
Substance
of the pleading was clear that defendants had raised a specific plea that the
school had in pursuance of the license executed work of permanent character and
in- curred expenses in execution and that no objection was raised by the
licensor therefore the license was irrevoca- ble. The license had been granted
to the school for the purpose of running school and imparting education to the
students, the license 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 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 permit- ted 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. As regard evidence
we have perused the statement of Ganga Prasad Dhayani, DW 1, Shanker Dutt, DW
2, and Bhola, DW 3. Their testimony fully established that the school had
constructed three class rooms, latrin and urinals and incurred expenses. Raja Ram
Kumar Bhargava in his testimony claimed that the aforesaid constructions had
been made by a trust constituted by his family members, but no account books
were filed in support of the statement, although it was admitted that the trust
maintained accounts on the other hand vouchers were produced on behalf of the
defendants showing that the management had spent money for making
constructions. Raja Ram Kumar Bhargava who was examined as a witness on behalf
of the plaintiff admitted in his testimony that he continued to be the
president of the school since 1938 to 1961 and thereafter his wife has
continued to be the president, it is therefore difficult to believe that he had
no knowledge of the constructions. If the license did not permit the school to
execute any permanent constructions, Raja Ram Kumar Bhargava would have
certainly raised objec- tions. His conduct of acquiescence to the raising of
820 constructions, is eloquent enough to show that the license was irrevocable.
No doubt Raja Ram Kumar made attempts to support the plaintiff's case by saying
that he had not given the property to the school permanently but the trial
court and the High Court both have discarded his testimony and we find no good
reason to take a different view.
In
Gujrat Ginning and Manufacturing Co. Ltd. Ahmedabad v. Moti Lal Hirabhai
Spinning and Manufacturing Co. Ltd.
Ahmedabad,
protection of Section 60(b) of the Act was in- voked by a party who had made
constructions on his own land and not on the land of the licensor and in that
factual backdrop the Privy Council held that the expression "acting upon
the license" must mean acting upon a fight granted to do upon the land of
the grantor something which would be unlawful in the absence of such right. A
man does not "acting upon a license" executes works and incurs
expense upon his own property as that he can do without any one's license.
These observations do not support the appellant on the other hand they show
that if a man executes work of permanent character and incurs expense on the
property of other person under a license he may have done so "acting upon
the license". In Shanker Gopinath Apte v. Gangabhai Hariharrao Patwardhan
the plaintiff had raised plea of tenancy failing which he claimed to be in
possession of the land, in part performance of an agreement for sale. On the
rejection of both the pleas the plaintiff-appellant therein raised a further
plea that he was protected under section 60(b) of the Indian Easements Act as
he had executed works of permanent character on the land incurring heavy
expenses.
This
Court rejected the submissions on the ground of absence of pleadings, issues
and evidence. While rejecting the appellant's submissions the Court observed
that even assuming that the appellant had executed work of a permanent
character on the land it could not be said that he had done so "acting
upon the license" as required by Section 60(b) of the Easements Act. The
Court observed that the appellant improved the land by executing work c-f a
permanent charac- ter, he did so, in the belief that being a tenant he would
become statutory purchaser of the land or that the oral agreement of sale will
one fine day be implemented. The execution of the work was done either in the
capacity as a tenant or as a prospective purchaser but not as a licensee.
The
decision has no application to the facts of the present case as admittedly the
school was a licensee and in that capacity it executed works of a permanent
character, by incurring expenses and this plea was raised at the initial stage
before the trial court.
821
Reference was made to a number of decisions of the High Court in support of the
proposition that a license is irrevocable under section 60(b) of the Act only
if three conditions are fulfilled, namely, (i) the licensee executed work of a
permanent character, (ii) he did so acting upon the license, and (iii) he
incurred expenses in doing so. The onus of proving these facts lie upon the
licensee and in the absence of any evidence on these questions the license
could not be irrevocable under section 60(b) of the Act. Decisions relied are
Raghbir Saran v. Param Kirti Saran, AIR 1962 All.
444;
Deep Chand v. Kasturi Devi, AIR 1975 Pat. 17, Karan Singh v. Budh Sen, AIR 1938
All. 342; Mohammad Ali v. Ahmad Husain, AIR 1932 Oudh. 264; Babulal Choukhani
v. Caltex (India) Ltd., AIR 1967 Cal. 205; Hashmat Jahan v. Sheo Dularey, AIR
1942 Oudh. 180; Brun Daban Jena v. Ram Chandra Misra, [1963] 29 Cut. L.T. 37;
Banamali Dalbehura v. Ratnam- ani Dei, [1954] 20 Cut. LT 319. We do not
consider it neces- sary to discuss these authorities in detail as in our opin-
ion all the three conditions as required by Section 60(b) of the Act have been
made out to show that the license was irrevocable. The respondents placed
reliance on the deci- sions of Lahore High Court had Oudh High Court in Jagat
Singh and others v. District Board Amritsar, AIR 1940 Lahore 18 and Thakur
Prasad v.J. Thomkinson, AIR 1927 Oudh 206. In these decisions the Court held
that where a license was granted to a school in respect of a land, and in
pursuance thereof the licensee constructed work of permanent character on the
land, the license was irrevocable under section 60(b) of the Indian Easements
Act. In our view the Court rightly held that where license is granted for the
purpose of run- ning school without reserving any right to revoke the li- cense
and if the 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".
Learned
counsel for the appellant urged that in the absence of any document containing
the terms and conditions of the license, the courts below committed error in
holding that license was irrevocable. Since no written document was executed by
the parties containing the terms and conditions of the license, the terms and
conditions could be inferred from the attending circumstances and the conduct
of the parties. Raja Ram Kumar Bhargava was the President of the Society which
was running the Narhi Middle School, but it was not recognised by the Education
Department of the State of U.P. The correspondence which is on record shows
that the Education Department insisted that there should be some endowment and
school should own building 822 and land before it could be granted recognition.
Raja Ram Kumar Bhargava gave away the disputed property donating the building
and the land in favour of school by his letter dated November 26, 1941 (Ex
C-B-6) addressed to the Inspec- tor of Schools, Lucknow. In that letter Raja
Ram Kumar stated "I have given my building free of rent to the Narhi
Middle School. I now write to inform you that the premises at present in the
occupation of the school free of rent which may be considered my permanent
contribution to the cause of the school." On the receipt of that letter
the Education Department granted recognition to the school. The proceedings of
the Managing Committee of the school held on January 6, 1942 (Ext. B-16) show
that a meeting of the Managing Committee was held on that day president over by
Raja Ram Kumar Bhargava and in that meeting the Managing Committee expressed
its deep sense of appreciation and grateful thanks to Raja Ram Kumar Bhargava
for donating the building to the school for procuring the recognition to the
school from the U.P. Government, and it further resolved to name the school as
the Bishun Narain Anglo Vernacular School to perpetuate the memory of Shri
Bishun Narain Bhargava father of Raja Ram Kumar Bhargava. These documents
clearly indicate that Raja Ram Kumar Bhargava had permanently donat- ed the
property in dispute to the school and in lieu thereof the institution was named
after his father to perpetuate his memory. The purpose of the grant was to
enable the school to carry on its activity of imparting education to the stu-
dents. The school progressed and it required additional building, Management of
the school which was headed by Raja Ram Kumar himself, constructed additional
buildings to provide for class rooms and other amenities to the students.
Raja
Ram Kumar Bhargava himself never raised any objection against the school making
additional constructions on the disputed land. These facts and circumstances
point out the terms and conditions of the license, that the school was
permitted to occupy and enjoy the land permanently for the purpose of
education. In this background, it would be reasonable to infer, an implied
condition that the license was irrevocable and the school was permitted to
occupy and use the premises so long as it continued the purpose of imparting
education to the students.
The
appellant's submission that Raja Ram Kumar Bhargava being Karta of joint family
could not create a permanent license in favour of the school without the
consent of other co-sharers, tO the detriment of his minor sons, is devoid of
any merit. No co-sharer or member of the joint family ever raised any objection
to the donation of the property to the school by Raja Ram Kumar Bhargava nor
they 823 raised any objection at any stage of construction of the additional
buildings by the school. There is no evidence on record to show that his three
minor sons, on whose behalf he executed sale deed on 27th June 1961 in
appellant's favour were born prior to 1941. Moreover title in the property was
not transferred to the school instead a permanent license was granted, in which
every member of the joint family, must have been interested, as the school
perpetuated the memory of the common ancestor Shri Bishun Narain Bhargava
father of Raja Ram Kumar Bhargava. The question of any legal necessity did not
arise and the grant of permanent license in favour of the school' could not be
rendered void merely because Raja Ram Kumar Bhargava was Karta of the joint
family. No co-sharer has challenged the validity of the license, on that
ground. On the other hand they have acquiesced to it.
There
is thus no merit in the appellant's contention.
In
view of the above discussion we are of the opinion that the pleadings, evidence
and the circumstances available on record, have fully established that Raja Ram
Kumar Bhar- gava had granted license to the school in respect of the building
and the land attached to it for the purpose of imparting education and the
school in furtherance of that purpose constructed additional buildings and it
further incurred expenses in carrying out modification and extensive repairs in
the existing buildings during the period, Raja Ram Kumar Bhargava continued to
be the President of the Managing Committee of the school. He never raised any
objection to it and there is nothing on record to show that licensor had
retained right to revoke the license. If a person allows another to build on
his land in the furtherance of the purpose for which he had granted license,
subject to any agreement to the contrary cannot turn round, later on, to revoke
the license. This principle is codified is Section 60(b) of the Act. Moreover,
conduct of the par- ties 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, Raja Ram Kumar Bhargava could not
revoke the license or evict the school and the appellant being transferee from
him could not and did not acquire any better right. The appellant there- fore
has no right to revoke the license or to evict the school, so long the school
continues to carry on the purpose for which the license was granted. The trial
court and the High Court have therefore rightly dismissed the suit.
Before
concluding, we would like to observe that the appellant purchased the property
in dispute from Raja Ram Kumar Bhargava for valuable consideration and he
continues to be the owner of the 824 property, his desire to get the possession
of the property is quite natural but at the same time we cannot shut our eyes
to the hard reality that Raja Ram Kumar Bhargava erstwhile owner of the
property had granted an irrevocable license in favour of the school. On 27th
June 1961 when Raja Ram Kumar Bhargava executed the sale deed in appellant's
favour the property in dispute was in possession of the school under an
irrevocable license. The appellant should have known that the institution was
occupying the property and it was rendering public service in imparting
education to the students and it would be difficult to get possession, in spite
of that, the appellant purchased the property. The school has been occupying
the property since 1939 and it has made permanent constructions without any
demur from any quarter, in this situation it is not possible to grant any
relief to the appellant. To evict the school may result into closure of the
institution and that would certainly be against public interest. Having regard
to these facts and circumstances, we gave opportunity to the parties to evolve
settlement to adjust equities without disturbing the cause of education. We
regret to say that the parties could not settle the matter, we have therefore
decided the appeal on merits.
In
view of the above discussion we do not find any merit in the appeal it is
accordingly dismissed. In the circum- stances of the case parties shall bear
their own costs.
N.P.V.
Appeal dis- missed.
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