PANCHUGOPALBARUA Vs. UMESH CHANDRA GOSWAMI

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Gauhati dated 12-8-88 in Second Appeal No. 85/79 and has arisen in the following circumstances:

(2.) During the pendency of the suit, Shri Durga Charan Barua died and his legal representatives were brought on the record. The trial Court by a common judgment and order decreed Suit No. 36/67 filed by late Shri Durga Charan Barua directing khas possession to be given to the plaintiff by the defendant and dismissed Suit No. 23/69 filed by respondent No. 1 by returning a finding that there was no evidence to show that respondent No. 1 had entered into any agreement to purchase the suit land with late Shri Durga Charan Barua nor was there any evidence to show that he had paid the sum of Rs. 7860/- to Durga Charan Barua. The trial Court held that the story of an oral agreement to sell the suit land was a concocted one. Aggrieved by the judgment and decree of the trial Court, respondent No. 1 preferred two separate appeals before the District Judge, Jorahat. Vide judgment dated 21-8-78 the District Judge dismissed both the appeals and confirmed the judgment and decree passed by the trial Court in both cases. The respondent No. 1 thereupon preferred two second appeals before the High Court being S. A. No. 77/79 arising out of Suit No. 23/69 and S. A. 85/78 arising out judgment and decree in Suit No. 36/67. The High Court vide judgment and order dated 4-8-88 dismissed Second Appeal No. 77/79 and upheld the concurrent findings of the two Courts to the effect that the story put forward by respondent No. 1 regarding the existence of an oral agreement to sell, had no truth in it. The plea but forward by respondent No. 1 of his occupying the suit land pursuant to the oral agreement to sell was rejected. It was found that respondent No. 1 had been given possession of the suit land as a licensee by the plaintiff as alleged in the plaint. The High Court, however, vide judgment dated 12-8-88 allowed Second Appeal No. 85/79 arising out of Suit No. 36/67 and by the said judgment granted benefit of the provisions of Section 60(b) of the Indian Easements Act, 1882 (hereinafter called the 'Easements Act') holding the licence to be irrevocable on the principles of "justice, equity and good conscience". the High Court relying on the report of the local Commissioner of 1975 came to the conclusion that the structure raised by respondent No. 1 was of a permanent nature and therefore the protection under Section 60(b) of the Easement Act was available to him and he could not be evicted from the suit land. The preliminary objection raised by the appellants, that no plea on the basis of which the benefit of the provisions of the Easements Act was now being sought for the first time in the second appeal had been raised in the written statement; that no issue had been framed and no evidence was led by the parties before the trial Court regarding the availability of the benefit of Section 60(b) of the Act and that even in the first Appellant Court, no such plea had been raised and, therefore, the same could not be allowed to be raised for the first time in the High Court in the Second Appeal, was rejected and the second appeal, was allowed setting aside the concurrent findings of fact.

(3.) XX XX XX