Neera Chopra and Anr. v. Deepa Bhardwaj & Ors.

11. In the circumstances, though we are of the opinion that IA No. 1097 of 2011 is required to be dismissed, the finding recorded by the High Court that the suit scheduled property is ancestral property of the father of the plaintiff and, therefore, the plaintiff is entitled for a share is uncalled for at this stage and we set aside the same leaving it open for the trial court to examine these questions during the course of trial uninfluenced by any observation made by the High Court in the impugned order [John Kennedy v. Ranjana, Civil Revision Petition NO. 3342 of 2012, order dated 15-11-2012 (Mad)]. The special leave petition is disposed of accordingly. No order as to costs.‖

11. Learned senior counsel for the plaintiffs pointed out that defendant No. 2 admitted that the plaintiffs were “permissive licencees” in their reminder notice to the plaintiffs dated 09th August, 2018. The relevant portion of the said notice is reproduced hereinbelow:- ―my advocate called upon you addressee to vacate and handover the vacant possession of the entire second floor portion of the Main Building, which were in your permissive use and occupation. Your license to use and occupy the said premises has been terminated vide the said notice‖

12. He submitted that by virtue of the fact that the plaintiffs had carried out construction of a permanent nature upon the second floor of the Suit Property, the plaintiffs‟ licence had become an irrevocable licence under Section 60(b) of the Indian Easements Act, 1882 (hereinafter referred to as „Act, 1882‟). In support of his submission he relied upon the judgment of the Supreme Court in Ram Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College and Others (1987) 2 SCC 555 wherein it has been held as under:- ―10. In their pleadings the defendants had invoked the protection of both the clauses of Section 60 of the Act, firstly, they pleaded that the licence was coupled with the transfer of property inasmuch as the school had been realising rent from third parties who were permitted to use a portion of the land. Secondly, they pleaded that the licensee, namely, the school had executed permanent constructions and incurred expenses in execution thereof acting on the licence. The trial court as well as the High Court both rejected the respondents' claim of licence being irrevocable under Section 60(a) of the Act. But they upheld the respondents' plea of licence being irrevocable under clause (b) of Section 60 of the Act. It is true that the pleadings raised in the written statement of defendants did not expressly use the expression that the school had executed work of permanent character ―acting upon the licence‖. But reading the entire written statement one cannot escape the conclusion that the defendants had raised the plea that Raja Ram Kumar Bhargava the grantor of the licence had granted licence for running the school in the building and for using the open land for the purpose of school and in pursuance of the licence, so granted, the school had executed work of permanent character and incurred expenses in making the same. The defendants further pleaded that no objection had been raised by the grantor of the licence or by anyone else against the school in making the constructions. Repeated assertions have been made in their written statement that Raja Ram Kumar Bhargava, had granted a permanent licence which was irrevocable. Substance of the pleading was clear that defendants had raised a specific plea that the school had in pursuance of the licence executed work of permanent character and incurred expenses in execution and that no objection was raised by the licensor; therefore the licence was irrevocable. The licence had been granted to the school for the purpose of running school and imparting education to the students; the licence was not merely in respect of building alone but it was also in respect of open land attached to the building. Additional accommodation was required to provide classrooms for the students which was an integral part of the purpose for which the licence had been granted and the school carried out works on the open land which was appurtenant to the main building, with the knowledge of the licensor as has been found by the trial court and the High Court. In view of the licensor's donation of the property to the school, and his subsequent conduct, the licensee could reasonably entertain a belief that the licensor had permitted the construction on the land, and in pursuance thereof, the licensee made constructions and incurred expenses. The result is that the respondents ―acting upon the licence‖ had executed works by incurring expenses which rendered the licence irrevocable. As regards evidence we have perused the statement of Ganga Prasad Dhayani, DW 1, Shanker Dutt, DW 2, and Bhola, DW 3. Their testimony fully established that the school had constructed three classrooms, latrines and urinals and incurred expenses. Raja Ram Kumar Bhargava in his testimony claimed that the aforesaid constructions had been made by a trust constituted by his family members, but no account books were filed in support of the statement although it was admitted that the trust maintained accounts; on the other hand vouchers were produced on behalf of the defendants showing that the management had spent money for making constructions. Raja Ram Kumar Bhargava who was examined as a witness on behalf of the plaintiff admitted in his testimony that he continued to be the president of the school since 1938 to 1961 and thereafter his wife has continued to be the president; it is therefore difficult to believe that he had no knowledge of the constructions. If the licence did not permit the school to execute any permanent constructions, Raja Ram Kumar Bhargava would have certainly raised objections. His conduct of acquiescence to the raising of constructions, is eloquent enough to show that the licence was irrevocable. No doubt Raja Ram Kumar made attempts to support the plaintiffs case by saying that he had not given the property to the school permanently but the trial court and the High Court both have discarded his testimony and we find no good reason to take a different view. xxx xxx xxx

12. Reference was made to a number of decisions of the High Courts in support of the proposition that a licence is irrevocable under Section 60(b) of the Act only if three conditions are fulfilled, namely, (i) the licensee executed work of a permanent character, (ii) he did so acting upon the licence, and (iii) he incurred expenses in doing so. The onus of proving these facts lie upon the licensee and in the absence of any evidence on these questions the licence could not be irrevocable under Section 60(b) of the Act. Decisions relied are Raghubir Swan v. Param Kirti Saran, Deep Chand v. Kasturi Devi, Koran Singh v. Budh Sen, Mohammad Ali v. Ahmad Husain, Babulal Choukhani v. Caltex (India) Ltd., Hashmat Jahan v. Sheo Dularey, Brun Daban Jena v. Ram Chandra Misra, Banamali Dalbehura v. Ratnamani Dei. We do not consider it necessary to discuss these authorities in detail as in our opinion all the three conditions as required by Section 60(b) of the Act have been made out to show that the licence was irrevocable. The respondents placed reliance on the decisions of Lahore High Court and Oudh High Court in Jagat Singh v. District Board, Amritsar and Thakur Prasad v. J. Thomkinson. In these decisions the court held that where a licence was granted to a school in respect of a land, and in pursuance thereof the licensee constructed work of permanent character on the land, the licence was irrevocable under Section 60(b) of the Indian Easements Act. In our view the court rightly held that where licence is granted for the purpose of running a school without reserving any right to revoke the licence and if the licensee erected works of permanent nature, the grantor of licence is not entitled to recover land, as the execution of work was for the purpose of school and it falls within the expression ―acting upon the licence‖.

REJOINDER ARGUMENTS ON BEHALF OF THE DEFENDANTS

13. In rejoinder, learned senior counsel for the defendants stated that the plaintiffs had nowhere pleaded that they were the licencees of the second floor of the Suit Property or that the purported construction was carried out “acting upon the license”.

14. Learned senior counsel for the defendants submitted that to fall within the ambit of Section 60(b) of the Act, 1882, the plaintiffs had to specifically plead that they were licencees and “acting upon the license” they executed work of a permanent character and incurred expenses in its execution. He contended that the present plaint was bereft of any such pleading. In support of his submission, he relied on the judgment of a Coordinate Bench of this Court in Suraj Prakash & Ors. V. Union of India & Ors., ILR (1997) II Del 673. The relevant portion of the said judgment is reproduced herein below:- ―32. As per the provisions of Section 60 of the Indian Easement Act a license is irrevocable only in those discerning few cases if the licensee acting upon the license has executed some work of permanent nature after incurring expenses thereon. It implies thereby that at the time when the license was given there must be a permission to execute a work of permanent nature and on the basis whereof the licensee has erected the works of a permanent character. This is not so in the instant case. Since the appellants are neither licensees nor tenants.

33. I am supported in my above view by the observations of Oudh High Court as reported in Mohammad Ali and another v. Ahmad Hussain and others, AIR 1932 Oudh 264 ―….Section 60 is inapplicable where the licensee builds a house while the license was merely to remain in possession of the plot for the house cannot be said to be built, acting upon the license‖.‖ COURTS REASONING DOCUMENTS FILED BY THE PLAINTIFFS ALONGWITH THE PLAINT THEMSELVES PROVE BEYOND DOUBT THAT THE SUIT PROPERTY HAD BEEN ALLOTTED TO THE DEFENDANT NO. 2 IN HIS INDIVIDUAL CAPACITY, CONSTITUTING HIS SELF-ACQUIRED PROPERTY

15. Having heard learned senior counsels for the parties, this Court is of the view that upon a meaningful reading of the plaint, it does not disclose a cause of action.

16. This Court is in agreement with the argument advanced by the learned senior counsel for the defendants No. 1 and 2 that the documents filed by the plaintiffs alongwith the plaint themselves prove beyond doubt that the Suit Property C-122, Second Floor, Defence Colony, New Delhi – 110024 had been allotted to the defendant No. 2 in his individual capacity, constituting his self-acquired property. The same is evident from the Certificate of Resettlement dated 05th November, 1952. The said document is reproduced hereinbelow:- ―To be filled in by the Resettlement Officer, Ministry of Defence, New Delhi. (1)Name of the allottee – Lt. C.L. CHOPRA (in block letters) (2)Plot No. C-122 (3)Nature of the Plot Medium Bungalow/Medium/Small (4)Area of the Plot 325Sq. Yds. Certified that after due verification of his eligibilityand Rehabilitation benefits, the above-mentioned plot in Kilokri area was allotted to him under this Office letter No.0045/C/C- 122/Res dated 5 Nov. 52. Resettlement Officer, Ministry of Defence, Seal of the Office New Delhi. (emphasis supplied)

17. Further, serial No.(i) of the Resettlement Certificate does not name the family of defendant No. 2 as co-owners to the Suit Property. In fact serial No.(i) is a standard term incorporated by the DDA and Cooperative Societies in all its allotment letters. Despite the presence of such similar clauses, properties allotted by DDA and Cooperative Societies are considered to be allotted in the name of an individual and not the entire family of the allottee.

18. This Court further finds that the Conveyance Deed dated 06th January, 2000 is in favour of defendant No.2 exclusively. It does not stipulate that the same has been executed for the benefit of the family of defendant No. 2. The relevant portion of the Conveyance Deed dated 06th January, 2000 is reproduced hereinbelow:- ―CONVEYANCE DEED This Conveyance Deed made on this the 6th day of January of one thousand nine hundred & ninety 2000 between the President of India, hereinafter called ―the Vendor‖(which expression shall, unless excluded by or repugnant to the context, he deemed to include her successors in office and assigns) of the one part of Shri/Smt Chunni Lal Chopra son/daughter/wife/widow Sh. Sunder Singh R/o C-122, Defence Colony, New Delhi whereinafter called ―the Purchaser(s)‖(Which expression shall, unless excluded by or repugnant to the context, be deemed to include his/her/their heirs, administrators, representatives and permitted assigns) of the other part.

2. Whereas by an Indenture of Perpetual Lease dated the 17th day of Aug. One thousand nine hundred and Seventy Six made between the Vendor described therein as Lessor of the one part and Sh. Late Cd. Chunni Lal Chopra S/o Late Sh. Sunder Singh of Lessee of the other part and registered on 19.8.1976 in the Office of the Sub-Registrar Delhi at Serial NO.2384 in Book NO.I Volume NO.3702 at pages 27 to 29 (hereinafter referred to as the ―Said Lease Deed‖) a piece and parcel of land admeasuring 325 sq. yds. or thereabouts situated in C-122, Defence Colony, New Delhi and more particularly described in the schedule to the said Lease Deed was demised and assured unto Lt. Cd. Chunni Lal Chopra (hereinafter called ―the original lessee‖) by way of the lease for a period 99 of years subject to the terms & conditions mentioned in the said Lease Deed. xxx xxx xxx

7. NOW IN THE PREMISES HEREIN BEFORE THIS INDENTURE witness that in consideration of the sum of Rs.51903 (Rupees ‗X‘ only) was paid before the execution hereof (the receipt whereof the Vendor hereby admits and acknowldges) and subject to the limitations, convenants and conditions mentioned hereinafter the Vendor doth hereby grants conveys, sells, transfers, assigns, releases and assures unto the Purchaser(s) all the residuary and reversionary rights, title and interests of the Lessor under the said Lease Deed in the demised property more fully described in the said Lease Deed as well as in the schedule hereunder together with all remainders, rents issues and profits thereof hereinafter referred to as the said property TO HAVE AND TO HOLD the same unto the Purchaser absolutely and for ever, subject always to the exception that the Vendor reserves unto himself all mines, minerals coals, gold washings, earth oils and quarries of whatever nature lying in or under the said property together with full right and power at all times for the Vendor, its agents and workmen, to do all acts and things which may be necessary or expedient for the purpose of searching for, working, obtaining, removing and enjoying the same without providing or leaving any vertical support for the surface of the land or for any building for the time being standing thereon provided always that the Vendor shall make reasonable compensation to the Purchaser(s) for all damages directly occasioned by the exercise of the rights hereby reserved or any of them for damage done unto him thereby subject to the payment of property tax or other imposition payable or which may become lawfully payable in respect of said property and to all public rights or easement affecting the same.

8. It is further declared that as a result of these presents and subject to the conditions and covenants stated hereinabove the Purchaser(s) from the mentioned hereabove will become owner of the said property and the Vendor doth hereby releases the Purchase(s) from all future liability in respect of the rent reserved by the covenants and conditions contained in the said Lease Deed required to be observed by the Purchaser(s) as a Lessee of the said demised property.‖

19. The plaintiffs despite being aware of the said Conveyance Deed (having filed the same along with the plaint) have not sought its cancellation. Further the factum of defendant No.2 having sold the first floor to a third party and gifted the ground floor during the lifetime of his son Mr. Rajeev Chopra, without demur, confirms that defendant No.2 is the absolute owner of the suit property.

IT IS SETTLED LAW THAT LAND GRANTED TO A DISPLACED

PERSON IS IN THE NATURE OF GRANT AND GRANT IS ALWAYS SELF- ACQUIRED

20. It is settled law that land granted to a displaced person is in the nature of grant and grant is always self-acquired. This Court in Aarshiya Gulati (Minor) through next best & Ors. V. Kuldeep Singh Gulati & Ors.,2019 SCC OnLine Del 6867 has held as under:- ―54. In the opinion of this Court, land granted to a displaced person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is in the nature of a grant and does not retain the characteristics of properties left behind in Pakistan. A grant is always self acquired. In Pohla Singh alias Pohla Ram (D) by LRs and Others Vs. State of Punjab and Others, (2004) 6 SCC 126, the Supreme Court held: ―This clearly shows that a displaced person on account of his migration to India after partition did not get the same property which he had in the area which became Pakistan, but he got monetary compensation though it was possible that some property out of compensation pool could be sold or transferred to him out of the said compensation amount. The consequence is that the land which Dhanna Singh got in village Budhlada, in District Bhatinda is not the same land which he had got by way of military grant in Sind. It is an altogether different land purchased out of compensation amount which was payable to him or could have been transferred to him by setting off the valuation of the property against the compensation payable to him.‖

55. ‗Grant‘ according to Mulla on Hindu Law, 21st Edition, para 228 is:- ―228. Separate Property- Property acquired in any of the following ways is the separate property of the acquirer, it is called ―Self-Acquired‖, and is subject to the incidents mentioned in Para 222 above:-

1) xxxxx

2) xxxxx 3)Government Grant- Property granted by government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family…..‖

56. The same has also been authoritatively concluded in Mayne‘s Hindu Law and Usage, 16th Edition:- ―308. – Government Grant – Estate conferred by Government in the exercise of their sovereign power become the self-acquired property of the donee, whether such gifts are absolutely new grants, or only the restoration to one member of the family of property previously held by another but confiscated, unless members of his family show that they treated it as joint family property.‖

57. Consequently, a bare perusal of the above commentaries clearly shows that a Grant under Displaced Persons (Compensation and Rehabilitation) Act, 1954 is the ‗selfacquired property‘ of the donee.‖

21. Further, as Mr. Rajeev Chopra (the husband of the plaintiff No. 1 and father of plaintiff No. 2) died during the lifetime of defendant No. 2, the plaintiffs succeeded to no part of the suit property.

EVEN THOUGH ORDER VI RULE 4 CPC IS ATTRACTED TO A SUIT WHERE THE PLAINTIFFS CLAIM THAT A COPARCENARY, HINDU JOINT FAMILY OR ANCESTRAL PROPERTY EXISTS, YET THE PLAINT FAILS TO DISCLOSE ANY PARTICULARS OR DESCRIPTION OF THE ALLEGED ANCESTRAL PROPERTY PURPORTEDLY LEFT BEHIND IN LAHORE OR THE LINEAL DESCENDANTS/COPARCENERS, IF ANY, OF THE SO-CALLED ANCESTRAL PROPERTY.

22. As Order VI Rule 4 CPC is attracted to a suit where the plaintiffs claim that a coparcenary, Hindu Joint Family or ancestral property exists, detailed facts had to be averred. A learned Single Judge of this Court in the case of Surender Kumar Vs. Dhani Ram & Ors. 227 (2016) DLT 217 has held that Order VI Rule 4 CPC is attracted to suits where the plaintiff claims that a coparcenary or HUF exists, as after coming into force of the Hindu Succession Act, 1956, there is no presumption as to the existence of an HUF. Consequently, detailed facts have to be averred. The relevant portion of the said judgment is reproduced hereinbelow:- ―9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order 6 Rule 4, CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhister (supra), there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically, stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.”

23. A Division Bench of this Court in Sagar Gambhir Vs. Sukhdev Singh Gambhir and Ors., 241 (2017) DLT 98 has endorsed the said view. The relevant portion of the Division Bench‟s judgment is reproduced hereinbelow:- ―5. The defendants filed IA No. 1325/2012 invoking Order VII Rule 11 of the Code of Civil Procedure pleading that the averments in the plaint did not disclose a cause of action.

6. Vide impugned order dated May 06, 2016, relying upon the decision of the Supreme Court reported as (1987) 1 SCC 204Yudhihster v. Ashok Kumar, and two decisions of this Court reported as 225 (2015) DLT 211 Sunny (Minor) v. Sh. Raj Singh and 227 (2016) DLT 217 Surinder Kumar v. Dhani Ram the learned Single Judge has held that the pleadings were illusory and did not disclose a cause of action. The suit has been dismissed, and we treat this to be a misnomer for the reason if a plaint does not disclose a cause of action it has to be rejected. Qua challenge to the will, the learned Single Judge has held that this would be a separate cause of action and a separate suit could be filed.

11. …….the Supreme Court laid emphasis that Courts must accord due attention to the pleadings, and in civil cases pertaining to property, must accord the necessary consideration to the admitted documents filed by the parties and highlighted that this care would prevent many a false claims from sailing beyond the stage of issues. In paragraph 73 to 79 of the opinion, the Supreme Court highlighted that suspicious pleadings, incomplete pleadings and pleadings not supported by documents would not even warrant issues to be settled. Thus, the said observations of the Supreme Court would be very relevant in the instant case.

15. The pleadings by the appellant is only to the effect that the property at Rajinder Nagar was purchased by the grandfather of the appellant from out of the funds of the firm M/s. Gian Singh Sukhdev Singh which was set up by the late grandfather of the appellant and that the funds for the business came from the properties left behind in Pakistan. No details or particulars of the properties left behind at Pakistan have been pleaded. We take judicial notice of the fact that post-partition, people who migrated to India from the territories of the newly State of Pakistan were required to file claims before the custodian of evacuee properties and upon proof of properties left behind in Pakistan, compensations were assessed. These people were treated as refugees and either money or an immovable property was allotted to these refugees by the Ministry of Rehabilitation, Government of India. In the plaint the lack of pleadings to said effect cannot be overlooked. There is thus a bald assertion without any material particulars regarding the firm M/s. Gian Singh Sukhdev Singh being set up by the great grandfather of the appellant. The appellant has himself filed documents, and one of which is an income-tax assessment order for the Assessment Year 1957-58 concerning the income-tax return of the defendant No. 1. The same shows that the business of M/s. Gian Singh Sukhdev Singh was the sole proprietary business of defendant No. 1 and the source of funds to acquire the property in Rajinder Nagar was from the income generated from the firm. This document being filed by the appellant could be looked into by the learned Single Judge and the only error in the impugned order would be one of narrative of fact wherein said document has been referred to as relied upon by the defendants. It is a case where the appellant as well as the defendants relied upon the documents.”

24. The plaint in the present case fails to disclose any particulars or description of the alleged ancestral property purportedly left behind in Lahore. There is no averment in the plaint that the defendant No. 2 had succeeded to any specific estate of his father. The plaintiffs have also failed to give details of the lineal descendants/coparceners, if any, of the so-called ancestral property in Lahore on the basis of which it is alleged that the Suit Property is ancestral property.

THE ARGUMENT THAT BY VIRTUE OF CONSTRUCTION CARRIED OUT BY THE PLAINTIFFS THEIR LICENCE HAD BECOME IRREVOCABLE UNDER SECTION 60(b) OF THE ACT, 1882, IS INCONSISTENT WITH AND DESTRUCTIVE OF THE CASE SET UP IN THE PLAINT

25. This Court finds that the argument of the plaintiffs that by virtue of construction carried out by the plaintiffs on the second floor of the Suit Property, their licence had become irrevocable under Section 60(b) of the Act, 1882, is not only unsupported by the requisite pleadings but infact inconsistent with and destructive of the case set up by the plaintiffs in the plaint.

THE PLAINT EMPHASIZES THAT THE PLAINTIFFS OCCUPIED THE SECOND FLOOR OF THE SUIT PROPERTY AND CARRIED OUT CONSTRUCTION AS RIGHTFUL OWNERS. CONSEQUENTLY, THE PLAINTIFFS CAN‘T AVAIL THE BENEFIT OF SECTION 60(b) OF THE ACT, 1882.

26. The case in the plaint is that the Suit Property was ancestral property, of which the plaintiffs were the owners. Pursuant to the said claim the plaintiffs have sought a declaration in prayer (c) of the plaint of their right, title and interest in the second floor of the Suit Property, as ancestral property. The plaint emphasizes that the plaintiffs occupied the second floor of the Suit Property and carried out construction as rightful owners.

27. A Coordinate Bench of this Court in Sirajul Hoque Choudhury v. On the Death of Harish Ali (Defendant) his heirs Farij Ali and Ors., (1991) 1 Gau LR 315 has held that in order to avail the benefit of Section 60(b) of the Act, 1882, there must be a specific pleading that the licensee had acted upon the license and executed work of a permanent nature. The relevant portion of the said judgment is reproduced herein below:- “8. I have perused the plaint and the written statement. Evidently no such plea had been taken by the defendant in the written statement. His only case was denial of the licence. No plea of irrevocability of licence was raised in the pleadings. No such issue was also framed. The relevant issue framed was issue No. 2: whether the defendant was a licensee under the plaintiff or not. There was no issue regarding irrevocability of licence under Section 60(b) of the Act. The trial court, therefore, did not give any decision on that issue. It is the first appellate court which observed for the first that the defendant was entitled to protection from eviction in view of the provision contained in clause (b) of section 60 of the Indian Easements Act and allowed the appeal of the defendant and reversed the judgment of the trial court. The plaintiff appellant has challenged this action as most illegal. Clause (b) of section 60 of the Easements Act provides: ―60. A licence may be revoked by the grantor, unless— (a)...... (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.‖ Clause (b) is thus an exception to the power of the grantor to revoke a licence. Under this clause a licence is irrevocable if, acting upon a licence work of a permanent nature has been executed and expenses incurred in its execution by the licensee. From a plain, reading of this provision, it is clear that to render a licence irrevocable execution of work of permanent nature itself is not enough. What is further required to be proved is that such construction had been raised acting upon the licence, ―Acting upon the licence‖ means acting upon the right given by the grantor. Whether the licensee acted upon a licence by executing the work of permanent nature and whether he incurred expenses in execution of such work or not are essentially questions of fact. The onus to prove the same lies upon the licensee who relies upon the provision of section 60 of the Easements Act and claims that the licence is irrevocable. It is a defence available to the licensee against revocation of the licence by the grantor. If the licensee wants to take such defence he has to raise it specifically. It has to be specifically pleaded and proved in the absence of any pleading, issue and evidence, defence based on section 60 of the Easements Act will not be available to a licensee. Such a plea cannot be raised for the first time in course of arguments before the first appellate court.‖

28. There are observations to the similar effect in Ram Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College and Others (supra) cited by learned senior counsel for the defendants. Further, the Supreme Court in Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan, (1976) 4 SCC 112 and a Coordinate Bench of this Court in Mohm. Jamsed vs. Sk. Altab @ Altaf, 2015 SCC OnLine Ori 572 have taken a similar view. The relevant portions of the said judgments are reproduced hereinbelow:-

―14. Faced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under Section 60(b) of the Easements Act, 1882. This argument was made expressly on the assumption that the power of attorney was a nominal document and therefore inoperative. In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument of irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards the amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so ―acting upon the licence‖, as required by Section 60(b) of the Easements Act…‖

15. In the present case, there is no such specific pleading that renovation work was made by the defendant acting upon the licence and in pursuance of the licence granted by the plaintiff. The defendant claims to have been gifted with the land and thus is in possession on his own right. So, the present stand as regards the irrevocability of the licence is in conflict with the main plea. He never comes forward in so claiming as a licensee nor has placed in the Courts below that instead of the claim of relationship as landlord and tenant, there was the relationship of licensor and licensee between the plaintiff and the defendant. Moreover two important factual aspects as placed by the defendant being taken for consideration, those prevent with full force, the attractibility of the provisions of section 60(b) of Easements Act. The first one is that of leaving of one room at the desire of plaintiff without any demur and the next one is that of demand of the money spent after the renovation. In view of the relationship between the parties as father-in-law and sonin-law, even accepting for a moment that some renovation work was done by the defendant and in view of the very case of the defendant as aforestated, the present submission to thwart the suit of the plaintiff banking upon the provision of section 60(b) of the Easements Act falls flat. Thus, the submission of the learned Counsel for the appellant as regards involvement of the substantial question of law as aforementioned cannot be countenance. Hence, the appeal does not merit admission.‖

29. Consequently, the plaintiffs can‟t avail the benefit of Section 60(b) of the Act, 1882.

CONCLUSION

30. Keeping in view the aforesaid findings, I.A. No. 16888/2018 filed by the defendants No. 1 and 2 under Order VII Rule 11 CPC is allowed and the present plaint is rejected, without order as to costs, on the ground that the plaint discloses no cause of action. The interim order dated 28th September, 2018 stands vacated. MANMOHAN, J MARCH 29, 2019 js/rn/mn