Set Narayan Lal v. Bansh Bahadur Lal — 1979 DIGILAW 174 (ALL)

JUDGMENT P.N. Goel, J. - In this appeal by the plaintiff-appellant against the appellate Courts judgment and decree dated 10-12-1968 passed by the Civil Judge, Gorakhpur, confirming the judgment and decree dated 10-8-1966 passed by the 1st Additional Munsif, Gorakhpur, in Original Suit No. 509 of 1963, the main question for determination is whether the rights of a licencee, who had, .acting on the licence, constructed a house on the land in suit and which had fallen down about 45 years before the filing of the suit and the land in suit was lying Parti, remained intact or came to an end. 2. This question arises in this manner. The land in suit is situate in Mohalla Jagarnathpur in the town of Gorakhpur. The -plaintiff-appellant and his ancestors were not Zamindars/owners of the land. A house on the disputed land existed from before the year 1865. In Khasra Abadi of the settlement of 1865 house no. 1 in Ahata No. 4 was shown that of Lakhpat Rai, Harbhajan Rai and Kishore Chand. Lakhpat Rai was the great grand father of the plaintiff-appellant. The house fell down in the year 1918. The father of the appellant wanted to reconstruct a house in its place and obtained municipal sanction for the same in or about the year 1918. But no house could he constructed in place of the old one. The land in suit, therefore, remained vacant and became Parti. On 29-6-1968. Jawahar Lal son of Kirat Chand Zamindar executed a sale deed of the disputed land in favour of defendants-respondents Nos. 2 to 5, minor sons of Sri Ram Misra, Vakil, defendant-respondent no. 6. Defendant-respondent no. 7 is wife of defendant-respondent No. 6. Bansh Bahadur Lal, defendant-respondent no. 1 began to flow his drain towards the disputed land and the other defendants began to interfere with the possession of the appellant. Therefore, on 24-8-1963 the appellant filed suit for preventive and mandatory injunction. 3. The defence of the respondents nos. 2 to 5 was that the land in question was lying Parti for the last about 50 years, that it stood abandoned and that therefore the Zamindar had a right to transfer it to them- 4. Parties led oral and documentary evidence in the case. On behalf of the contesting respondents relevant portion of the Wajibul Arz was filed. 2 to 5 was that the land in question was lying Parti for the last about 50 years, that it stood abandoned and that therefore the Zamindar had a right to transfer it to them- 4. Parties led oral and documentary evidence in the case. On behalf of the contesting respondents relevant portion of the Wajibul Arz was filed. The Wajibul Arz reads as follows: - "Kot riyava hamari zamin jadid men parti ho khwah majrua bila ijazat we adai rasoom zamindari ham mohalledar ke naya makan jwaghera hahin bana sakta wa no mitti le sakta hai. Wa jo riyaya ghar apna chhor kar chala jaye wah la wald ho jaye to wall makan ham muhalledar ka hai." 5. On a consideration of the evidence in the case including the Wajibul Arz, the trial Court found that the licence in favour of the appellant's ancestor stood revoked and as such the Zamindar could transfer the land to the contesting respondents. The trial Court assigned two reasons for this finding (1) according to the conditions of the Wajibul Air no Riyaya could construct a new house without the permission of the Zamindar. The house constructed by the appellants ancestor had completely fallen down and the land had become Parti. (2) The non-construction of any house during the last 50 years was a strong circumstance indicating abandonment of the land on behalf of the appellant and his ancestors. 6. The learned Civil Judge affirmed the finding of the trial Court on both the points and, therefore, dismissed the appeal filed by the appellant. Sri Rajesh Ji Verma learned counsel for the appellant first of all contended that both the Courts below did not interpret the conditions of the Wajibul Arz correctly and that as the interpretation of the Wajibul Arz put by the Courts below was not justified, this Court could interfere in Second Appeal. 7. Wajibul Arz is a record of Custom. It mentioned the customary rights which ordinarily govern the relations between Zamin dar and Raiyat. Therefore, the terms and conditions of the Wajibul Arz should be construed as they are actually mentioned therein. In the instant case, the relevant portion of the Wajibul Arz, which has been reproduced above, clearly indicates two conditions (1) No Riyaya can construct a new house etc. Therefore, the terms and conditions of the Wajibul Arz should be construed as they are actually mentioned therein. In the instant case, the relevant portion of the Wajibul Arz, which has been reproduced above, clearly indicates two conditions (1) No Riyaya can construct a new house etc. on the land which is Parti or cultivable without the permission of the zamindar and payment of Rasoom i. e. Nazrana to the zamindar, nor he can take earth from the Parti or cultivable land. (2) In case, any Riyaya goes away leaving his house or he dies issueless, the house would revert to the zamindar. In the instant case, the second condition is not applicable. We are, therefore, concerned with the first condition. The first condition simply lays down that no Riyaya would construct a new house without the permission of the Zamindar. In the present case the house must have been constructed on the disputed land by the ancestors of the appellant with the permission of the jamin-dar. Therefore, the first condition of the Wajibul Arz stood fulfilled: The Wajibul Arz does not lay down that if a house which has been constructed by a Riyaya with the permission of the zamindar falls down and the land becomes vacant, then the land reverts to the zamindar and in that case if the Riyaya wants to re-constrict house then he should obtain permission of the zamindar again. The first condition does not incorporate any words to indicate that for the reconstruction of the house in place of the old one, permission oi the zamindar is required. The Courts below have interpreted the first condition in this way that for the reconstruction of the house on the site of the old one, permission of the zamindar was required. This interpretation is not home out by the clear words used in the Wajibul Arz. Precisely speaking the Wajibul Arz is silent on this point. Its reason is not far to seek. If a Riyaya constricts a house, acting on the permission granted by the Zamindar, the zamindar has not been given a right in this Wajibul Arz to revoke the; licence. It means that if a house has been constructed by the Riyaya with the permission of the zamindar, the purpose of the licence is fulfilled, it cannot he revoked unless there is any enabling provision in the Wajibul Arz. It means that if a house has been constructed by the Riyaya with the permission of the zamindar, the purpose of the licence is fulfilled, it cannot he revoked unless there is any enabling provision in the Wajibul Arz. In the present Wajibul Arz there is no such enabling provision. Therefore, the Courts below were not justified in making inferences or in adding words to the words employed- in the Wajibul Arz. To repeat, the Wajibul Arz is silent whether for reconstructing the house in place of the old one, it would he necessary for the Riyaya to obtain the permission of the Zamindar again. In view of this, Sri Verma is justified in contending that the Courts below- have not interpreted the Wajibul Arz correctly and as such a legal point has arisen in the case which entitled this Court to interfere, if necessary, in this second Appeal. 8. But the Courts helow have not solely-relied upon the terms of the Wajibul Arz. The Courts below- have also relied on another circumstance. That circumstance is that the non-construction of any house during the last 50 years on the land in suit, was a strong circumstance indicative of abandonment of the land on the part of the Riyaya. It is obvious that if the Riyaya has abandoned the land it would necessarily revert to the zamindar. In the beginning of this judgment, it was clearly stated that the main question involved was whether the rights of a licensee had remained intact or come to an end by non-construction of the house for 45 years on the land which had become Parti after the falling of the house. 9. Chap- VI of the Indian Easements Act makes statutory provision governing the relationship of licence or licensee. Section 60 lay-s down that a licence may be revoked by the grantor, but this right is subject to two conditions (1) if the licence is coupled with a transfer of property and such transfer is in force and (2) The licensee acting upon the licence has executed a work of a permanent character and incurred expenses in the execution. 10. In the present case the first condition does not exist because the appellant did not prove that the licence to construct house was coupled with a transfer of property. In the instant case, the terms of the original licence are not known. 10. In the present case the first condition does not exist because the appellant did not prove that the licence to construct house was coupled with a transfer of property. In the instant case, the terms of the original licence are not known. Besides, the house which was originally constructed, fell down and the land assumed the shape of a Parti. The second condition is also not applicable in the instant case. Its reason is that acting upon the original licence, the ancestor of the appellant has built a house, a work of a permanent character, but the said house fell down and in its place no house was immediately constructed. In fact it was not constructed for a period of 45 years. No house of the appellant was in existence on the land in suit even on the date of the suit. The position which easily follows is that both the conditions are not fulfilled in the instant case. Therefore, the zamindar could revoke the licence. In this connection averment may he made to cls. (f) and (h) of Section 62. Cl. (f) lays down that a licence is deemed to be revoked where the licence is granted for a specified purpose and the purpose is attained or abandoned, or becomes impracticable. Cl. (h) then lays down that a licence is deemed to he revoked where the licence totally ceases to be used as such for an unbroken period of 20 years. In the present case the original licence must have been granted to the appellant's ancestor for constructing a house for the purpose of residence or for keeping cattle. The house was constructed. Therefore, the licence granted by the zamindar exhausted itself. The house constructed by the ancestor of the appellant fell down 45 years before the filing of the suit. It means that the licence ceased to be used for more than 20 years. In this way, the provisions of cl. (h) of Section 62 came into operation against the rights of the appellant. 11. In this connection reference may be made to the case of Gava Prasad v. Gulab Chand, 1950 All WR (HC) 16. In this case the zamindar had allowed the plaintiffs to construct a shop in the market. In this way, the provisions of cl. (h) of Section 62 came into operation against the rights of the appellant. 11. In this connection reference may be made to the case of Gava Prasad v. Gulab Chand, 1950 All WR (HC) 16. In this case the zamindar had allowed the plaintiffs to construct a shop in the market. Later on, in or about the year 1911 the zamindar decided to establish a market at another place and he insisted upon the shop keepers including the plaintiffs to shift to the new market. The shop keepers were granted plots of land to build their shops in the new market. The plaintiffs shifted to the new market where they built two shops. The shop in the old market was allowed to fall down. In the year 1939, the zamindar granted permission to the defendants to build a house on the site of the old shop of the plaintiffs. The plaintiffs instituted a suit for injunction. It was held that as the work of a permanent character was allowed to fall down and the land permitted to remain Parti for more than 10 years, the conditions in Section 60 of the Easements Act did not apply and the licence could he revoked. In view of this, the plaintiffs suit was dismissed. This case clearly supports the view indicated above and the defence taken by the respondents. 12. Sri Rajesli Ji Verma learned counsel for the appellant pointed out that the Indian Easements Act came into force from the year 1.882 and that in the present case the licence to build a house was granted to the appellants ancestor well before the year 1865, and as such the provision of the Indian Easements Act would not be applicable. Prima facie there appears force in the contention, hut this contention does not help the appellant. Preamble of the Indian Easements Act shows that the Act was framed to define 'and amend the law relating to easements and licences. It means that the Act is a I defining and amending Act and it is not introducing any new principle. The Act simply attempts to clarify the scope of known legal principles accepting good law and rejecting the bad one. Amending and defining Act necessarily applies to some pre-existing law. It means that the Act is a I defining and amending Act and it is not introducing any new principle. The Act simply attempts to clarify the scope of known legal principles accepting good law and rejecting the bad one. Amending and defining Act necessarily applies to some pre-existing law. It means that even prior to the enactment of the Indian Easements Act, the law in all probability' was that if a licensee did not use the licence for a period of 20 years or so, the licence stood revoked. In the present case the house constructed by the appellants ancestor fell down in the year 1918 and no house was reconstructed in its place for about 45 years. Therefore, non-construction of the house for 45 years leads to the necessary conclusion that the licence stood revoked and as such the appellant had no right to bring the present suit against the contesting I respondents in whose favour the zamindar i has executed a sale deed. Reference may 1 here he made to the case of Raghubir Saran v. Parnm Kirti Saran, 1962 All LJ 297 : ( AIR 1962 All 444 ). In this case, the respondent was the owner of the suit lard. On this land Bankev Lal or his predecessor had built a tiled thatch. It was not known on what conditions and terms and when the tiled thatch was constructed. In execution of a decree obtained against Bankev Lals widow Smt. Shanti, the thatch together with the right of residence was put to auction in 1929 and purchased by the appellants. The site was not sold to the appellants. The thatch fell down in the year 1930 i. e. within a year of the granting of the sale certificate in favour of the appellants- In the year 1946, the appellants wanted to construct a house on the land. The respondent objected. Consequently, the appellants filed a suit. Reference was made to die provisions relating to licences and Easements Act. Two observations which are relevant are reproduced below (at p. 299 of All LJ): - "The licence was granted, presumably for the purpose of constructing a thatch and the purpose can be said to have been abandoned when the thatch fell down and no attempt was made to rebuild it or to construct another on the site within a reasonable period. The licence, therefore, can be said to have been revoked when the thatch fell down and it was reconstructed or another was not built on the land for a period exceeding twelve years. We do not mean to lay down that twelve years period is a reasonable period; what we lay down is that when no attempt was made to rebuild the thatch or to build another during fourteen years, the appellants must be deemed to have abandoned the purpose of the licence." "The only right that the appellants acquired through the auction purchase was the proprietary right over the thatch and the right of residence therein. The thatch fell down and, therefore, there arises no question of the appellants exercising their right of residence now." 13. The ratio expressed in the above case clearly goes against the appellant- 14. The learned counsel for the appellant referred to the case of Shri Ram v. Nand Kishore, AIR 1958 All 107 in which it was observed that (At p. 108): - "Abandonment when used with reference to a person having a derivative interest, e. g. a tenant or ryot essentially means the giving up of his right in the property by the person with the intention that he will no longer have any concern with it and that it is to revert to the person to whom it is ultimately to belong. The necessary intention to abandon must therefore be there. The intention has a positive as well as a negative aspects. The negative aspect implies that the person who abandons will cease to have all connections with the property. The positive aspect of the intention must he that the property is to go hack to the person who would be entitled to it in the absence of the person who abandons." 15. There is no dispute to the above principle. But in this case it was not pleaded that the shop was abandoned 15 years before the suit, i. e. 3 years before the gift. 16. Sri Rajesh Ji Verma, learned counsel for the appellant pointed out that the appellant's father made an attempt to reconstruct a house on the disputed land by seeking permission of the Municipal Board up to 1938 and as such the appellant's father had no intention to abandon the land. 16. Sri Rajesh Ji Verma, learned counsel for the appellant pointed out that the appellant's father made an attempt to reconstruct a house on the disputed land by seeking permission of the Municipal Board up to 1938 and as such the appellant's father had no intention to abandon the land. This position is not helpful to the appellant because the suit was filed in the year 1963. The appellants father made an attempt: to re-construct a house up to the year 1938. It means that no attempt was made to reconstruct the house within 25 years of the filing of the suit. Therefore, to the present case, the pro visions of Cl. (h) of Section 62 of the Easements Act clearly became applicable- 17. It may he indicated here that the appellant made an attempt to prove that he used to use the suit land as a Sehan land, hut in this attempt he clearly failed. 18. The position, therefore, is that the case of Lala Shri Ram cited by the appellants counsel is not helpful to the appellant. 19. The appellants counsel then referred to four receipts Exs. 9 to 12 through which rent/licence fee of the land in suit was paid by the appellant to the zamindar. The oldest receipt is dated 2-11-1914. Then receipt Ex. 10 is dated 3-12-1960. The other two receipts Exs. 9 and 11 are of April, 1953. It was urged that as the zamindar had taken rent of the land, the zamindar was not justified in selling the land to the respondents. From the discussion of the legal position, it is clear that the licence stood revoked for not reconstructing a house on the suit laud and allowing the land to become Parti. Therefore, these receipts are of no help to the appellant. 20. The discussion of the legal question involved clearly leads to the conclusion that the rights of a licensee, who had built a house which had fallen down about 45 years before the filing of the suit and the land had become Parti, came to an end. In view of this, there is no force in the appeal. The view taken by the Courts below is legally justified and cannot he interfered with. 21. Appeal is, therefore, dismissed with costs.