JUDGMENT : Barman, J. - This is Defendants second appeal against the appellate judgment of the learned subordinate Judge, Mayurbhanj, reversing a decision of the learned Munsif, Rairangpur, on circuit at Karanjia, dismissing the suit filed by the Plaintiff-Respondent. 2. This matter arose in these circumstances The Plaintiff's case is that he purchased the suit land in 1941 from one Nilambar Panigrahi, father of the Defendant No. 2, by oral sale accompanied by delivery of possession. In June 1951, the Plaintiff allowed the Defendant No. 1 to construct a temporary shed on the suit land for his betel shop on his executing a Chuktipatra (ext. 3) dated 24-6-1951 on condition that the Defendant No. 1 would give up the site and this would come to his use when required. In August 1952, it appears from the records, the Defendant No. 1 lodged information at the local police station charging the Plaintiff u/s 379 Indian Penal Code for theft of certain crops from a portion of the suit land. The police, however, after enquiry submitted Final Report. The Defendant No. 1 did not rest there. He obviously with a view to create evidence started proceedings u/s 145 Code of Criminal Procedure in respect of the suit land. There again he was unsuccessful. Ext. 5 is a certified copy of the order of the learned Magistrate in the said proceedings u/s 145 Code of Criminal Procedure From the order it appears that the 2nd party being the Plaintiff in the present suit, was directed to continue in possession although the learned Magistrate dropped the proceedings on evidence before him. It has to be noted that the learned Magistrate did not mention anything about the 1st party's, namely, the Defendant No. 1's possession over the suit land in the proceedings before him. 3. In this suit there is no document of title on which either party relies. The matter has to be decided on the facts regarding possession on the materials before this Court. The Plaintiffs case is that he purchased the suit land from Nilambar Panigrahi, father of the Defendant No. 2, as aforesaid; whereas the Case of the Defendant No. 1 is that he got the suit land by way of gift from the son of Nilambar, that is Defendant No. 2. the Defendant No. 1 indeed relied on a deed of gift which, however, was not a registered document. the Defendant No. 1 indeed relied on a deed of gift which, however, was not a registered document. It appears that the document was sought to be introduced at the trial but it was not admitted in evidence, presumably because it was an unregistered document. Therefore, the document was not tendered in evidence, The Plaintiff's purchase was also not supported by any document. It appears to be an oral purchase accompanied by delivery of possession. 4. The learned Munsif dismissed the suit mainly on the ground that it was apparent from the evidence on the side of the Plaintiff that he got no delivery of possession of the property he had purchased from Nilambar Panigrahi. 5. This leads me to the consideration of the evidence adduced at the trial regarding possession in respect of the suit land. The Plaintiff adduced five witnesses at the trial. The Defendants adduced three witnesses including the Defendant Nos. 1 and 2. None of the Defendants witnesses were in respect of the alleged possession of the land which the Defendants claimed in this suit. As regards the Plaintiffs witness, P.W. 4 Monbodh Mohant deposed that he was an eye-witness to the fact of sale, he having seen the consideration for the sale passing from the Plaintiff-purchaser to the vendor Nilambar Panigrahi (father of Defendant No. 2). He also deposed about the delivery of possession in his presence in that the suit land was pointed out and demarcated in his presence. P.W. 5 is the Plaintiff himself who had been corroborated by P.W. 4 as aforesaid. P.W. 1 was also a witness about the said by Nilambar Panigrahi to the Plaintiff. P.W. 2 was the Court Amin who prepared Exts. 1 and 2 being the Amin's report and the trace map respectively in respect of the suit land. The most important evidence in this case is the Chuktipatra (ext. 3) dated June 24, 1951. In this document, the Defendant No. 1 wrote to say that he was building a temporary betel shop on the marked house site of the Plaintiff and that at the time of the Plaintiffs necessity be would be obliged to give up the site and this would come to his use when required. The genuineness of this document was, however, disputed by the Defendant No. 1 so much so that he even disputed the signature on the document. The genuineness of this document was, however, disputed by the Defendant No. 1 so much so that he even disputed the signature on the document. It appears that both the signature and the writing on the document are in the same ink. Furthermore, the signature of the Defendant No. 1 clearly indicates that he was not an illiterate man and was quite in a position to know and understand what document he was putting his signature on. The Defendant No. I, in course of his evidence before the learned Magistrate in the proceedings u/s 145 Code of Criminal Procedure in Case No. 270 of 1952 (ext. 4) said with reference to the Chuktipatra (ext. 3) that this was a lease (temporary) written by him in favour of Bhaktabandhu Mohanta (Plaintiff) for erecting a temporary shed for betel shop. Mr. G.G. Das, learned Counsel appearing for the Defendant Appellants, contended that this statement of the Defendant No. 1 was not admissible in evidence in the suit because of non-compliance with Section 145 of the Evidence Act, on the ground that the statement was not put to him in cross-examination in course of the hearing of the suit. I am not, however, impressed with this aspect of his argument; nor did Mr. G.G. Das press it further. 6. In the last report, it was contended on behalf of the Plaintiff-Appellants that on the evidence before the trial judge the Defendant No. 1 could at least, in respect of the 2 Biswas and 18 Gandas of land, claim it as a licensee under the Easements Act. In fact, he relied on a finding of the learned Munsif that the Defendant No. 1 was not a licensee and as such he was in permissive possession of the suit land. The learned Counsel for the Appellants while pursuing this aspect of the argument pointed out to me the provisions of Sections 52 and 60 of the Easements Act. (Central Act V of 1882). Section 60 provides: A license may be revoked by the granter unless (a) X X X X (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. Furthermore, Mr. (Central Act V of 1882). Section 60 provides: A license may be revoked by the granter unless (a) X X X X (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. Furthermore, Mr. G.G. Das also drew my attention to the evidence of P.W. 1 where he said that the Defendant No. 1 had built up a pucca house with brick and mortar and with a the ached roof over it and-that for the last four years the Defendant No. 1 had constructed such a house upon the suit land. This portion of the evidence is sought to be relied upon in support of the contention that the structure was a permanent one to amount to a license under the Easements Act which could not be revoked u/s 60 of the Easements Act. This indeed would have been a good defence if the Defendant No. 1 had taken up this point in his pleadings and urged it before the trial court. I think that by allowing the Defendant No. 1 to take this point at the second appellate stage before this Court would indeed spring a surprise on the Plaintiff for which he was not prepared. If the Defendant No. 1 had initially taken up this point at the trial, certainly the Plaintiff would have accordingly got the chance of adducing evidence to meet his case and cross-examined the Defendant to demolish his case of easement, which opportunity the Plaintiff had not at the trial. The learned Counsel for the Defendant Appellants cited before me a decision of the Supreme Court in support of his contention that he can even at the second appellate stage make an alternative case if he can do so from the evidence on record. The decision of the Supreme Court is Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, where on a question of limit of time for execution, their Lordships of the Supreme Court, with reference to Section 48, Sub-section (2) of the CPC dealt with the conduct of the judgment-debtor amounting to fraud or force which was alleged to have prevented the execution of the decree at some time within 12 years. Walchand Ramchand Kothari, where on a question of limit of time for execution, their Lordships of the Supreme Court, with reference to Section 48, Sub-section (2) of the CPC dealt with the conduct of the judgment-debtor amounting to fraud or force which was alleged to have prevented the execution of the decree at some time within 12 years. In view of the definite findings of both the courts below that there was fraud preventing the execution of the decree within the meaning of Section 48, Code of Civil Procedure, their Lordships had next to meet the objection u/s 18, Limitation Act which provides that where there is fraud, computation is to be from the time when fraud became known to the person. The point before their Lordships was whether on the evidence available to them they could spell out fraud on the part of the judgment-debtor. In that context, their Lordships observed that if the facts proved and found as established are sufficient to make out a case of fraud within the meaning of Section 18, Limitation Act, this objection may not be serious as the question of law and such a question of the applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final court of appeal. In the same connection, their Lordships also referred to the observations of Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh 1892 App Cas 473 which were as follows: When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the courts below. In the present case, it falls within the second group, because the Defendant No. 1s present stand as a licensee under the Easements Act cannot be disposed of without going into facts in considering which this Court is placed in a much less advantageous position than the courts below. In the present case, it falls within the second group, because the Defendant No. 1s present stand as a licensee under the Easements Act cannot be disposed of without going into facts in considering which this Court is placed in a much less advantageous position than the courts below. In these circumstances, I cannot accept the Defendant-Appellant's present stand as a licensee at this stage. This contention, therefore, fails. 7. Therefore, the position is that on the materials before me, I am satisfied that the Plaintiff purchased the suit land from Nilambar Panigrahi, father of Defendant No. 2, accompanied by delivery of possession which is sufficient to establish his title to the suit land. Furthermore, the Defendant No. 1 is bound by ext. 3, the Chuktipatra under which he is certainly to give up the land whenever required by the Plaintiff, and therefore, he cannot resist the claim of the Plaintiff for possession of the land as prayed for by the Plaintiff in the suit. 8. The result, therefore, is that the judgment of the lower appellate court in favour of the Plaintiff is maintained. The appeal is dismissed. There will be no order as to costs of this Court. Appeal Dismissed. Final Result : Dismissed