This is an appeal by the plaintiff whose suit for eviction of the defendant from the suit property as a licensee was decreed by the trial Court and dismissed by the first appellate Court. The appellant, as plaintiff, filed a suit for recovery of khas possession of the suit land from the defendant. His case was that the suit land was purchased by him from one Abdul Rekib Choudhury by registered sale deed on 14.3.1952. He also got possession of the same. The defendant entered upon the suit land as a licensee with the assurance that he would vacate the same as and when demanded by the plaintiff. Later, on being asked to vacate, the defendant failed to do so. Consequently the suit was filed. The defendant denied the claim of the plaintiff that he (defendant) was a licensee. He claimed to be non-evictable tenant in respect of the suit land. The defendant categorically denied that he was a licensee liable to be evicted as claimed by the plaintiff. The learned trial Court framed four issues. Issue No. 2 was : "Whether defendant No. 1 is a licensee under the plaintiff". The trial Court, on consideration of the evidence on record, cams to a finding that the defendant was not a tenant under the plaintiff. He was a licensee liable to be evicted. " Accordingly, the trial Court decreed the suit and directed the defendant No. 1 to vacate the suit land. The defendant filed an appeal before the Assistant District Judge, Karimganj. The learned Assistant District Judge also decided the issue No. 2 in the affirmative. It was held that the defendant was a licensee under the plaintiff. He, however, went a step further and held that though the defendant was a licensee, he W-U covered by the protection under section 60 of the Indian Easements Act, 1882 and, as such, he was not liable to be evicted. As a result of the aforesaid finding, the judgment and decree of the trial Court were reversed, the appeal was allowed, and the suit of the plaintiff dismissed. Against the aforesaid order of the first appellate Court, the plaintiff has come in second appeal before the Court. The main question of law that has been raised "by the learned counsel of the Appellant, Mr. Against the aforesaid order of the first appellate Court, the plaintiff has come in second appeal before the Court. The main question of law that has been raised "by the learned counsel of the Appellant, Mr. B. L. Singh, is that the appellate Court was not justified in law in holding that the licence in favour of the defendant was irrevocable. The learned counsel submits that it was never the case of the defendant before the trial Court. Neither such plea was raised by the defendant before the trial Court, nor any evidence adduced in that regard. Even arguments were not advanced by the defendant on that point before the trial Court and as such, no decision was given by the trial Court on the question of irrevocability of the licence. In fact, the case of the defen­dant No.l before the trial Court was one of denial of the claim of the plaintiff that he (defendant) was a licensee. It was, at no stage of the proceeding, the case of the defendant that he had been granted a licence and that acting upon the licence he raised construction of permanent nature and incurred expenses in execution thereof as a result of which the licence became irrevocable under section 60 (b) of the Easements Act, 1882. Counsel, therefore, submits that the appellate Court committed manifest error of law in deciding the question of irrevocability of the licence under section 60 (b) of the aforesaid Act for the first time without any pleadings or evidence in that regard, Mr. S.A. Laskar, the learned counsel for th? respondents, submits that though there is no categorical statement in regard to irrevocability of the licence under section 60 (b) of the Indian Easements Act, it can be inferred by the denial of the licence itself by the defendant. According to the counsel, having affirmed the finding of the trial Court that the defendant was a licensee, it is open to the first appellate Court to decide further question as to whether the licence was irrevocable or not. I have carefully considered the rival submissions of the learned counsel for the parties. The concurrent finding of both the Courts below is that defendant No.l is a licensee. Both the Courts have rejected the claim of the tenancy raised by the defendant. Having arrived at this finding the trial Court decreed the suit. I have carefully considered the rival submissions of the learned counsel for the parties. The concurrent finding of both the Courts below is that defendant No.l is a licensee. Both the Courts have rejected the claim of the tenancy raised by the defendant. Having arrived at this finding the trial Court decreed the suit. The appellate Court while affirming this finding, went to the question of irrevocability of the licence under section 60 (b) of the Indian Easements Act, 1882 and held that in view of the said provision the licence in favour of defendant No.l was irrevocable. The question for consideration is whether under the facts and circumstances of the case it was open to first appellate Court to hold that the licence was irrevocable under section 60 (b) of the Easements Act. I have perused the plaint and the written statement. Evidently do such plea had been taken by the defendant in the written statement. His only case was denial of the licence. No plea of irrevocability of licence was raised in the pleadings. No such issue was also framed. The relevant issue framed was issue No.2 : Whether the defendant was a licensee under the plaintiff or not. There was no issue regarding irrevocability of licence under section 60 (b) of the Act. The trial Court, therefore, did not give any decision on that issue. It is the first appellate Court which observed for the first that the defendant was entitled to protection from eviction in view of the provision contained in clause (b) of section 60 of the Indian Easements Act and allowed the appeal of the defendant and reversed the judgment of the trial Court. The plaintiff appellant has challenged this action as most illegal. Clause (b) of section 60 of the Easements Act provides : "60. A licence may be revoked by the grantor, unless-(a) (b) the licensee, acting upon the licence, has executed a work of a permanent character" and incurred expenses in the execution." Clause (b) is thus an exception to the power of the grantor to revoke a licence. Under this clause a licence is irrevocable if, acting upon a licence work of a permanent nature has bean executed and expenses incurred in its execution by the licensee. Under this clause a licence is irrevocable if, acting upon a licence work of a permanent nature has bean executed and expenses incurred in its execution by the licensee. From a plain reading of this provision, it is clear that to render a licence irrevocable execution of work of permanent nature itself is not enough. What is further required to be proved is that such construction had been raised acting upon the licence, "Acting upon the licence" means acting upon the right given by the grantor. Whether the licensee acted upon a licence by executing the work of permanent nature and whether he incurred expenses in execution of such work or not are essentially questions office;. The onus to prove the same lies upon the licensee who relies upon the provision of section 60 of the Easements Act and claims that the licence is irrevocable. It is a defence available to the licensee against revocation of the licence by the grantor. If the licensee wants to take such defence he has to raise it specifically. It has to be specifically pleaded and proved. In the absence of any pleading, issue and evidence, defence based on section 60 of the Easements Act will not be available to a licensee. Such a plea cannot be raised for the first time in course of arguments before the first appellate Court. In the instant case it is cleat that no such plea was taken by the defen­dant in the pleadings or at any stage of the trial before the trial Court. No issue was also framed in that regard. No decision was given by the trial Court. It was argued before the first appellate Court for the first time and the appellate Court decided the same in favour of defendant No.1 an J against the plaintiff. I am clearly of the opinion that it was not open to the defendant to raise the question of irrevocability of the licence for the first tune before the first appellate Court nor it was correct on the part of the frist appellate Court to decide the same. The decision of the first appellate Court in regard to irrevocability of the licence under section 60 (b) of the Indian Easements Act, therefore, cannot be sustained. The same is, accordingly, set aside. The decision of the first appellate Court in regard to irrevocability of the licence under section 60 (b) of the Indian Easements Act, therefore, cannot be sustained. The same is, accordingly, set aside. In view oft e aforesaid discussion and decision, the judgment and decree of the first appellate Court are set aside. The judgment and decree of the trial Court are affirmed. In the result, this appeal is allowed. No order as to costs.