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1979 DIGILAW 498 (ALL)

Imamuddin v. Asrar Ahmad

1979-04-20

P.N.GOEL

body1979
JUDGMENT P.N. Goel, J. - This is a plaintiffs appeal against the judgment and decree dated 1-8-1966 passed by Temporary Sessions Judge, Jaunpur in Civil Appeal No. 342 of 1964. 2. Very briefly stated the case of the appellant was that he was given a right to realise Tahbazari dues from the shopkeepers who used to sell shoes and leather baskets for the purposes of irrigation on the suit land by Janki Prasad and others, zamindars, who had 7 annas share in the concerned Khewat. Habibyar Khan zamindar owned nine annas share in the said khewat. He gave patta/lease to the respondents. On the basis of this lease respondent wanted to make constructions. The appellant brought suit for injunction restraining the respondents from making constructions on the suit land. 3. The appellant filed a deed, an unregistered one, by means of which Janki Prasad and others gave rights to realise Tabhazari to him. The respondents contested the suit mainly on the ground that the appellant had no right to sue. The trial court found that the appellant was licensee of the suit land; that he held possessory right over the same and that he had a right to maintain suit against strangers. On these findings the trial court decreed the suit for injunction. The respondent filed Appeal No. 342 of 1964 which was decided by the Temporary Civil and Sessions Judge. It was contended before him that Janki Prasad and others created a lease of immoveable property; that the deed executed by Janki Prasad and others required registration; that as the deed was an un-registered one the appellant did not get any right to bring suit. The lower appellate court held that the deed in question required registration. Therefore, the appellant had no right to sue. On this ground alone the lower appellate court set aside the decree passed by the trial court and dismissed the appellants suit. 4. The learned counsel for the appellant contended that the appellant was a licensee on behalf of the zamindars and that the deed in question was not a lease deed, and, therefore, it did not require any registration. 5. A bare perusal of the deed (Ex. 4. The learned counsel for the appellant contended that the appellant was a licensee on behalf of the zamindars and that the deed in question was not a lease deed, and, therefore, it did not require any registration. 5. A bare perusal of the deed (Ex. IV shows that the appellant used to realize-Tabhazari from the shop-keepers from before the execution of the deed, that' Janki Prasad and others considered human honest man and, therefore, they allowed him permanently to realise Tahbazari dues. It will thus be seen that the appellant was simply given a right to realise-Tahbazari from the shop-keepers. Thus he was given permission for a specified purpose and as such it is a case of license -covered by Section 52 of the Easements Act. The contents of the deed do not at all show that any interest in the land was created in the appellant. Therefore, a document of this nature hardly requires-registration. The contention of the appellants counsel in this behalf is well founded. But the question that has yet to be answered is whether the appellant, being a licensee to realise Tahbazari,. could maintain a suit against a lessee of co-sharer having nine annas share in the land. The respondent cannot be considered as purely strangers/trespassers. They have an interest in land. Section 60 of the Easements Act indicates the conditions under-which a license cannot be revoked by the-grantor. There are two conditions (a) if it: is coupled with the transfer of property,-and (b) the licensee acting upon the license has executed a work of permanent character and incurred expenses in.-its execution. In the present case condition No. 2 is not at all applicable. Condition No. 1 is also not applicable because-no rights in land were created by Janki' Prasad and others in favour of the appellant. It means that in the instant case even the grantors could revoke the license. This leads to the conclusion that the appellant is a bare licensee just to realise Tahbazari dues. 6. The appellants counsel made a reference to two cases Panni Lal v. Anant Singh, AIR 1946 All 284 and Mahadeo Misir v. Palakdhari, AIR 1960 All 743 . Both these cases are covered by condition No. 2 of Section 60 of the Easements-Act. Therefore, these cases are not of help to the appellant. 7. 6. The appellants counsel made a reference to two cases Panni Lal v. Anant Singh, AIR 1946 All 284 and Mahadeo Misir v. Palakdhari, AIR 1960 All 743 . Both these cases are covered by condition No. 2 of Section 60 of the Easements-Act. Therefore, these cases are not of help to the appellant. 7. The appellants counsel further-argued that the trial court recorded a finding that the appellant had a possessory right over the land and that this: finding was not upset by the lower appellate court. The learned counsel further contended that on the basis of the possessory title, the appellant could get the relief of injunction. Reliance was placed on the case of M. K. Setty v. M. V. Lakshminarayan Rao, AIR 1972 SC 2299 . In this case the suit property was a building site. The plaintiff purchased it from the previous owner. The property was described both by survey number as well as by boundaries. The plaintiff clearly stated that since the time of his purchase, he was in possession of the suit property and prior to the sale in his favour his vendor was in possession of the suit property. Both the courts below found that the plaintiff was in possession of the suit property. The High Court expressed the view that the possession of the plaintiff after the sale deed was not a relevant circumstance. The Supreme Court observed that it was an entire circumstance and that the plaintiff could on the strength of his possession desist interference from person who had no better title than himself. There is no dispute to the principle laid down in this case. In this ease it has not been indicated as to what was the possession of the plaintiff on the land in suit. In the present case the finding recorded by the trial court may be reproduced. It is in the following words : "Therefore I hold that the plaintiff is a licensee of the land in suit and he hold possessory right over the same." It means that the trial court held that the plaintiff was a licensee to realise Tahbazari dues and he had possessory right to realise Tahbazari dues. But this does not mean that the appellant had possessory right in the land. But this does not mean that the appellant had possessory right in the land. It has been indicated above that no interest in the land was transferred to the appellant by Janaki Prasad and others. The zamindars merely gave him a right to realise Tahbazari. It has also been indicated above that the position of the appellant is that of a bare licensee and his license could even be revoked by the grantor. In this circumstance, the appellant cannot be held to have possession which entitled him to bring a suit even against trespasser. In the present case the appellant is a bare licensee whereas the respondents are lessees from a co-sharer having nine annas share in the property in suit. In this circumstance the appellant has no right to bring the suit for injunction. He cannot, therefore, be granted the injunction claimed by him. 8. Appeal is, therefore, without merit. It is dismissed. Costs on parties.