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2019 DIGILAW 625 (CAL)

Sanjay Chakraborty v. Sripati Mandal

2019-05-24

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. The appellants of this 2nd Appeal are the legal heirs and representatives of deceased sole appellant who were substituted by an order dated 23rd June 2016 passed by a Coordinate Bench of his Court. 2. One Sanjay Chakraborty, predecessor-in-interest of the present appellants as plaintiff filed a suit against one Mukut Mondal praying for decree of eviction against the said Mukut Mondal and others on revocation of licence and other incidental reliefs. 3. It is alleged by the plaintiff that one Khirod Chakbaborty was the recorded owner of the suit property more fully described in schedule 'Ka' and schedule 'Kha' of the plaint. Measurement of Ka schedule property is approximately 2 1/2 decimal and that of 'Kha' schedule is remaining 17 1/2 decimal situated in plot No.3000 of khatian No.4837 of mouza Kharigram within PS Mathurapur. The said Khirod Chakrabarty used to reside in the suit plot by constructing a house in a portion thereof and possessed the remaining land by way of plantation and cultivation. Sometimes in 1360 BS, one Manmatha Mondal being the predecessor-in-interest of the present defendants requested Khirod Chakrabarty to permit him to stay in a portion of the suit plot. An agreement was arrived at between Khirod and Manmatha to the effect that Manmatha would stay in a portion of the suit property described in schedule 'Ka' of the plaint by constructing a room with mud walls as a licensee without any licence fee under the said Khirod on condition that he would vacate and deliver up peaceful possession of the suit land at the earliest after constructing a dwelling house elsewhere. Accordingly, Manmatha started to reside on the suit plot with his family members as a licensee under Khirod. During his life time Khirod executed a deed of gift in favour of his son Sanjay Chakraborty and wife Parbati Chakrabarty on 4th June 1973. The donees accepted the said gift and become owners of the suit plot. The original licensee, namely, Manmatha died about 20/22 years prior to institution of the suit leaving behind his widow, the defendants and his daughters. After the death of Manmatha, his widow and the defendants earnestly requested the plaintiffs to allow them to stay in the suit property. The plaintiffs permitted them to stay in the suit plot. During RS settlement, name of Manmatha was recorded as a licensee in respect of entire plot No.3000. After the death of Manmatha, his widow and the defendants earnestly requested the plaintiffs to allow them to stay in the suit property. The plaintiffs permitted them to stay in the suit plot. During RS settlement, name of Manmatha was recorded as a licensee in respect of entire plot No.3000. However, Manmatha and thereafter the defendants have been possessing 2 1/2 decimal of land out of 20 decimal of land. The recording of the name of the Manmatha in respect of entire plot of land in dag No.3000 in R.S Record of Rights was wrong and erroneous. After the death of Khirod, the defendants illegally tried to grab the entire suit property. Therefore, the plaintiffs revoked the licence of the defendants and called them upon to quit, vacate and deliver up peaceful possession of the suit property within 1st Jaistha, 1401 BS. It is further stated by the plaintiffs in the plaint that they have been possessing Kha schedule land by constructing a house thereon. They also planted various trees. There are bamboo grove, turmeric and other trees on the suit property. They also cultivate some leafy vegetables on a portion of the said schedule 'kha' property. After revocation of licence, the defendants were inimical against the plaintiffs and tried to change the nature and character of the schedule 'Kha' property. Accordingly, the plaintiffs prayed for eviction of the defendants from 'Ka' schedule property and permanent injunction restraining the defendants from cutting trees and/or making any kind of disturbance to the plaintiffs in respect of 'Kha' schedule property. 4. The defendants contested the suit by filing written statement wherein they specifically denied entire allegation made out by the plaintiffs against them. Apart from denial of the plaint case, it is specifically stated by the defendants that their predecessor-in-interest Manmatha was originally a resident of village Panapukur within PS Mathurapur. He used to sale puffed rice in the locality and was financially solvent. In course of his business, he was acquainted with Khirod Chakrabarty. Manmatha requested Khirod to permit him to stay in the suit property Khirod permitted him and on the strength of such permission, he constructed one room with mud wall and thatched roof sometimes in 1358 B.S. Manmatha used to stay in the said room with his wife, two sons and one daughter. Subsequently, he constructed a kitchen adjacent to his room. Subsequently, he constructed a kitchen adjacent to his room. He also installed one 'Dheki' for preparation of puffed rice by the side of his room. Manmatha died sometimes in 1370 BS. On the date of Shraddh ceremony of Manmatha, his legal heirs obtained fresh licence from the legal heirs of Khirod. After the marriage of second and third son of Manmatha, the defendants demolished the room constructed by Manmatha and built two rooms made of mud walls with thatched roof in 'Ka' schedule property. Subsequently, the defendant No.1 received monetary help under Indira Awaas Yojana and constructed a permanent structure made of brick wall with tile shed on Ka schedule property. Loan was also granted under Indira Awaas Yojana in the name of defendant No.2. It is also the case of the defendants that they have been possessing entire 20 decimal of land. The plaintiffs have no right, title and possession over Kha schedule property. The defendants have been possessing the entire suit plot openly, continuously and uninterruptedly asserting hostile interest against plaintiffs. So, they prayed for dismissal of the suit. 5. The learned trial judge on due consideration of evidence adduced by the parties decreed the suit in favour of the plaintiffs. 6. The defendants challenged the said judgment and decree passed by the leaned Civil Judge (Junior Division), 1st Court at Diamond Harbour in Title Suit No.8 of 1995 by preferring an appeal before the learned Civil Judge (Senior Division) at Diamond Harbour which was registered as Title Appeal No.41 of 1998. 7. The learned Judge in 1st Appellate Court allowed the appeal on contest and accordingly the judgment and decree passed by the learned trial court in Title Suit No.8 of 1995 were set aside. 8. Being aggrieved, the plaintiff of the said suit preferred the instant appeal under Section 100 of the Code of Civil Procedure before this Court. 9. By an order dated 25th September, 2002 the Division Bench of this Court admitted the appeal for hearing on the following substantial questions of law:- (i) Whether the leaned Appellate Court erred in holding that the alleged licence was irrevocable because the defendants categorically took the defence that their predecessor took the suit land as a licensee. (ii) Whether the learned Court of Appeal erred in law in making out a new case as because the defendant failed to plea that the licence was revocable one. (ii) Whether the learned Court of Appeal erred in law in making out a new case as because the defendant failed to plea that the licence was revocable one. (iii) Whether the learned Appellate Court failed to consider the legal proposition of law that in the absence of pleading, evidence, if any produced by the parties cannot be considered. 10. Mr. Rabindranath Mahato, learned Advocate for the plaintiffs/appellants submits before me that the fate of the appeal depends upon adjudication and determination of two questions, i.e., (a) Whether the licence granted in favour of the predecessor-in-interest of the defendants/respondents and subsequently in favour of the respondents is revocable or irrevocable and (b) Whether in the absence of pleading the defence case can be considered. 11. In order to substantiate his contention, Mr. Mahato led me to certain portions of the judgment delivered by the trial court. It appears from the judgment passed by the trial court that the defendants did not dispute regarding grant of licence to Manmatha, predecessor-in-interest of the defendants by Khirod. Khirod permitted Manmatha to reside in the suit plot constructing a room made of mud walls and thatched roof. It is also submitted that after the death of Manmatha the defendants, being his legal heirs, approached the plaintiff to permit them to stay in the suit premises which the appellants approved. According to Mr. Mahato the respondents admitted of having fresh licence from the plaintiffs after the death of Manmatha. So original licence granted in favour of Manmatha by Khirod came to an end and a fresh licence was commenced from 1370 BS in favour of the defendants. The learned trial judge while deciding issue No.5, viz whether the plaintiffs have title and possession over the suit property or not framed a question to the effect that if the defendants obtained licence from the plaintiffs to possess the entire suit property comprising of 20 decimal of land or 2 1/2 decimal of land where they constructed mud house for their living. In the written statement the defendants claimed that they have been possessing the suit land by constructing a residential house in a portion and by way of plantation in the remaining portion of plot No.3000. According to the plaintiffs/appellants the defendants/respondents have been possessing 21/2 decimal of land out of 20 decimal of land as licensee. In the written statement the defendants claimed that they have been possessing the suit land by constructing a residential house in a portion and by way of plantation in the remaining portion of plot No.3000. According to the plaintiffs/appellants the defendants/respondents have been possessing 21/2 decimal of land out of 20 decimal of land as licensee. It is important to note that in the written statement the defendants/respondents did not specifically plead that they have been possessing 'Kha' schedule property by plantation and cultivation of leafy vegetables. DW1 in his evidence stated that they are in possession of the trees planted on the southern side of 'Ka' schedule property. However, he admitted that in written statement they did not plead that the trees situated on the southern portion of the suit property were planted by the defendants or that they cultivate leafy vegetables on southern portion of the suit property and the appellants have no possession over the said suit property. 12. Learned Counsel for the appellants next draws my attention to the judgment passed by the learned Judge in 1st Appellate Court. Learned Judge in 1st Appellate Court allowed the appeal and consequently set aside the judgment and decree passed by the learned Court of 1st Instance on the ground that in RS Record of Rights, name of Manmatha was recorded as permissive possessor (Anumati Dang) in respect of the entire 20 decimal of land in plot No.3000. In his judgment, the learned Judge in 1st Appellate Court observed, "The RSROR is a finally published Record of Right and its entry has got a presumption of correctness. This presumption of correctness subsists as long as it is rebutted by cogent evidence." 13. With this observation the learned Judge proceeded to conclude that had Manmatha been in possession of 2 1/2 decimal of land, his name would have been recorded in respect of the said portion of land only. Secondly, learned Judge in the Appellate Court held that the licence which was granted to the predecessor-in-interest of the respondents and subsequently to the respondents was irrevocable one on the ground that the respondents constructed a house over the suit property. It is also urged by Mr. Mahato that the learned Judge in 1st Appellate Court failed to appreciate the ratio of the decisions of P. Bhaskaran vs. Indian Iron and Steel Co. It is also urged by Mr. Mahato that the learned Judge in 1st Appellate Court failed to appreciate the ratio of the decisions of P. Bhaskaran vs. Indian Iron and Steel Co. Ltd., 71 CWN 302 and Ram Sarup Gupta (Dead) By Lrs vs Bishun Narain Inter College & Ors, (1987) AIR SC 1242. 14. Mr. Mahato refers to Section 60 of the Indian Easement Act which runs as hereunder:- "60. A licence may be revoked by the grantor unless- (a) It is coupled with a transfer of property and such transfer is in force; (b) The lisensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution." 15. According to Mr. Mahato the principle of Section 60 is not applicable in the instant case because the predecessor-in-interest of the appellants granted licence to the predecessor-in-interest of the respondents in respect of 2 1/2 decimal of land and permitted him to construct a kaccha room for his residence on condition that he will leave immediately after construction of a house elsewhere. Subsequently, the original plaintiff granted fresh lincence to the respondents for a limited period of time on similar condition as that of the first one. Thus, it is submitted by the learned Counsel for the appellant that the grantor had no intention to grant licence to Manmatha and thereafter to the respondents coupled with a transfer of property. PW1 in his cross examination clearly stated that licence was granted to Manmatha and after his death to the respondents only in respect of 2 1/2 decimal of land situate on the northern side of the suit plot. According to Mr. Mahato, learned Judge in the 1st Appellate Court failed to appreciate that the appellants had their residential house on the rest portion of the suit property morefully described in schedule 'Kha' of the plaint. Learned Judge failed to appreciate that a licence cannot claim possession in respect of the property which was not settled in his favour pleading hostile title over the same. The impugned judgment is erroneous because the learned Judge in 1st Appellate Court allowed the appeal by dismissing the suit making out a third case which has not been pleaded by either of the parties. 16. Mr. The impugned judgment is erroneous because the learned Judge in 1st Appellate Court allowed the appeal by dismissing the suit making out a third case which has not been pleaded by either of the parties. 16. Mr. Partha Pratim Roy, learned Advocate for the respondents, on the other hand, submits that though the Easement Act is not applicable in the state of West Bengal, the principle of the said Act is very much applicable. If the principle of Section 60(b) of the said Act is taken into consideration, it would be found that a licence becomes irrecoverable when the licensee makes some construction of permanent nature on the suit property. In the instant case, the defendants/respondents in their written statement clearly stated that defendant No.1 constructed a pucca house on the suit property after demolishing the mud house with the grant which he received under Indira Awaas Yojana. The defendants also stated in the written statement that his brother also applied for loan under Indira Awaas Yojana and it was granted. In course of evidence, DW1 stated that his brother also constructed a room under Indira Awaas Yojana during the pendency of the suit. Therefore, the defendants/respondents constructed permanent structures on the suit property and the licence becomes irrevocable. Therefore, the plaintiffs/appellants cannot evict the respondents from the suit premises. Mr. Roy further submits that defendants specifically stated in the written statement that after the death of original licensee Manmatha, the defendants/respondents, their mother and sisters jointly prayed for granting licence in respect of entire plot of land and the original grantor Khirod in presence of the appellants granted licence to them. So, they are in possession of the entire suit property. The name of Manmatha was recorded as permissive possessor in respect of the entire land. The plaintiffs/appellants did not make any prayer for recovery of possession of Kha schedule property stating, inter alia, that the said property remains under their possession but the evidence on record along with RS Record of Rights show that the predecessor-in-interest of the respondents and after his death the present respondents have been possessing entire 20 decimal of land and the appellants have no possession over the suit property. Accordingly it is submitted by Mr. Roy that there is no reason to interfere with the findings of the learned 1st Appellate Court. Accordingly it is submitted by Mr. Roy that there is no reason to interfere with the findings of the learned 1st Appellate Court. It is also pointed out that the original plaintiff did not come forward to depose during trial of the suit in spite of the specific case being made out by the defendants that they took fresh licence from the plaintiff. According to Mr. Roy the original plaintiff was the best person to say the extent and conditions of grant in favour of the defendants after the death of Manmatha. But he preferred to remain absent and did not face cross examination during trial of the case. Therefore, Mr. Roy invites the court to take adverse presumption against the appellants for withholding best evidence during trial of the suit. 17. Having heard the submission made by the learned Counsels for the appellant and the respondents, and on perusal of the materials on Lower Court record, it is ascertained that the defendants have not claimed any better title over the suit property than that of a licensee. The defendants tried to make out a case that they have been possessing Kha schedule property by plantation as well as cultivation continuously, openly and uninterruptedly from the life time of their father and thus they have acquired title by adverse possession. However, the specific case of the defendants/respondents is that after the death of Manmatha they took fresh licence from Khirod and his heirs. When the defendants have established their right to stay in the suit property as licensees, they cannot add some breadth claim adverse possession over the suit property, because the primary condition for claiming adverse possession is denial of title of the rightful owner. When the respondents admitted in their written statement that they were licensees under the appellants, they cannot claim title over 'Kha' schedule property by adverse possession. 18. On careful scrutiny of the materials on Lower Court record, it is further found that initially the original licensee made a mud house with thatched roof on 'Ka' schedule property. Subsequently, the defendants constructed pucca house with the help of Indira Awaas Yojana on Ka schedule property after demolishing the old mud house. 19. 18. On careful scrutiny of the materials on Lower Court record, it is further found that initially the original licensee made a mud house with thatched roof on 'Ka' schedule property. Subsequently, the defendants constructed pucca house with the help of Indira Awaas Yojana on Ka schedule property after demolishing the old mud house. 19. The only question that falls for adjudication in this appeal is as to whether by constructing such pucca rooms on the suit property the licence granted in favour of the respondents became irrecoverable or not. 20. The very concept of licence connotes the doing of another's land some work which, but for the licence, would be unlawful. Licence, as a general rule, is revocable at the will of the grantor. But the licensor cannot revoke the licence on the faith whereof works of the permanent character have been executed and expenses incurred, in any rate, till the licensee had been indemnified. 21. In Radhakrishna Hazra vs. Joykrishna Hazra, (1967) AIR Calcutta 204, it was held:- "11. In fairness to the defendant, however. Mr. Dutt, appearing on behalf of the plaintiff appellant, while he opined his case, intimated to me that he would not ask for any relief higher than that, which might have been available to him on the authority of the two decisions of this Court, referred to hereinbefore, and, in my view, that will be, in the circumstances of these cases, a perfectly equitable view and, accordingly, while allowing this appeal (S. A. 447 of 1960) and allowing the plaintiff's claim for eviction, I will subject such decree to two conditions, namely, that, for the constructions, made by the defendant, and the expenditure, incurred by him in that connection, on the disputed land, he will be entitled to adequate compensation from the plaintiff before the plaintiff can be allowed to recover possession and, further, that the defendant should have, at least, a year from this date, for vacating the disputed properly." 22. I have already stated that the predecessor of the present appellants, i.e., the original plaintiff filed the suit with specific pleading that Manmatha was granted licence in respect of 2 1/2 decimal of land on the northern side of the suit plot for residential purpose on condition that he would vacate the suit property as and when called upon by the grantor. After the death of Manmatha the defendants and their mother prayed for granting licence in favour of them and the said appellants accordingly granted licence on same terms and conditions in respect of Ka schedule property. In written statement the defendants admitted that Manmatha was granted lincence in respect of 'Ka' schedule property but after his death on request of the respondents, the appellants granted licence in respect of the entire property. Both the parties claimed that they are in possession of Kha schedule property by planting trees and cultivating leafy vegetables. It is, however, important to note that in the written statement the respondents did not specifically state that they are in possession of Kha schedule property by planting trees and cultivating the land. On the other hand, from the cross examination of DW2 it clearly reveals that there are different trees on the southern side of the suit property. A portion of southern side land is used for agriculture. The said southern side land is possessed by the plaintiffs/appellants. In view of such evidence, the claim of the respondents that they were granted lincece in respect of southern side of the suit plot, described in schedule Kha of the plaint proves to have been false. 23. In Radha Krishna Hazra (supra) it is observed by this court that deciding factor as to whether a licence is revocable or irrevocable does not depend on the fact that the licensee had made permanent structure over the property granted to him. The licensee is under obligation to prove that he had made permanent structure spending considerable amount of money acting on the licence. It is not disputed that the term of licence granted to the respondents was that they would stay in Ka schedule property temporarily till construction of their house elsewhere and they would vacate the suit property as and when required by the licenser. Even if the respondents constructed pucca house with the grant of Indira Awaas Yojana, it would not trouble this court, as it is found that whatever constructions were made by the defendants and whatever expenditure was incurred by him in that connection, cannot be said to have been made or done by him, acting on the licence. Even if the respondents constructed pucca house with the grant of Indira Awaas Yojana, it would not trouble this court, as it is found that whatever constructions were made by the defendants and whatever expenditure was incurred by him in that connection, cannot be said to have been made or done by him, acting on the licence. In other words, the grant of licence did not permit the respondents to construct permanent structure over the suit property especially when the licence was granted with the condition that the respondents would vacate the suit premises on the requisition by the appellants. The respondents, therefore, properly speaking would not have been entitled to any relief or protection, either under Section 60 of the Easement Act or the principle, underlying the same. In view of the above discussion, I hold that the licence that was granted by Khirod in favour of the Manmatha and subsequently by the appellants in favour of the respondents is not irrevocable licnce. Secondly, RS Record of Rights is a document of possession. In RS Record of Rights, name of Manmatha Mandal was rightly recorded under remark column as permissive possessor. Such recording in final published Record of Rights does not confer any title to Manmatha or his heirs. Learned Judge in 1st Appellate Court misdirected himself holding the respondents holders of irrecoverable licence on the strength of finally published Record of Rights. If the licence contains a term granting the respondents authority to raise permanent structure, any construction made by the respondents might have been treated as irrevocable licence because, in such case, it might have been held that such construction on Ka schedule property was made by respondents acting on the licence. In the absence of such presumption, I am not in a position to hold that the licence which was granted in favour of the respondent was irrevocable licences. 24. I also hold that the respondents failed to prove their possession over 'Kha' schedule property as licensees. 25. In Radhakrishna hazra (supra), this Court was called upon to answer if a license granted to the defendant becomes irrevocable because of the fact that certain constructions were made by the defendant on the land, held by him under the license and some expenditure was incurred by him in that connection in view of the principle contained in Section 60 of the Easement Act. This Court was pleased to hold that even if the defendant erected some pucca structures and had spent some money for the same, he would not be entitled to the benefit of Section 60(b) of the Easements Act, as the defendant failed to prove that such construction was done by him acting on the license or within the terms of the license. 26. In the instant case, the appellants specifically pleaded that Khirod Chakrabarty granted license to Manmathafor a limited period of time to stay in 'Ka' schedule property by constructing a mud house on condition that he would vacate the suit land after constructing his own residential house elsewhere. Subsequently, after the death of Manmatha, the respondents requested the appellants to permit them to stay in the suit property. Therefore, fresh license was granted to the respondents. It is not pleaded by the respondents that license was granted in favour of him with permission to erect permanent structure on the suit property. It was not within the terms of the license. So, the respondents cannot take benefit of raising permanent structure on 'Ka' schedule property and claim to have protected on the principle of Section 60 of the Easements Act. 27. At the same time, I am not unmindful to note that the defendants raised permanent structure over 'Ka' schedule property and have been residing there for long. Therefore, under the facts and circumstances of this case, bearing in mind the principle of equity, I am inclined to allow the appeal and claim of the plaintiffs/appellants for eviction of the defendants/respondents, subject to the condition that the respondents are entitled to get adequate compensation for construction of permanent structure. 28. For the reasons stated above, the instant 2nd Appeal is allowed on contest, subject to the condition that the respondents shall get compensation for the structure made by them on 'Ka' schedule property. 29. The learned Judge, 1st Appellate Court, is directed to assess the amount of compensation payable to the respondents by the appellants taking into consideration the present market value of the permanent structure standing on 'Ka' schedule property. 29. The learned Judge, 1st Appellate Court, is directed to assess the amount of compensation payable to the respondents by the appellants taking into consideration the present market value of the permanent structure standing on 'Ka' schedule property. For the purpose of assessment, the learned Judge, 1st Appellate Court shall direct the Directorate of Registration and Stamp Revenue, Government of West Bengal to submit the valuation of the structure standing on 'Ka' schedule property within three months from the date of receipt of Lower Court Records and direct the appellants to pay the amount of compensation so assessed within three months from the date of assessment. 30. The respondents shall quit, vacate and deliver up peaceful possession of the suit property in favour of the appellants within 15 days of receipt of the compensation. 31. If the respondents refuse to accept such compensation so assessed, the appellants shall deposit such amount of compensation in the Court below before putting the decree in execution. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.