HARI SINGH Vs. GANGA SARAN

JUDGEMENT

(1.) [There was previous litigation between the parties which was compromised and it was settled that the plaintiffs would keep 6 cots on the roof and a cot in the tin barsati during the rainy season. The barsati got demolished and the landlord got built 3 rooms, 2 kolkies and a store on the roof. The plaintffs sued the landlord for a mandatory injunction that he should demolish the new construction to permit the plantiffs user of the roof claiming the same as part of their tenancy. The defendant contended that the permission to use the roof and barsati was a revocable license and the same stood revoked by blowing off the barsati and by the construction of rooms. Trial Court held in favour of the landlord while the Senior Sub-Judge held it to be an adjunct of tenancy and allowed the appeal but modified the relief that defendant should permit keeping 2 cots in a room and permit enough space for sleeping purpose. The landlord appealed to the High Court.] Paras 8 to 12 of the Judgement are :-

(2.) The allegation of the defendant (now appellant) was that previously there were six cots placed on the roof and Ganga Saran was permitted to use the barsati but after the the barsati fell down the respondents were permited to place eight cots on the roof. This concession could obviously only have been allowed to the respondents if they did have a right to use the portion under the barsati. In the circumstances, I conclude that landlord has permitted the use of the roof as well as the portion of it under the barsati by the tenants and has also recognised this right by permitting two extra cots to be placed on a part of the roof other than that under the barsati, after the barsati is alleged to have fallen down. Thus, the appellant has recognised the licence of the respondents and related it to the lease itself. I, therefore, hold that this is a case of a licence coupled with a transfer of property and is governed by section 60 of the Indian Easements Act, 1882, and is not capable of being revoked by the grantor.

(3.) A number of authorities have been referred to in connection with the legal position existing in the present case and I may now shortly refer to them. A leading case Wood v. Leadbitter 67 The Revised Report 811, has been relied upon to show that a licence is a revokable licence. It was there held that a licence can be revoked at any time and the only licence that cann of be revoked is a licence which is coupled with a grant, on the argument that no person can defeat his own grant and would be estopped from doing so. That proposition was based on the judgment of Vaughan Ch. J. in Thomas v. Sorrell, (1674) Vaughan's Reports 341, which is in the nature of a leading case on the subject.