RAGHUBIR SARAN Vs. PARAM KIRTI SARAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs whose suit for permanent injunction and possession over a plot of land has been dismissed by the appellate court. The second appeal has been referred to a larger Bench by Upadhya, J. because an important question of law is involved in it. The respondent is admittedly the owner of the land and it is admitted that one Bankey Lal, or his predecessor, built on it a tiled thatch. Who exactly constructed it, on what conditions and terms, and When is not known. In execution of a decree obtained against Ban-key Lal's widow Smt. Shanti, the thatch together with the right of residence was put to auction in 1929 and purchased by the appellants. The sale certificate granted to them on 23-3-1929 expressly mentions that the site, i.e., the land on which the thatch stood, was not sold, and that right of residence was sold, to them. Though the appellants claimed that the thatch existed till one or two years before the institution of the suit giving rise to this appeal in 1946, the findings of the courts below are that it fell down in 1930, that the land remained vacant ever since then and that the respondent is in possession of it. The appellants started to construes a house on the land in 1946 when they were obstructed by the respondent hence the suit by them. The trial court decreed the suit, but the lower appellate court dismissed it.

(2.) It is not disputed that whoever constructed the thatch was a licensee; we may assume that Smt. Shanti continued to be a licencee. Unless a licence is irrevocable (revocable?) within the meaning of Section 60 of the Easements Act is be revoked expressly or impliedly. What is meant by "revocation of a licence may be implied' is that the Court may, in its discretion, infer revocation from certain circumstances though it is not bound to do so. Section 62 lays down the circumstances in which a licence "is deemed to be revoked." Evidently when any or the circumstances mentioned in Section 62 exists the court is bound to infer revocation; in other circumstances it is at its discretion. Sri Ambika Prasad relied upon the circumstance mentioned in Section 62(d) as a circumstance in which the courts below were bound to infer revocation of the licence. We do not agree. The property affected by the licence in the present case is the land; it was the land in respect of which the licence was granted by the respondent or his predecessor in interest. The thatch which was constructed was certainly not a property affected by the licence for the simple reason that it did not exisit when the licence was granted. Because the licence was granted for the construction of a thatch it cannot be said that the thatch constructed is the property affected by the licence. Here the thatch was destroyed and not the land and, therefore, the circumstance mentioned in Section 62(d) is not proved to exist, and the court was not required to hold that the licence stood revoked when the thatch fell down.

(3.) Another circumstance relied upon by Sri Ambika Prasad is that mentioned in Clause (f). The licence was granted, presumably for the purpose of constructing a thatch and the purpose can be said to have been abandoned when the thatch fell down and no attempt was made to rebuild it or to construct another on the site within a reasonable period. The licence, therefore can be said to have been revoked when the thatch fell down and it was not reconstructed Or another was not built on the land for a period exceeding twelve years. We do not mean to lay down that twelve years period is a reasonable period; what we lay down is that when no attempt was made to rebuild the thatch or to build another during fourteen years, the appellants must be deemed to have abandoned she purpose of the licence. After the licence was (deemed to be) revoked in this manner, they, had no right to construct a house, and if still they attempted to construct a house they were acting as trespassers and the respondent was fully justified in resisting them. A trespasser is not entitled to a decree for possession or injunction as he has no title. The respondent's act of preventing the appellants from constructing a house on the land itself can be treated as an implied revocation of the licence. When the thatch constructed under the licence fell down and the respondent stopped the appellants from reconstructing it, it means nothing but that he revoked the licence. No formality is required for the revocation of a licence; it can take place in any form. We were referred to Sheo Sahai v. Tilok Singh, 1936 All LJ 569: (AIR 1936 All 553) in which Niamat Ullah, J. observed as follows: