JUDGMENT : Can the contention that the licence granted to the appellants has become irrevocable be entertained in this Second Appeal? 2. Challenging the concurrent findings entered by the Additional Munsiff's Court, Cherthala in O.S.160/95 followed by those of the Subordinate Judge's Court, Cherthala in A.S.No.18/05, the defendants have come up in second appeal. 3. The suit is one for declaration of title and possession and for permanent injunction. The case of the plaintiff is that the plaint schedule property having an extent of six cents was purchased by her husband late Dasan through Ext.A1 sale deed dated 19.11.1974. Dasan died on 27.09.1989 leaving the plaintiff and her minor son as his legal heirs. After the death of Dasan, the plaintiff put up a building at the western portion of the property and started residing there. Earlier Dasan had constructed a building at the eastern portion of the property wherein the plaintiff along with Dasan were residing. Dasan had permitted the defendants who are none other than his own brother and brother's wife also to reside with them in the earlier building constructed at the eastern side of the property. After the death of Dasan, the plaintiff permitted them to continue their residence in the eastern house. Since the said building became dilapidated, the defendants shifted their residence to a distant place, at the fishermen colony. In the mean time, the said old building gutted in fire. Thereafter, the defendants attempted to commit trespass into the property by taking advantage of their earlier residence in the building, and hence the suit. 4. The defendants contended that the plaint schedule property was in fact purchased by making use of the funds obtained through the sale of the property of the father of the first defendant and late Dasan. It was also contended that the property to which the father was entitled was sold and the parties went to Adimaly and settled there by purchasing a property and thereafter, the said property had to be sold after the death of the father. Dasan being the elder son, he purchased the property by making use of that funds, in his name and therefore, the first defendant and other siblings are also entitled to the said property. Dasan being the elder son, he purchased the property by making use of that funds, in his name and therefore, the first defendant and other siblings are also entitled to the said property. It is contended that an oral partition was entered into between Dasan and the first defendant, since other tenants-in- common did not want any share in the said property. The eastern half of the property was allotted to the share of the first defendant and the western half was allotted to the share of Dasan. According to defendants, they continued to reside in the old building situated at the eastern portion of the property and thereafter, a peeling shed was also put up by them wherein peeling works are being carried on. While so, in the absence of the defendants, earlier building in the eastern portion of the property and the peeling shed gutted in fire and the same were totally lost. By taking that opportunity, the plaintiff filed the present suit and procured an order of temporary injunction by showing the false address of the defendants. Thereafter, with the aid of the local public, the defendants put up a building again and also a peeling shed. According to the defendants, the first defendant is entitled to have the eastern half of the property, with the building and peeling shed in it. 5. The Additional Munsiff's Court, Cherthala decreed the suit in terms of the plaint. An appeal was preferred by the defendants as A.S.No.18/2005 before the Subordinate Judge's Court, Cherthala. The lower appellate court has also concurred with the findings entered by the trial court, and dismissed the appeal. 6. This Court has admitted this second appeal on the substantial questions of law raised as A, B, E and G in the appeal memorandum, which are as follows: "(A) Whether the finding of the courts below that the licence granted to the defendants to reside in the house was revoked due to the destruction of the building due to fire is sustainable in the absence of pleading and proof on the part of the plaintiff with respect to the same? (B) Whether the findings of the courts below that Section 62(C) of the Easements Act is attracted in this case when in the plaint itself it is admitted that the foundation of the building remains in the property? (B) Whether the findings of the courts below that Section 62(C) of the Easements Act is attracted in this case when in the plaint itself it is admitted that the foundation of the building remains in the property? (C) Whether the petition for mandatory injunction filed by the plaintiff as I.A.No.2837/2004 is barred by limitation? (D) Whether the decree granted in favour of the plaintiff is sustainable when there is no prayer for recovery of possession especially in the light of the Commission report stating that the peeling shed was functioning in the property and the foundation of the same still remains in the property?" 7. Heard the learned counsel for the appellants and the learned counsel for the respondent. 8. The learned counsel for the appellants has argued that there is deliberate suppression of facts in the plaint and therefore, the plaintiff is not entitled to the reliefs sought for. According to the learned counsel for the appellants, the fact that the defendants had put up a peeling shed and was making use of the same has been deliberately suppressed. It has been argued that the defendants had produced Exts.B1 to B6 to show their continued occupation in the building. The further argument is that when there is an oral partition, the title of the first appellant has to be inferred. 9. Per contra, the learned counsel for the respondent has argued that the residence of the defendants in the old building was merely based on the licence granted by Dasan at first, which was continued by the licence granted by the plaintiff, after the death of Dasan. It has been further argued that the licence is only a revocable licence and there is nothing to show that an irrevocable licence has been created within the meaning of Section 60 of the Indian Easements Act. It has been argued that there is absolutely nothing to interfere with the concurrent findings entered by both the courts below and none of the questions, formulated as substantial questions, has actually emerged in this second appeal. 10. The claim regarding the title is that some funds were obtained through the sale of property of the father of Dasan and the first defendant at Adimaly and the same was made use of by Dasan to purchase the plaint schedule property in his name. 10. The claim regarding the title is that some funds were obtained through the sale of property of the father of Dasan and the first defendant at Adimaly and the same was made use of by Dasan to purchase the plaint schedule property in his name. There are no sufficient pleadings to invite the transaction as one of benami in nature. At the same time, the appellants are still harping upon the plea of an oral partition allegedly conducted in the year 1984. In the absence of any document to show the title of the first defendant allegedly involved, the defence of oral partition if at all admitted, cannot confer title over the property on the first defendant. As per Ext.A1, Dasan is the title holder of the property and on his death, it devolved on the plaintiff and her son. The case of oral partition attempted to be set up by the defendants could not be proved. There is absolutely nothing to show that actually such a partition had ever taken place. The said fact has been concurrently found by both the courts below and therefore, the said finding based on facts does not arise any further in this second appeal. 11. Regarding the occupation of the defendants in the earlier building, the case set up by the plaintiff is believable. According to the plaintiff, the residence of the defendants in the earlier building was merely on the basis of the licence granted by Dasan. On the death of Dasan, she again permitted the defendants to continue their residence. Mere residence in such a building cannot confer an irrevocable licence in favour of the defendants. They have no case that the said building was put up by them. At the same time, the learned counsel for the appellants has pointed out that the peeling shed was put up by them and its foundation remained there, even though it gutted in fire, and when there was such a foundation, it has to be deemed that it was a construction of a permanent nature made by the defendants by incurring expenses and therefore, it could be an irrevocable licence within the meaning of Section 60(b) of the Easements Act. The mere fact that the foundation remained there does not show that the said foundation was made by the defendants, or the said foundation was made by the defendants by incurring expenditure. The mere fact that the foundation remained there does not show that the said foundation was made by the defendants, or the said foundation was made by the defendants by incurring expenditure. It is interesting to note that the defendants had not set up any such claim of irrevocable licence before both the courts below. The same has been invented and presented by the learned counsel for the appellants in this second appeal. When the said contention was not taken up before both the courts below, the said question cannot be set up for the first time in the second appeal. 12. It is evident that on account of the total destruction of the building, the licence which was revocable came to an end. Section 62(d) of the Easements Act also comes into play because of the total destruction of the subject matter of the licence. There was no transfer of property along with the licence in order to invite Section 60 (a) of the Easements Act. 13. According to the learned counsel for the appellants, the appellants are still occupying the building in the property and therefore, the plaintiff ought to have sought for recovery of possession. It has clearly come out that when the suit was filed, there was no such residential building which was occupied by the defendants, and there was no peeling shed also. The same were gutted in fire and nothing remained there. In such circumstances, the revocable licence had come to an end. It was at that stage the suit was filed. In the suit, an order of temporary injunction was also passed. It was after the filing of the suit, the defendants committed trespass into the property and put up a building and a peeling shed. In such circumstances, the plaintiff need not seek any other relief. When there was trespass after the filing of the suit, any decree for recovery of possession need not be sought for. The defendants are liable to be evicted even without any such relief sought for by the plaintiff. With the relief of perpetual injunction granted in favour of the plaintiff, the property can be recovered through the execution of the decree for perpetual injunction. 14. The defendants are liable to be evicted even without any such relief sought for by the plaintiff. With the relief of perpetual injunction granted in favour of the plaintiff, the property can be recovered through the execution of the decree for perpetual injunction. 14. On a careful consideration of the entire evidence and on hearing either side, it has clearly come out that there is absolutely nothing to interfere with the concurrent findings entered by both the courts below. This second appeal is devoid of merits, and is only to be dismissed, and I do so. 15. The learned counsel for the appellants has pointed out that the execution proceedings are pending before the Additional Munsiff's Court, Cherthala in the matter. The learned counsel for the appellants has forwarded a request for and on behalf of the appellants to grant six months' time for the defendants to vacate the premises. In case the defendants are filing an affidavit before the execution court, with an unconditional undertaking to vacate the premises within a period of six months from today, the execution court shall adjourn the delivery to a period for six months from today. The non filing of an affidavit to that effect will dis-entitle the defendants to such a relief. In the result, this Second Appeal is dismissed. In the nature of this appeal, the parties shall bear their respective costs. All interlocutory applications in this appeal are closed.