JAGANNATH GOVIND SHETTY Vs. JAYANTILAL PURSHOTTAMDAS PATEL

JUDGEMENT

(1.) The next and moot question that arise for our consideration is whether the license in question was lawfully terminated by Jayantilal. At this stage we would like to resolve the belated controversy half-heartedly sought to be raised by Mr. Qureshi regarding the correct nature of the relationship between the parties. Mr. Qureshi read sec. 52 of the Indian Easements Act 1882 before us and urged that under sec. 52 of the Act Jayantilal was not the owner of the immovable property viz. the suit premises and therefore he could not grant license of the same to Jagannath. Sec. 52 reads as follows:-

(2.) Mr. Qureshi then urged that such a license could not be revoked because of clauses (a) and (b) of sec. 60 of the Easements Act. Said sec. 60 is reproduced below:- 60 A license may be revoked by the grantor unless :-

(3.) Mr. Qureshi however urged that here was the license coupled with the specific agreement that as along as the licensee went on paying the license fee regularly every month the alleged partnership was not dissoluble. Such a specific term is there in the latter part of paragraph 11 of the agreement. In place of word partnership we have to read the word license as a real relationship contemplated by the parties. There is therefore no difficulty in concluding on the basis of Exhibit 29 that the parties had agreed that as long as Jagannath went on paying regularly the amount of fixed consideration the leafiness was not revocable. Leaning heavily on this specific and express agreement between the parties Mr. Qureshi urged that the license was not revocable and any attempt on the part of Jayantilal to revoke this License should not be entertained. On the other hand Miss Shah for Jayantilal submitted that wherever there is a relationship of licensor or licensee the license is revocable irrespective of such an agreement to the contrary and the irrevocability is confined to clauses (a) and (b) of sec. 60 alone and that such an agreement even though express and explicit is not to be given any weight. We frankly say that this is a question on which there is no uniform opinion of various High Courts. However as far as this High Court is concerned the Division Bench of this Court consisting of Miabhoy J. (as he then was) and Modi J. has concluded the controversy. The question has been clinched and the view submitted by Miss Shah is the one laid down by the said Division Bench of this Court in the case of Bai Hanifa Jusab v. Memon Dadu A. Gani Surdharia A.I.R. 1964 Gujarat page 44=5 G.L.R. 198 There was in the field the judgment of the Single Judge of the Bombay High Court in the case of M.F. DeSouza v. Childrens Education Uplift Society A.I.R. 1959 Bombay 533 Supporting the contention of Mr. Qureshi before us. The matter was referred to the Division Bench by the learned Single Judge before whom the question bad cropped up and the Division Bench after examining the divergent views of various High Courts viz. Allahabad and Calcutta High Courts and the earlier decision of the single Judge of the Bombay High Court concluded as follows:-