BABAN MISHRA Vs. SONAWALA INDUSTRIES PVT LTD

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the Judgment dated 18.7.1983, rendered by the learned Single Judge (Khatri,J.), by which First Appeal No.620 of 1974 filed by the respondents-plaintiffs, has been allowed. The plaintiffs had instituted a suit for recovery of their land admeasuring 6500 sq.ft., out of a plot of land admeasuring 42,885 sq.yds., known as "Sonawala Estate" and situate at Goregaon (Mumbai). The suit was dismissed.

(2.) The case set up by the plaintiffs, in brief, is that out of a big plot admeasuring about 42,885 sq.yds, an area of about 1500 sq.ft. was given to the defendant on purely leave and licence basis in or about 1956 by their Manager Babubhai Patel. After about a couple of years, the defendant started encroaching upon the adjoining parts of the land. By 1961, the defendant had extended his encroachment to the additional 5000 sq.ft areas and unauthorisedly erected more structures thereon. The plaintiffs, therefore, served a notice on the defendant on 3.10.1961 revoking his licence and calling upon him to deliver vacant possession of both the pieces of land admeasuring 6500 sq.ft. The defendant, by his reply, denied that he was a licensee. Eventually, the plaintiffs filed the present suit for recovery of possession of the suit land. The defendant, on the other hand, contended that he had taken an area of 18,200 sq.ft on lease from the plaintiffs' Manager Chandulal in as early as 1944 on a monthly rent of Rs.10/-. The defendant alleged that the lease was for the purpose of building structures on the land and accordingly he erected structures on the land in or about 1944-45. The Manager of the plaintiffs had given him an oral assurance that he would not be disturbed for atleast 51 years and as such the plaintiffs were estopped from seeking eviction of the defendant.

(3.) The trial Court, upon scanning the evidence and having perused the pleadings, held that the plaintiffs had failed to prove the alleged licence in respect of 1500 sq.ft.or the encroached portion of 5000 sq.ft. It was observed that there was no enough material on record to precisely identify the areas of 1500 sq.ft. and 5000 sq.ft. in question. In view of the permanent structures erected by the defendant on the suit land after the alleged permission of Chandulal, the trial Court held that the defendant was protected under section 60(b) of the Indian Easement Act and the licence had become irrevocable and, therefore, the suit was dismissed. The First Appeal challenging the judgment of the trial court, however, has been allowed by the learned Single Judge by the impugned judgment dated 18.7.1983.