Prafulla Ku. Samantaray (Dead) and After Him Vs. Bidyadhar Majhi (Dead) and After Him - Court Judgment

A.K. Parichha, J.

1. The judgment and decree passed by the learned District Judge, Phulbani in T.A. No. 7/85 upholding the judgment and decree of learned Sub-ordinate Judge, Boudh in Title Suit No. 1 of 1983 (I) is under challenge in this second appeal.

2. Bidyadhar Majhi, the deceased-respondent No. 1 as the sole plaintiff, filed Title Suit No. 1/1983 (I) before learned Sub-ordinate Judge, Boudh for declaration of his title over the suit land and the kucha house standing thereon (Schedule 'A' Property), recovery of possession of the same and for a direction to defendant Nos. 1 to 5, (who are the present appellants) to remove the additional structure made by them on the suit land. The case of the plaintiff in nut shell was that one Musmut Sambari was the owner and person in possession of the suit land in Khata No. 222 of Boudh town and she sold that land with a kucha house thereon, to the plaintiff by means of a registered sale deed on 8.1.1955 and delivered possession of the property to the plaintiff. The plaintiff was working in police department and was moving from place to place on transfer. He therefore, allowed deceased-defendant No. 6-Natabar Pradhan, who was a friend and practising advocate of Boudh, to raise kucha rooms on that land and use the same for his professional purpose temporarily with an understanding that defendant No. 6 would vacate the suit land and house whenever plaintiff would ask for it. Deceased-defendant No. 6 constructed four kucha rooms on that land and used the same. When the matter stood thus, defendant No. 1, who was a friend of defendant No. 6, retired from service and came to Boudh with his wife and children, defendant Nos. 2 to 5. Since he had no place to stay, he requested defendant No. 6 for shelter and defendant No. 6 allowed him to occupy three of the four kucha rooms on the suit land on condition that he would vacate those rooms as soon as the plaintiff would retire from service and would ask for possession of the land and house. Accordingly, defendant Nos. 1 to 5 resided in three of the rooms on the suit land. On his retirement in 1971 the plaintiff came back to Boudh and resided in his house situated near the Suit land. When he asked back his suit land, defendant No. 6 told that defendant Nos. 1 to 5 were there in three rooms with his permission and that they would vacate the same. With some understanding defendant Nos. 1 to 5 were allowed to continue in those three rooms on permissive basis, but in 1977 defendant Nos. 1 to 5 suddenly raised a kucha wall to obstruct the entry of the plaintiff to the fourth room and claimed right title over the suit land and the house standing thereon. Finding no other way, the plaintiff, filed the suit seeking the aforesaid relief.

3. Defendant Nos. 1 to 5 in their joint written statement while denying the right title of the plaintiff pleaded inter alia that defendant No. 1 acquired the suit land and kucha house standing thereon from Musmut Sambari for Rs. 85/- in the year 1951 by means of an oral conditional sale and took over possession of that property. but because defendant No. 1 was in a transferable service in Co-operative Bank, he allowed defendant No. 6 who was friendly to him, to use the suit land and kucha house standing thereon. It was further pleaded that on retirement of defendant No. 1, defendant Nos. 1 to 5 took back the suit land and kucha house thereon from defendant No. 6 and continued to live therein. Defendant Nos. 1 to 5, thus, claimed title over the suit property through the oral sale and alternatively, by way of adverse possession. Deceased-defendant No. 6 filed written statement supporting the case of the plaintiff. During the pendency of the suit when he died, his legal heirs who were substituted in his place also supported the case of the plaintiff.

4. From the pleadings of the parties, learned Sub-ordinate Judge framed as many as five issues and received evidences of the parties. Deceased-plaintiff examined four witnesses, he himself being P.W. 2, Musmut Sambari being P.W. 3 and the other witnesses P.Ws. 1 & 4 being the scribe of the sale deed and survey knowing Commissioner appointed for local inspection. On behalf of defendant Nos. 1 to 5 three witnesses were examined, defendant No. 1 being D.W. 1, D.Ws. 2 and 3 being witnesses to the possession of the suit land. The parties also produced several documents, the most relevant of those documents being the registered sale deed Ext. 6. Learned Sub-ordinate Judge on consideration of the evidence on record held that the plaintiff purchased the suit property from P.W. 3 by means of registered sale deed Ext. 6 on payment of due consideration and acquired the title over the same. He also held that the case of Defendants that defendant No. 1 purchased the suit property by oral sale is not correct and that the defendant Nos. 1 to 5 remained in possession of the three rooms on the suit land by way of permissive possession and that they never acquired any title over the suit property by adverse possession. On these findings, he decreed the suit. Defendant No.s 1 to 5 carried appeal before learned District Judge, Phulbani mainly challenging the findings of the trial Court on issue Nos. 1 and 4 on the ground that the trial Court did not appreciate the evidence on those issues properly. Learned District Judge after re-assessing the evidence on record confirmed the findings of the trial Court and dismissed the appeal. Aggrieved by such judgment and decree of the trial Court and the appellate Court, defendant Nos. 1 to 5, as appellants, have filed this second appeal.

During pendency of this appeal, respondent No. 1 died and his legal heirs were substituted.

5. At the time of admission, ground No. '3' of the appeal memo has been accepted as the substantial question of law for consideration. The ground reads as follows :

For that even on the plaintiff's case that the appellants occupied the house with permission or as a licensee, and acting upon the license as the appellants have constructed house of a permanent character and incurred expenses in the execution of the work, the Courts below ought to have held that the licence is irrevocable and the appellants cannot be dispossessed.

6. The question raised in this ground No. 3 was never raised before the trial Court or the 1st. appellate Court and there was also no issue on this score in the suit. Mr. Ghose, learned Counsel for the appellants submitted that even in the absence of any issue, point of law raised by a party can be gone into at the stage of second appeal. According to him, there is no dispute that defendant Nos. 1 to 5 remained in possession of the suit land and house and even if such possession is construed as permissible possession of a licensee, yet such licence cannot be revoked and the appellants cannot be evicted from the suit property as they have raised some construction thereon spending substantial amount. Mr. Patnaik, learned Counsel for respondents offers counter argument stating that licensee never gets any right or title over the licensed property by making construction thereon and spending considerable amount.

7. The term 'Licence' has been defined in Section 52 of the Indian Easement Act, 1882;

52. 'Licence' defined - Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.

The Section clearly says that licence does not amount to any easement or any interest in the property. Section 60 of the said Act indicates when a licence can be revoked. According to this Section a licence may be revoked by the grantor unless it is coupled with (a) the transfer of property and such transfer is in force; (b) the licensee acting upon the licence has executed the work of permanent character and incurred expenses in the execution. Sub-section (b) thus says that a grantee who stands by and allows the licensee to build on his land with the belief that he has the power of authority to do so and incur expenses in such building, cannot turn around and claim the removal of such building on the ground that the latter had no authority to build. The appellants are seeking protection under this provision. First of all there was neither any pleading nor any issue that the appellants raised a building on the suit land and that the respondent-plaintiffs stood by and allowed them to construct the building. Rather, it was the specific case of the plaintiff-respondent that four Kucha rooms were there on the suit land and the appellants were in permissive possession of three of these rooms and that as soon as they started a mud wall, the plaintiff-respondents raised objection and filed the suit. There was also no specific evidence from the side of the appellants as to what permanent construction they raised and what was the amount they spent on such building. In such situation Section 60(b) does not come to the protection of the appellants. The question of law raised is accordingly answered.

8. It has been concurrently held by the Courts below that the oral conditional sale in favour of defendant No. 1 was not established and the appellants did not derive title over the suit land through the alleged sale. It was also held that the appellants were in permissive possession of the suit land and did not derive title over the same by adverse possession. On the contrary the Courts below held that the plaintiff derived right title over the suit property through a valid sale transaction. Such concurrent findings of fact are based on oral and documentary evidence and are not at all perverse. So, those factual findings cannot be reopened or disturbed by this Court of second appeal. Besides those findings, it is now seen that the appellants are not entitled to protection of Section 60(b) of the Indian Easement Act, 1882. So, there is absolutely no good reason to upset the judgment and decree of the Courts below.

9. Consequently, this appeal is found to be without any merit and dismissed on contest with cost.