MT. MANBI Vs. KODU

JUDGEMENT

(1.) 1. The facts leading to this second appeal are briefly these: About 30 years ago the plaintiff's husband died leaving three kachcha houses in the town of Mandla. The defendant is the plaintiff's brother's son and lived at Jubbulpore with his mother. In 1901 he was invited by the plaintiff to come and stay with her in one of these houses and since then the parties are admittedly occupying the house which is the subject matter of the present suit. All the three bouses were dismantled and new ones put up in their places at different periods of time from 1908 onwards. The plaintiff's story is that the cost of construction of all the three was borne by her though the money was actually disbursed through the hands of the defendant, while the defendant's version is that after he came over to the plaintiff she gifted the whole of her property including the old houses to him on condition of his maintaining her all her life, and that he rebuilt all the three houses at his cost and had otherwise acquired a title thereto by adverse possession.

(2.) THE plaintiff had brought the present suit to eject the defendant from the occupation of the parties, though each of them occupy separate portions. The trial Court held that the alleged gift was not proved, that the houses were not constructed at the defendant's expense, and that the defendant did not become the owner of the house in dispute by adverse possession. The claim was accordingly decreed.

(3.) THE plaintiff has come up in second appeal and it is contended on her behalf that the lower appellate Court erred in holding that because the defendant paid for the construction of the house he had become the owner of it. Mr. Fida Husain, who appeared for the defendant respondent, stated that the lower appellate Court has not decided that the defendant had become the owner of the house. All that is decided by the District Judge is that the defendant was a licensee of the land, and since the superstructure was constructed by the defendant at some cost and was of a permanent character the license could not be revoked under Section 60 (6), Easement Act. But in view of the principle enunciated in the Land Mortgage Bank of India v. Moti [1886] 8 All. 69 the irrevocability would only apply in the present case to that portion of the site which is covered by the building and not to any other open portion of the site The result indeed is very unsatisfactory to both sides, but as the law stands there is no escape from it. I would, therefore uphold the decision of the lower appellate Court and declare that because the defendant has constructed permanent building on a portion of the site belonging to the plaintiff under an implied license from the plaintiff the license cannot be revoked and defendant cannot be ejected from the building; but that so far as the unbuilt portion of the site is concerned there is no license in favour of the defendant and the plaintiff is the owner thereof along with the building in dispute itself stands.