Ram Saroop Gupta v. Bishan Narain Inter College — 1978 DIGILAW 209 (ALL)

JUDGMENT T. S. Misra, J.:- This first appeal preferred by the plaintiff is directed against the judgment and decree passed by the additional Civil Judge, Lucknow where by the plaintiff's suit for possession of the property in question was dismissed with costs. The first appeal came up for hearing before a Bench of two Judges. Both the learned Judges wrote separate judgment. Hon. D. N. Jha, J. was of the opinion that the appeal be dismissed where as Hon'ble K. S. Verma, J. opined that the appeal be allowed and the decree passed by the trial court be set aside and the suit of the plaintiff be decreed. There being thus a difference of opinion, the appeal was ordered to be laid before a third Judge. That is how the appeal has come up before me. The facts giving rise to this appeal have been set out in detail in both the judgment referred to herein above. I would, therefore, briefly state the facts which are relevant to the inquiry. 2. The plaintiff had purchased the premises situate at Newal Kishore Road, Lucknow, known as Portion II of the I.D.T. Block Houses, Hazratganj, Lucknow From Raja Ram Kumar Bhargava and others per sale deed dated 27th June, 1961. The boundaries of the said premises are mentioned in paragraph I of the plaint. In para 4 of the plaint it is stated that a portion of the said premises was in occupation of the defendants as licences under the permission of Raja Ram Kumar Bhargava and others, the previous owners of the said building. Para 5 of the plaint states that as the plaintiff had purchased the said premises for his personal use and residence, he revoked the said licence of the defendants by registered A. D. notice requesting them to vacate the premises and hand over possession of the same to him but inspite of service of the said notice the premises in suit were not vacated. In paras 2 and 3 of the plaint the plaintiff also alleged that Bishun Narain inter College, the defendant no. 1, is financed and administered by the Progressive Education Society, a duly registered body and that the said institution is managed by a managing Committee formed of the defendants 2 to 9. 2A. In paras 2 and 3 of the plaint the plaintiff also alleged that Bishun Narain inter College, the defendant no. 1, is financed and administered by the Progressive Education Society, a duly registered body and that the said institution is managed by a managing Committee formed of the defendants 2 to 9. 2A. On 19th July, 1962 an application was moved on behalf of Sarvsri Brahma Prakash Vaish, Jagannath Prasad Dixit and Badri Vishal Misra for being impleaded as defendants in the suit alleging that in the building in question Bishun Narain Basic School is being run of which Brahma Prakash Vaish is the Manager where as Jagannath Prasad Dixit is Headmaster and Badri Vishal Misra is a Chairman and also asserting that the said building is that of the said school and not of the plaintiff. The learned Civil Judge passed an order on 27th September, 1962 requiring the said applicants to submit a list of the members of the Managing Committee of the School. The plaintiff filed an objection to the said application on 6th August, 1962 where in it was alleged, inter alia, that in the building in question Bishun Narain School, a Branch of Bishun Narain Inter College was being run under the administration of the Progressive Education society, defendant no. 10. It seems that an application was also moved by seven persons claiming to be the members of managing Committee of Bishun Narain Basic School. The learned Civil Judge by his order dated 12th October, 1962 allowed the application 25C read with 36C and ordered that the names of seven persons given in 36-C be added in the plaint. He also ordered that the newly added defendants should file their written statement by 14th November, 1962. The plaint was accordingly amended and the seven persons were impleaded as defendants 11 to 17. 3. The defendant no. 1 filed a written-statement dated 22nd August, 1963. The defendant no. 4 filed a separate written-statement stating that the institution known as Bishun Narain School has been in occupation of the premises in question for the last several years whereas the defendants l l to 17 filed a common separate written statement. The defendant no. 1 pleaded that it had been in occupation of the premises for more than 25 years that the said premises had now been duly allotted to the defendant no. The defendant no. 1 pleaded that it had been in occupation of the premises for more than 25 years that the said premises had now been duly allotted to the defendant no. 1 through Rani Ram Kumar Bhargava, President and the said defendant is continuing in occupation of the building under the allotment order aforesaid ; hence the suit was not maintainable against it in view of section 3 of U. P. Act III of 1947. 4. The defendants 11 to 17 pleaded, inter alia, that except a small portion on the east which is in possession of a tenant the premises described in para 1 of the plaint is in possession of Bishun Narain Basic School, that the said premises were given away permanently by Raja Ram Kumar Bhargava free of rent as far back as 1941 and since then the school has been in occupation and possession thereof, that under the said grant the school became the full owner of the premises in suit, then if, however, it was found that the School did not become the full owner of the premises in suit, it became a permanent rent free grantee thereof, that the school is not a licensee of the property in suit as alleged by the plaintiff in as much as it has a complex right which cannot be defeated by the alleged sale in favour of the plaintiff, that the school had made pucca constructions and had been making various substantial additions and alterations in the building without any objection from any quarter whatsoever, that the school got electric fittings done and electric connection in the rooms and had been making exhaustive repairs to the building, and that the school had been letting out portion of the premises to hawkers and other persons in order to argument its income. In para 18 of the written statement it was, however, asserted in the alternative that even if the School is a licensee of the premises in suit as mentioned in the Plaintiff's sale deed, the licence is coupled with the grant and, in any case, it is a permanent and irrevocable licence in favour of the School and the same could not be revoked by the plaintiff and that no notice revoking the licence had been served by the plaintiff on the said defendants. 5. 5. The plaintiff filed his replication to the written statement filed by the defendants 11 to 17 reiterating that the defendants were licensees in respect of the premises in suit and that the licence was neither permanent nor irrevoable nor is it a grant. 6. On the pleadings of the parties the trial Court framed the following issues : 1. Whether the plaintiff is an owner of the property in suit ? 2. Whether the defendants are licensees of the building (property) in suit ? If so, has the licence been validly revoked ? 3. Whether the premises in question were validly allotted by the Rent Control and Eviction Officer to the defendant no. I ? If so, its effect. 4. Whether the licence granted by Raja Ram Kumar Bhargava to the B. N. School was irrevocable ? If so, its effect ? 5. Whether the building in suit was donated by Raja Ram Kumar Bhargave to the B. N. School and whether its ownership was transferred by him to the B. N. School ? If so, its effect ? 6. Whether the Licence in question is coupled with a grant and whether the same was permanent ? If so, its effect ? 7. Whether the B. N. School has made the constructions and Additions to the building in suit as pleaded in paras 11 and 13 and 16 of their written-statement ? If so, its effect ? 8. To what relief or reliefs, if any, is the plaintiff entitled ? 7. It appears that the plaintiff had thereafter filed an application 15-C before the trial court for deletion of issue no. 2 as being redundant whereupon the trial court passed the following order :- "115-C by plaintiff for deletion of issue no 2 as redundant. Hard parties counsel at length. The fact that defendant is a licensee is not denied. Hence the first part of issue no. 2 becomes redundant as there is no contest on the point and issue no. 2 is refrained as below : Issue No. 2. Has the licence been validly revoked." 8. Thereafter the defendants 11 to 17 moved an application for amendment of their written statement for incorporating para 11-A therein. That application was allowed by the trial court on 18th August, 1964 and the said written-statement was accordingly amended. 2 is refrained as below : Issue No. 2. Has the licence been validly revoked." 8. Thereafter the defendants 11 to 17 moved an application for amendment of their written statement for incorporating para 11-A therein. That application was allowed by the trial court on 18th August, 1964 and the said written-statement was accordingly amended. The plaintiff then filed his replication dated 28th August, 1964 giving reply to the averments of para 11-A of the amended written-statement and riterated that the defendants were occupying the said building as licensees. 9. Parties to the suit adduced documentary and oral evidence in support of their cases. On issues nos. 1 and 5 the trial court found that Raja Ram Kumar Bhargava was not the sole owner of the property in suit and it belonged to joint Hindu family of which he was the Karta or manager No title to the ownership of the property in suit passed to B. N. School or any of the defendants in the absence of aduly executed and registered deed. Raja Ram Kumar Bhargava, however, sold that property to the plaintiff. The plaintiff was accordingly held to be the owner of the property in suit and issue no. 1 was decided accordingly. The issue no. 5 was, however, decided in the negative. With regard to issue no. 3 it was found by the court below that the allotment of the building could not be made as the building was neither vacant nor was about to fall vacant ; hence the allotment order was illegal and invalid. The transaction by which possession of the building was given to the defendants amounted to a licence but there was nothing on the record to show that the licence was coupled with the grant, hence it could not be said to be irrevocable under section t0 (a) of the Easements Act. The trial Court, however, found that the defendants had carried out permanent construction on the premises in suit in pursuance of the licence and acting upon it had incurred expenses in respect of the same ; hence their licence was irrevocable under section 60 (b) of the Act. The plaintiff was, therefore, not entitled to revoke the licence. On these findings the court below dismissed the suit. 10. The plaintiff was, therefore, not entitled to revoke the licence. On these findings the court below dismissed the suit. 10. Before I proposed to examine the contentions raised on behalf of the appellant as also on behalf of the defendants 11 to 17. I may refer to the submission made on behalf of the defendant no. 1 with regard to the maintainability of the suit. It was urged on behalf to the defendant no. 1 that the premises having been allotted to it under the provisions of the U. P. (Temporary) Control of Rent and Eviction Act III of 1947, the defendant no. 1 was occupying the said building as tenant thereof; hence was not liable to be evicted therefrom in these proceedings. This contention did not find favour with the trial court nor with Brother Jha and Brother Verma. The court below had found that the allotment order could not in the circumstances validly be made and the order was without jurisdiction and void. Brother Jha and Brother Verma have also held likewise. I have heard Sri S C. Mathur on the point at great length and I find myself unable to accept his contention. I am in entire agreement with the views expressed by Brother Jha and Brother Verma on the point and I see no reason to interfere with the findings of the court below on the point. 11. Brother Jha has held that on the facts of the case the licence is irrevocable under the provisions of section 60 (b) of the Easements Act (herein- after called the Act) whereas Brother Verma, J. has held to the contrary. The plaintiff had come with the allegations that the defendants were occupying the building as licensees and that he had revoked that licence by a notice. The defendants 11 to 17 while contesting the suit pleaded, inter alia, that even if it was established that their possession over the building in question was as licensees. the licence was permanent and irrevocable. 12. Sri Jagdish Swaroop, the learned counsel for the plaintiff-appellant, submitted that the licence was revocable by Raja Ram Kumar Bhargave and others, the erstwhile owners of the building ; hence it was also revocable by the plaintiff who has purchased the property from them. the licence was permanent and irrevocable. 12. Sri Jagdish Swaroop, the learned counsel for the plaintiff-appellant, submitted that the licence was revocable by Raja Ram Kumar Bhargave and others, the erstwhile owners of the building ; hence it was also revocable by the plaintiff who has purchased the property from them. However, even if the licence was not revocable by Raja Kam Kumar Bhargava and others, the same could be revoked by the plaintiff who was a transferee of the building in view of the provisions of section 59 of the Act. I find no force in the contention. The provisions of section 59 of the Act indicate that the transferee would not be in a worse position than the transferor ; hence if the grantor of the licence does not revoke the licence, it would not mean that the transferee cannot do so. But section 59 of the Act does not confer on the transferee any better or higher rights than those possessed by his transferor. The effect of the transfer is not ipso facto to put end to all previous licences. If the grantor of the licence could not revoke the licence because it had become irrevocable under section 60 of the Act the transferee could not revoke that licence. There is ample authority for this proposition. A Division Bench of This Court held in the case of Ras Behari Lal v. Akhai Kumar and others, ILR 37 Allahabad 91 that the rule laid down by section 59 of the Indian Easements Act is not independent of that laid down by section 60 and it does not confer upon the transferee any higher rights than those possessed by the transferor. The view expressed in Ras Behari Lal's case (Supra) was followed by the Oudh Chief Court in Thakur Prasad v. J Thomkinsson, air 1927 Oudh 206 and Faqurey Main and others v. Baijnath, AIR 1931 Oudh 364 to the same effect is the decision of the Madhya Pradesh High Court in Mannoolal Balchand v. Kaluram Gulabchand, AIR 1958 Madhya Pradesh 343. 13. The Points which now survive for consideration in this appeal are, therefore these : (1) Whether there was a licence in favour of the defendants or any of them ? (2) Whether that Licence was revocable or irrevocable ? Point No. 1 14. On 20th March, 1964 the trial court had framed issue no. 13. The Points which now survive for consideration in this appeal are, therefore these : (1) Whether there was a licence in favour of the defendants or any of them ? (2) Whether that Licence was revocable or irrevocable ? Point No. 1 14. On 20th March, 1964 the trial court had framed issue no. 2 in the following terms : Whether the defendants are licensees of the building (Property in suit? If so, has the licence been validly revoked ? On the same day the statement of Pearey Lal Pandey, Principle of defendant no.1, was recorded by the trial court under Order 10 Rule 2. C.P.C. Pearey Lal Pandey stated that prior to the allotment of the building in suit infavour of the B. N. Inter College the said institution which was formerly known as Narhi Middle School and than as B. N. School was in its possession on the basis of permission granted by Raja Ram Kumar Bhargava This permission was given in 1939 or 1940 to Narhi Middle School. The statement of the plaintiff Ram Swaroop Gupta was also recorded on that date under Order 10 Rule 2, C P.C. He had stated that be did not know as to when Raja Ram Kumar Bhargava had granted licence to B. N. School or that to whom the licence was granted on behalf of the school. He had further stated that he did not know as to whether the licence was ever granted to the progressive Education Society. The case of the plaintiff as set out in para 4 of the plaint was that a portion of the premises described and detailed in para 1 of the plaint was in occupation of the defendants as licensees under the permission of Raja Ram Kumar Bhargava and others, the previous owners of the said building. Originally, the Suit was instituted against the defendants 1 to 10. Thus the said averment made in pars 4 of the plaint related to the defendants 1 to 10 and, according to the plaintiff the defendants 1 to 10 were in occupation of the building in question as licensees. Subsequently, the defendant 11 to 17 were also impleaded in the suit. These defendants 11 to 17 filed their written Statement on 14th November, 1962. Subsequently, the defendant 11 to 17 were also impleaded in the suit. These defendants 11 to 17 filed their written Statement on 14th November, 1962. In paragraph 4 of that written statement it was pleaded by the defendants 11 to 17 that except a small portion on the east, which is in possession of a tenant, the rest of the premises described in para I of the plaint are in possession of the B. N. School, of which the defendant no. I I is the Manager, defendant no. 12 is the Headmaster, defendant no. 13 is the Chairman of the Managing Committee and defendants nos. 14 to 17 are other members of the Managing Committee of the said school. They further stated that it was wrong to say that the premises in suit were in the occupation of the defendants as originally impleaded, namely defendants 1 to 10 as licensees. Paragraphs 11-A and 18 of the written statement of the defendants 11 to 17 read as follows : "11-A. That under the grant aforementioned the School became the full owner of the premises in suit. If, however, it be-found that the School did not become the full owner of the premises in the suit, it at least became a permanent free grantee of the said premises. The School has an interest in the property in suit ; it is not only occupying it permanently free of rent which is the permanent contribution of Raja Ram Kumar Bhargava to the cause of the School, but it also augments its income from the said property and derives profits therefrom. The School is not a licensee of the property in suit as alleged by the plaintiff. It has a complex right which cannot be defeated by the alleged sale in favour of the plaintiff." "18. That even if the school is a licensee of the premises in suit as mentioned in the plaintiffs sale deed, the licence is coupled with a grant and in any case it is a permanent and irrevocable licence in favour of the school and the same cannot be revoked by the plaintiff." 15. The plaintiff filed two replications to the written-statement of the defendants 11 to 17. The plaintiff filed two replications to the written-statement of the defendants 11 to 17. In his first replication dated 28th February, 1963 it was pleaded by the plaintiff that both the institutions, namely, B. N. Inter College as Bishun Narain Basic School are run by their parent body, the Progressive Education Society, the defendant no. 10. In para 11 of that replication it was averred that it was wrong to say that the permissive possession of the defendants including Bishun Narain School over the portion of the building in suit amounted to a grant etc , and not a simple licence only In paragraph B of the- replication it was stated by the plaintiff that the defendants are licensees in respect of the premises in suit. The said licence was neither permanent nor irrevocable nor is it a grant. In fact the said licence now stands revoked and the defendants are simple trespassers. It is to be noticed that in this paragraph the plaintiff did not confine his averment to the defendants 1 to 10 only. In fact the said replication was filed in reply to the averments made by the defendants 11 to 17 in their written statements. The plaintiff was categorical on the point that the defendants, i e. all the defendants 1 to 17 were licencees in respect of the premises in suit. Again, in para 23 of that replication the plaintiff without reservation stated that the defendants including their predecessors-in-interest were permitted in 1938 or so to occupy a portion of the building in suit for purposes of running Bishun Narain School. Paragraph 25 of the replication is further revealing on the point. It was stated therein that the said Bishun Narain School developed into an Inter College and according to rules and regulations prescribed by law, the Bishun Narain Inter College had to be split up into two separate institutions to be run by the same parent body, namely, the Progressive Education Society defendant no. 10. They were named; (1) Bishun Narain Inter College, and (2) Bishun Narain Basic School. In para 26 it was stated that the property in suit is in occupation and possession of all the defendants and not only in possession of the defendants nos. 11 to 17 as alleged in the written-statement. 10. They were named; (1) Bishun Narain Inter College, and (2) Bishun Narain Basic School. In para 26 it was stated that the property in suit is in occupation and possession of all the defendants and not only in possession of the defendants nos. 11 to 17 as alleged in the written-statement. The plaintiff in his second replication dated 28th August, 1964, which was filed in reply to the averments made in para 11-A of the amended written-statement of the defendants 11 to 17 reiterated that the defendants are licensees Obviously the case of the plaintiff throughout has been that the defendants are the licensees of the premises, Initially the plaintiff impleaded the defendants 1 to 10 alleging that they were licensees of the said premises. Thereafter on the impleadment of the defendants 11 to 17 and on their filing the written-statement the plaintiff reiterated in the aforesaid two replications that the defendants are the licensees. Thus, according to the plaintiff, all the defendants 1 to 17 were the licensees. This position was maintained by the plaintiff as would be obvious from his application 115-C which was filed by him for deletion of issue no. 2 as being redundant. After hearing, the trial court made the following observation and ordered on the said application : "The fact that defendant is a licensee is not denied. Hence the first part of issue no. 2 becomes redundant as there is no contest on the point and issue no. 2 re-framed as below : Issue No. 2 Has the licence been validly revoked." 16. Obviously as to whether defendants were occupying the premises in question as licensees did not remain a matter of controversy before the trial court and issue no 2 was also accordingly re-framed. It is, therefore, not open to the plaintiff in this appeal to take a different stand on the question as to who was the licensee. I have already held above that the defendant no. 1 did not hold the premises as a lessee and the allotment order No. A-58/62 did not confer on the defendant no. 1 any lease rights in respect of the said premises. There is nothing on the record to show that the said premises were transferred by Raja Ram Kumar Bhargava and others, the erstwhile owners of the said premises, to the defendants or any of them by way of gift. 1 any lease rights in respect of the said premises. There is nothing on the record to show that the said premises were transferred by Raja Ram Kumar Bhargava and others, the erstwhile owners of the said premises, to the defendants or any of them by way of gift. The property is admittedly of the value of more that Rs. 100/- It was not the case of the defendants that Raja Ram Kumar Bhargava had executed any registered deed of gift in favour of the defendants or any of them transferring ownership of the property to them. The position of the defendants with respect to the said premises was, therefore, that of licensees. Initially there was Narhi Middle School which was run in the said premises. Later on, it was converted into B. N. School. There after it came to be known B N. Higher Secondary School and subsequently it became an Intermediate College. Then its primary section was separated and named as B. N. School or Section. Thus both B. N. Inter College and B. N. Basic School are infact successors-in-interest of the B, N. School or Narhi Middle School. Hence the position of both these institution is the same as that of the original licensee. It has come in evidence that the classes of B. N. School are held in the same premises. Similarly, the classes of B. N. Inter College are also held in the same premises. Thus both these institutions are in possession as licensees. It must, therefore, be held that the defendants I to 17 are in possession of the said building as licensees. Point No. 2 17. For the appellant it was urged that the aforesaid licence in favour of the defendants pertaining to the building in question was revocable and was infact revoked by the plaintiff by notices on 4th November, 1961 and 12th January, 1962 when the period allowed by the notices revoking the licence had expired. The respondents contested this contention and urged that the licence was irrevocable under Section 60 (b) of the Indian Easements Act. The learned counsel for the appellant while disputing this contention submitted that no foundation was laid in pleadings for the contention that the licence was irrevocable under section 60 (b) of the Indian Easements Act. The respondents contested this contention and urged that the licence was irrevocable under Section 60 (b) of the Indian Easements Act. The learned counsel for the appellant while disputing this contention submitted that no foundation was laid in pleadings for the contention that the licence was irrevocable under section 60 (b) of the Indian Easements Act. In this connection it was urged that the pleadings of the defendants being silent on the point, any evidence in respect thereof should not be taken into consideration and the defendants should not be permitted to urge anything beyond their pleadings. The learned Counsel for the appellant referred me to various paragraphs of the defendants for point out that the defendants had not pleaded that the licenced was irrevocable under Section 60(b) of the Act. 18. True it, is, that no party to the suit should be permitted to go beyond his pleadings and that no fact should be allowed to be proved which has not been pleaded. The fairness of trial demands that no party should be taken by surprise and he must know the case he has to meet. It is, however, equally settled that the courts would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or in artistically the plaint may be worded. (see Kedar Lal Seal and another v. Hira Lal Seals, AIR 1952 Supreme Court 47. Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. While applying this principle to the facts of a case the court has to bear in mind that consideration of forms cannot override the legitimate considerations of substance. It was laid down in Bhagwati Prasad v. Chandramaul, AIR 1966 Supreme Court 735. While applying this principle to the facts of a case the court has to bear in mind that consideration of forms cannot override the legitimate considerations of substance. It was laid down in Bhagwati Prasad v. Chandramaul, AIR 1966 Supreme Court 735. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is that parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a difficult matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." So, in construing a pleading in this country the court should not look merely to its form, or pick out from it isolated words or sentences ; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter. Pleadings have to be interpreted not with formalistice rigour but with latitude or awareness of low legal literacy or poor people. Pleadings have to be interpreted not with formalistice rigour but with latitude or awareness of low legal literacy or poor people. Pleadings are at times loosely drafted and the court should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. 19. The pleadings of the parties may not (now) be examined in the light of the above principles. In paragraph 10 of the written-statements of the defendant 11 to 17 it was stated that the premises in suit which are admittedly in the possession of Bishun Narain Basic School were given away permanently by its owner Raja Ram Kumar Bhargava, to the School free of rent as far back as 1941 and since then the school has been in occupation and possession thereof for more than twenty years. In para 11-A of the written Statement already quoted in extenso, the defendants 11 to 17 pleaded that under the school became the full owner of the premises in suit. However, if it was found that the school did not become the full owner thereof, It at least became a permanent rent free grantee of the said premises and it has an interest in the property in suit and that the school was not a licenses of the property as alleged by the plaintiff : rather it has a complex right which cannot be defeated by the alleged sale in favour of the plaintiff. In paragraph 12, 13, 14, 15, and 16 of the said written-statement it was pleaded, inter alia, that the school had made pucca constructions and had been making various substantial additions and alterations in the building without any objection from any quarter what soever during the long period of more than twenty years, and had made three pucca class rooms on a part of the open land on the eastern side and that the school had carried out exhaustive repairs and other additions and alterations in the building. Then in para 18 of the written statement, also quoted in extenso herein above, it was pleaded by the defendants I1 to 17 that the school is a licensee of the premises in suit. The licence is coupled with a grant and, in any case, it is a permanent and irrevocable licence in favour of the school and the same cannot be revoked by the plaintiff. The licence is coupled with a grant and, in any case, it is a permanent and irrevocable licence in favour of the school and the same cannot be revoked by the plaintiff. The said defendants had thus pleaded in the alternative : (1) that the licence is coupled with a grant ; (2) that in any case, it is a permanent and irrevocable licence ; and (3) that the licence cannot be revoked by the plaintiff. The issues nos. 4, 6 and 7 which were in the following terms covered these points : (4) whether the licence granted by Raja Ram Kumar Bhargava to the B. N. School was irrevocable ? If so, its effect ? (5) whether the licence in question is coupled with a grant and whether the same was permanent ? If so, its effect ? (6) Whether the B N. School has made the constructions and additions to the building in suit as pleaded in para 11 and 13 and 17 of their written-statement ? If, So, its effect ? The plaintiff, in my view knew that the question as to whether the licence was irrevocable was definitely involved in the trial. Both the parties led evidence about it. No doubt, the defendants did not allege in their written-statement that the licence was irrevocable under section 60 (b) of the Indian Easements Act but they had at the same time pleaded that the licence was coupled with a grant and that in any event the licence was permanent and irrevocable and was under no circumstances revocable at the instance of the plaintiff. In the circumstances it is difficult to accept that the defendants should not be permitted to contend that the licence was irrevocable. The defendants having asserted in the written- statement that the licence was irrevocable and definite issues having been framed on the plaint, it cannot be said that the plaintiff would be prejudiced in any manner if the plea of irrevocability is allowed to be urged. 20. With this background I shall now proceed to examine whether the licence was irrevocable. 21. 20. With this background I shall now proceed to examine whether the licence was irrevocable. 21. A licence as defined in section 52 of the Indian Easements Act (hereinafter called the Act is a right granted by one person to another 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 grant or a licence may be express or implied from the conduct of the grantor (section 54). A licence is revocable at the will of the grantor and the revocation may be express or implied. Section 60 of the Act enumerates the conditions in which a licence becomes irrevocable. The licence is irrevocable if (a) it is coupled with a transfer of property and such right is in force ; (b) the licence, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution. Under Clause (b) of Section 60 a licence becomes irrevocable if a work of permanent character has been executed by the licensee in pursuance of the licence and the licensee had incurred expenses in the execution of the work. Sinking a well and erecting compound wall can be considered to be works of a permanent character within the meaning of section 60. Jagat Singh and others v. District Board, Amritsar, AIR 1940 Lahore 18. A Kachcha thatched house may be a work of permanent character and the fact that the thatch is renewed from time to time does not make it a work of a temporary character. Unless the licence is shown to have been granted under restrictive conditions of the nature set up, no revocation can be allowed to the prejudice of the licensees by whom a permanent structure has been built. Amjad Khan and others v. Shafiuddin Khan and others, AIR 1925 Allahabad 203. The words "acting upon the licence" were constructed by the Privy Council in Gujarat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd., AIR 1936 P.C. 77 to mean "acting upon a right granted to do upon the land of the grantor something which would be unlawful in the absence of such right". The words "acting upon the licence" were constructed by the Privy Council in Gujarat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd., AIR 1936 P.C. 77 to mean "acting upon a right granted to do upon the land of the grantor something which would be unlawful in the absence of such right". The words "act upon" mean" act in accordance with "or" to do something in accordance with." A licence would become irrevocable if the licensee executes a work of permanent character in accordance with or in pursuance of or by virtue of the right granted to the licensee by the grantor to do upon the land of the grantor something which would be unlawful in the absence of such right. A licence when acted upon by actually executing a work of permanent character becomes irrevocable. The court will protect a licensee who takes possession of land or building under an expectation created or encouraged by the owner that he will have a right to do or continue to do in or upon that land or building something which would, in the absence of such right, be unlawful and with the owners knowledge and without objection by him constructs a work of a permanent character and expends money or it. A licence is indubitably a privilege to do some thing on the permission of another person. Such a licence is irrevocable if it falls within the ambit of clause (a) or clause (b) of section 60 of the Act. 22. A licence is not an easement or profit which is an interest in land. It is also district from a lease. Both easement and lease are, therefore, excluded in considering licencees (section 52 of the Act). Further a licence may be gratuitous or it may be granted in furtherance of a contract for valuable consideration The peculiarly of a mere licence, whether gratuitous or for valuable consideration at common law was that it could be revoked at any time. As Viscount Simon pointed out in Winter Garden Theatre (London) Ltd. v. Millenniam Productions Limited, (1948) A.C. 173 (H.L.E.). since the effect of granting a licence is to prevent the licensee from being regarded as a trespasser, then when the licence is revoked, the licensee must be allowed a reasonable time to withdraw, Section 63 of the Indian Easement Act speaks in the same terms. since the effect of granting a licence is to prevent the licensee from being regarded as a trespasser, then when the licence is revoked, the licensee must be allowed a reasonable time to withdraw, Section 63 of the Indian Easement Act speaks in the same terms. On the other hand, Vaughan, C. J. points out that a licence may be coupled with an interest, e.g., the licence to enter may be a necessary incident to the enjoyment or destruction of something situated on the land, which has also been granted to the licensee. In such case, provided that the interest has been created in the proper manner prescribed by law for that interest, the licence which is ancillary to it is irrevocable, even though granted informally. Clause (a) of Section 60 of the Act says likewise. It provides that a licence is irrevocable if it is coupled with a transfer of property and such transfer is in force. 23. In Wood v. Leadbitter, (1945) 13 M and V 838, 844-845 the common law principle was express by Alderson, B, As follows "A mere license is revocable but that which is called a license is often something more than a license ; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident." 24. In Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd. Viscound Simon suggested that the decision in Wood v. Leabditter turned on the old system of pleading. The action was in tort for assault and false imprisonment, and it was not open to be the plaintiff to join a cause of action or breach of contract to the action in tort. Collins, J. in Kerrison v. Smith, (1897) 2. q.b., 445 had made the same point. The only case prior to Wood v. Leadbitter which seems in conflict which the principles there expressed is Taylers v. Waters, (1916) 7, Taunt, 374. This decision was commented upon in Wood v. Leadbitter and Hewlins v. Shippam, (1826) 5 B. and C. 222. 25. Dealing with the attitude of equity as between the original parties to a licence, this received extended consideration in Hurst v. Picture Theatres Ltd., (1915) 1 K.B. 1 (cases. This decision was commented upon in Wood v. Leadbitter and Hewlins v. Shippam, (1826) 5 B. and C. 222. 25. Dealing with the attitude of equity as between the original parties to a licence, this received extended consideration in Hurst v. Picture Theatres Ltd., (1915) 1 K.B. 1 (cases. 15.) Channell, J. was of opinion that Wood v. Leadbitter was no longer good law and held that a visitor to the theatre who had paid for his seat had a right to retain it so long as the performance lasted, provided he behaved quietly and complied with the regulations laid down by the management. The decision of Channel, J. was affirmed by the court of appeal. Buckley, L. J. pointed out that Wood v. Leadbitter was a common law case. Before the judicature Acts, he contended, equity would have applied a different principle and since 1975 the equitable rule has prevailed. On this supposition Buckley, L. J. observed that since the Judicature Acts, a court being bound to apply equitable doctrines, Wood v. Leadbitter is a decision which cannot now be applied in its entirety in a court which is bound to give effect to equitable considerations, 26. Some writers have been opposed to the decision in Hurst v. Picture Theatres Ltd., (1915) 1 K.B. 1 (cases. 15.). It has been accepted, however, by Luck J In British Actors film Co. Ltd. v. Glover, (1918) 1 K.B. 299, 307 and by Mccardie, J., in said v. Butt, (1920) 3 K.B. 497 499. The decision may be said to have established the principle that a mere licence, granted for value, is irrevocable same in accordance with its own express or implied terms, and, accordingly the authority of Wood v. Leadbitter, is now completely gone, or else is confined within exceedingly narrow limits. In a number of recent cases, however, it has been show that, at least in the case of licences to occupy land, equity is prepared, in appropriate circumstances, to grant and a injunction against third parties who seek to disregard the licence. In Errington v. Errington, (1952) 1 K.B. 290 C.A. a contractual licensee in occupation of a house successfully resisted an action brought by the devisee of the licensor to evict her. In Errington v. Errington, (1952) 1 K.B. 290 C.A. a contractual licensee in occupation of a house successfully resisted an action brought by the devisee of the licensor to evict her. In Ferris v. Weaven, (1952) 2 All England Reporter 233 and Street v. Denham, (1954) 1 W.L.R. 624 possession was denied to a collusive purchaser of the property over which the vendor had created an occupational licence. The limits and juridical consequences of this equitable jurisdiction have yet to be defined, but these cases illustrate the creative powers of equity since 1875). 27. In our country, however, the law relating to licences is codified. Chapter VI of the Indian Easements Act, 1882 deals with that law. Section 52 of the Act defines licence. Section 53 points out as to who may grant a licence. Under Section 54 the grant of licence may be express or implied. Section 56 deals with the situation when licence is transferable. Section 57 requires a grantor to disclose the defects in the property affected by the licence and section 58 imposes a duty upon the grantor not to render the property unsafe. Section 59 points out as to when the transferee is not bound by the licence. Section 60 provides that a licence maybe revoked by the grantor and it also deals with the situation when the licence may be express or implied as laid down in section 61 of the Act. Section 62 points out as to when the licence would be deemed to be revoked. Section 63 deals with a right of a licensee on revocation of the licence. Section 64 stipulates that where a licence has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the licence, the right for which he contracted, he is entitled to recover compensation from the grantor. 28. The Indian law pertaining to licences being thus codified, the common law principles as stated herein above may not be of much relevance. 29. For the contesting respondents it was submitted that the instant case was covered by clause (b) of section 60 of the Act. 28. The Indian law pertaining to licences being thus codified, the common law principles as stated herein above may not be of much relevance. 29. For the contesting respondents it was submitted that the instant case was covered by clause (b) of section 60 of the Act. To bring the case within the ambit of section 60 (b) it was to be made out that the licensee has executed a work of permanent character in pursuance of or in accordance with or by virtue of the right to do or continue to do in or upon the property in question of the grantor something which would, in the absence of such right, be unlawful and incurred expenses in execution of that work. It has come in evidence that certain constructions of permanent character were made in the premises after the licence was granted. Raja Ram Kumar Bhargava and others, the erstwhile owners of the property in question, had, however, stated that those constructions were made by them and not by the licensees. The case of the licensees, however, as set out in paragraphs 12 to 16 of the written-statement of the defendants 11 to 17. was that the school. Since its occupation of the said premises from 1941 had made pucca constructions and had been making various substantial additions and alterations in the building without any objection from any quarter whatsoever during this long period of more than twenty years, that the school constructed three pucca class rooms about 14 years back on a part of the open land on the eastern side, that the school got electric fittings done electric connections in the said three rooms, that the school had also been making substantial additions in the building to suit its needs such as urinals, lavatories water pipes etc., and that the school had also been making exhaustive repairs to the building such as re-plastering, re-roofing, reflooring etc., with cement many of the rooms in the building. The constructions are obviously of permanent character. The trial court on appreciation of the evidence found that the constructions had been made by the defendants and not by Raja Ram Kumar Bhargava. I have gone through the evidence on the point and I am in agreement with the court below that the constructions were not made by Raja Ram Kumar Bhargava but by the defendants-licensees. The trial court on appreciation of the evidence found that the constructions had been made by the defendants and not by Raja Ram Kumar Bhargava. I have gone through the evidence on the point and I am in agreement with the court below that the constructions were not made by Raja Ram Kumar Bhargava but by the defendants-licensees. Being in general agreement with the reasoning given by the trial court below in that behalf. Ganga Prasad, Assistant teacher in B. N. Inter College, D.W. 1, Shankar Dutt Thakur another Teacher in the College D.W. 2, Bhola mason D.W. 3, as also Jagannath Prasad Dixit Head Master of B.N. Basic School D.W. 4 had stated on oath that the constructions on the premises in question comprising the three rooms on the eastern side, the bath room and urinal were made by B.N. Basic School. On the other hand, Raja Ram Kumar Bhargava deposed that the entire constructions had been got made by him and he had been carrying out the repairs of the building. He also stated that there is a Trust out of which all these expenses had been incurred. No account books of the Trust filed in support of his statement though the trust is said to have maintained accounts. He also did not seem to have any personal knowledge of the fact. On the other hand, the defendants filed cash memos, receipt books Ext. B-7 and Ext. B-8, registers Ext. B-9 and Ext. B-10 and also the passbook of Bishan Narain Higher Secondary School since 3rd November, 1948 to substantiate their contention that the constructions and the repairs had been carried out by the defendants and the donations were raised for the same. The evidence adduced by the defendants in this behalf is, therefore, preferable. The trial court was therefore, correct in holding that the defendants had executed works of permanent character on the premises in suit and incurred expenses in the execution of the works. The fact that the defendants had also carried out the repairs in the premises is, however, not of much consequence while considering the applicability of clause (b) of section 60 of the Act inasmuch as the licensees are responsible for necessary repairs. 30. The fact that the defendants had also carried out the repairs in the premises is, however, not of much consequence while considering the applicability of clause (b) of section 60 of the Act inasmuch as the licensees are responsible for necessary repairs. 30. It has now to be seen as to whether the permanent structures had been built by the defendant "acting upon the licence." The licence granted to the defendants by Raja Ram Kumar Bhargava and others was to occupy the premises in question and use it for the purposes of the school, i.e., for the purpose of imparting education therein. On the facts proved in the case, this permission was in the nature of a licence as defined in section 52 of the Indian Easements Act. Raja Ram Kumar Bhargava had written a letter to Rai Bahadur Chuni Lal Sahney, Inspector of Schools on 26th November, 1941 Stating that he had given his building in question free of rent to the Narhi Middle School and reiterating that the premises at present in the occupation of the school belonged to him and he had given them away to the school free of rent which may be considered his permanent contribution to the cause of the school. Obviously, there was an implied promise by Raja Ram Kumar Bhargava that the school shall remain in occupation of the building permanently so long as it was used for the purpose of imparting education. The grantor of the licence cannot be permitted to eject the licensee in breach of the promise on which the licensee has acted. The licence, as pointed out herein above, was to occupy the building and use it for running school therein, i e. for imparting education therein. A licence granted to occupy a premises to impart education therein is wide enough to include licence, for the achievement of that purpose, to construct a further building in the premises. In furtherance of the purpose and in pursuance of the right the defendants accordingly made certain constructions in the building for running the school therein. No restrictive conditions had been imposed in the licence. On the other hand, Raja Ram Kumar Bhargava had stated that he had allowed the building to be used by the school free of rent and that it was his permanent contribution to the cause of the school. No restrictive conditions had been imposed in the licence. On the other hand, Raja Ram Kumar Bhargava had stated that he had allowed the building to be used by the school free of rent and that it was his permanent contribution to the cause of the school. In my view, the defendants would not have cared to make further constructions in the building as and when necessity arose for the same if Raja Ram Kumar Bhargava and others had given the permission on the condition that they were at liberty to take the premises back at any time they liked ; rather the constructions were made by the defendants within the knowledge of Raja Ram Kumar Bhargava who was also the president of the Progressive Education Society, defendant no. 10 which was running and managing the institution. Raja Ram Kumar Bhagava and others the erst while owners did not raise any objections when the constructions were being made by the defendants. They were therefore, estopped by their conduct and the principle of estoppel will fully apply. It is a settled proposition that a man why stands by and allows another person to build on his land in the belief that the later has power or authority to do so, and incurs expeses in such building, cannot turn round and claim the removal of such building on the ground that the latter had no authority to build. Keeping in view the facts and circumstances of the instant case, I am of the opinion that the permanent constructions were made by the defendants "acting upon the licence." There was sufficient pleading in the written-statement of the contesting defendants that the works of permanent character were executed by the defendants licensees. These works were executed for the furtherance of the purpose for which the licence was granted. Reading the written statement as a whole, it cannot be said that the defendants had not set up the case that the constructions had been made by them acting upon the licence. In my view it has been established that the licencees in the instant case had executed the works of permanent character in pursuance of the licence and had incurred expenses in the execution of that work, licence was accordingly irrevocable. I, therefore, in agreement with Brother Jha, J. hold that the licence was irrevocable. 31. In my view it has been established that the licencees in the instant case had executed the works of permanent character in pursuance of the licence and had incurred expenses in the execution of that work, licence was accordingly irrevocable. I, therefore, in agreement with Brother Jha, J. hold that the licence was irrevocable. 31. In the result the appeal fails and is dismissed with costs.