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Allahabad High Court · body

2020 DIGILAW 195 (ALL)

Dharmendra Yadav v. Girish Kumar Sahni

2020-01-18

PRADEEP KUMAR SRIVASTAVA

body2020
JUDGMENT : 1. Heard Shri Manish Goyal, Senior Advocate assisted by Shri Nikhil Mishra, learned counsel for the appellant and Shri H.N Singh, Senior Advocate assisted by Shri Vineet Kumar Singh, learned counsel for the respondent. 2. This second appeal has been filed by defendant-appellant Dharmendra Yadav against the judgment and decree dated 21.09.2019 passed by Additional District Judge, Court No. 2, Allahabad in Civil Appeal No. 109 of 2018 arising out from Original Suit no. 1095 of 2011 between both the parties by which the learned Additional District Judge, Court No. 2, Allahabad has partly reversed the impugned judgment of the learned trial court in Original Suit No. 1095 of 2011 passed on 20.09.2018 by which Civil Judge (SD), Allahabad and has decreed the suit in toto. 3. From the perusal of the record attached with this second appeal, it appears that the civil suit no. 1095 of 2011 was filed by the respondent Girish Kumar Sahini (plaintiff in the suit) against the appellant Dharmendra Yadav (defendant in the suit) for mandatory injunction in respect of disputed shop no. 3, Bahuguna Market, Allahabad, alleging that the plaintiff purchased the said disputed shop on 27.03.2003 from Allahabad Development Authority by a registered sale deed. On or around 01.05.2003, the defendant gave a proposal for purchasing the disputed shop on payment of Rs. 4,50,000/-and also promised to get the sale deed executed within 6 months after paying the sale amount. Relationship between the parties was cordial and the defendant requested the plaintiff to give him the disputed shop on licence. Because of cordial relationship and on the assurance of defendant, he gave the shop to the defendant on his request on licence. The defendant, however, neither made the payment of sale amount to the plaintiff nor he took any step for execution of the sale deed. Realizing the dishonest intention of the defendant, in December 2006, the plaintiff refused to sell the said shop to him and asked him to vacate the shop and demanded Rs. 4,500/-monthly as damages. Defendants' brother Rakesh Yadav had purchased the shop no. 4 of Bahuguna Market and the defendant without any permission of the plaintiff demolished the intervening wall existed between shop no. 3 and 4 and converted the same into one shop. 4,500/-monthly as damages. Defendants' brother Rakesh Yadav had purchased the shop no. 4 of Bahuguna Market and the defendant without any permission of the plaintiff demolished the intervening wall existed between shop no. 3 and 4 and converted the same into one shop. The plaintiff gave notice to defendant on 02.09.2011 revoking the licence and asking the possession of the said disputed shop with a monthly damage at the rate of Rs. 4,500/-. The defendant did not deliver back the possession of the shop nor paid the damage. Hence, the suit was filed by the plaintiff. 4. The defendant in his written statement denied the allegations of the plaintiff and stated that the plaintiff entered into an agreement to sell the disputed shop to defendant on a consideration of Rs. 4,50,000/-and the same was paid by the defendant and thereafter the plaintiff delivered the possession of the shop. The plaintiff is bound to execute the sale deed of the disputed shop on the basis of the said agreement to sale. After getting possession of the disputed shop, the defendant made a lot of development and spent enough money on the disputed shop and renovated it for the purpose of business. He was never a licensee nor the possession was delivered to him as licensee and the plaintiff took the whole amount and gave him the shop. The defendant was always ready and prepared to get the sale deed executed. It was agreed between them that the defendant or his brother Rakesh would make the payment of Rs. 4,50,000/-to plaintiff and the plaintiff after purchasing the disputed shop from Allahabad Development Authority will execute sale deed in favour of defendant. In pursuance of the said contract, the defendant paid Rs. 80,000/-by account payee cheque drawn on Oriental Bank of Commerce dated 01.02.2003. The remaining amount of Rs. 3,70,000/-was paid in cash on 01.05.2003. Raising legal pleas of Section 41 of Special Relief Act, Order 7 Rule 11(D) C.P.C., the defendant has stated that the plaintiff is not entitled for any relief. The defendant has given adequate reply in response to the notice of the plaintiff dated 02.09.2011. Shop no. 2, 3 and 4 of the Bahuguna Market are situated in a row and above these shops, residential accommodation is situated and the same has been allotted by the Allahabad Development Authority. Shop no. 2 is allotted to defendant and shop no. The defendant has given adequate reply in response to the notice of the plaintiff dated 02.09.2011. Shop no. 2, 3 and 4 of the Bahuguna Market are situated in a row and above these shops, residential accommodation is situated and the same has been allotted by the Allahabad Development Authority. Shop no. 2 is allotted to defendant and shop no. 4 is allotted to his brother Rakesh Yadav and shop no. 3 (disputed) is allotted to plaintiff. The plaintiff is not entitled to get back the possession over the disputed shop. The defendant has a joint family with joint business and shop no. 3 is run jointly by him and his brother Rakesh Yadav. 5. Replication has been filed by the plaintiff in which the earlier allegations of the plaint has been repeated and it has been alleged that the defendant is bound to vacate the disputed shop and the payment of Rs. 80,000/-made by Rakesh Yadav has no connection with the disputed shop. 6. The learned court below framed the following issues:- 1. Whether Rs. 4,50,000/- has not been paid to the plaintiff by the defendant as per agreement 2. Whether the possession of disputed shop no. 3, Bahuguna Market, Allahabad has been given to the defendant by the plaintiff as licensee as alleged in para 4 of the plaint? If yes whether defendant is in possession over disputed shop no. 3 as licensee? 3. Whether the defendant has removed middle wall situated between disputed shop no. 3 and shop no. 4 as alleged in para 4 of the plaint and both has been amalgamated? If yes whether the plaintiff is entitled to get restored status quo ante? 4. Whether the alleged license given to the defendant has been revoked by the plaintiff through notice dated 02.09.2011? If yes then effect? 5. Whether defendant has not handed over the possession of the disputed shop in compliance of the notice to the plaintiff? If yes whether the plaintiff is entitled to get possession of the disputed shop no. 3? 6. Whether the plaintiff is entitled to get Rs. 4,500/- per month from the defendant from 18.10.2008 to 18.02.2011, total Rs. 1,62,000/- as use of the shop and compensation and Rs. 2,275/- as expenses of notice total Rs. 1,64,275/-? 7. Whether the plaintiff is entitled to get Rs. 3? 6. Whether the plaintiff is entitled to get Rs. 4,500/- per month from the defendant from 18.10.2008 to 18.02.2011, total Rs. 1,62,000/- as use of the shop and compensation and Rs. 2,275/- as expenses of notice total Rs. 1,64,275/-? 7. Whether the plaintiff is entitled to get Rs. 200 per day as uses of the disputed shop from the defendant as compensation? 8. Whether suit is barred by order 7 rule (11D) of the Civil Procedure Code as alleged in para 12 of the written statement? 9. Whether suit is under valued? 10. Whether the court fee paid is insufficient? 11. Whether the plaintiff is entitled to get any relief? 7. Evidence was given from both the sides by way of oral evidence and documentary evidence. 8. After hearing both the sides the learned Civil Judge (SD), Allahabad by his judgment dated 20.09.2018 partly decreed the suit of plaintiff for necessary expenses against water tax, house tax, property tax with 9% simple interest per annum till the continuation of the licence. For remaining relief the suit was dismissed. 9. Against this judgment, the appeal was filed by the plaintiff numbered as Civil Appeal No. 109 of 2018 which was decided by the impugned judgment of Additional District Judge, Court No. 2, Allahabad vide judgment and order dated 21.09.2019. by which the appeal has been allowed and the suit of the plaintiff has been decreed with the direction to the defendant to restore the previous status of the disputed shop and hand over the possession within 30 days. Defendant has been also directed to pay Rs. 4,500/-per month to the plaintiff as damage for use and occupation from the date of service of notice i.e. 03.09.2011 till he does not vacate the disputed shop. It has also been directed that if the defendant fails to comply, the plaintiff shall be at liberty to get restored the possession of the disputed shop and realize the damages according to law. 10. Aggrieved by the judgment of the first appeal this second appeal has been filed. 11. The appellant has raised following substantial question of law in this second appeal: 1. 10. Aggrieved by the judgment of the first appeal this second appeal has been filed. 11. The appellant has raised following substantial question of law in this second appeal: 1. Whether the plaintiff-respondent was entitled to the equitable remedy in form of a decree of mandatory injunction having approached the court with unclean hands by deliberately concealing the fact that he was not entitled to enter into any agreement in relation to the property in dispute without prior approval of Allahabad Development Authority? 2. Whether the suit filed by the plaintiff-respondent was liable to be dismissed being vague as the plaint did not disclose the nature or terms of the licence alleged to have been granted to the defendant-appellant? 3. Whether the findings of the lower Appellate Court are perverse in as much as it ignored the statement of the witnesses and misread the statement of the witness of defendant and also did not notice the cross-examination of the plaintiff and further went beyond the pleadings and misplaced itself by placing undue reliance upon inapplicable provisions of the Transfer of Property Act, 1882, Indian Contract Act, 1872 and The Indian Easement Act, 1882? 4. Whether the lower appellate court erred in holding that the defendant-appellant is not entitled to claim benefit of Section 60(b) of the Indian Easements Act, 1882 without reversing the categorical finding arrived at by the learned trial curt holding that the conditions prescribed under Section 60(b) of the Act were met by the defendant-appellant? 5. Whether the lower appellate court was justified in setting aside the finding of trial court without setting out the reasons as per the law laid down by the Hon'ble Supreme Court in the case of Sarju Pershad v. Jwaleshwari Pratap Narain Singh (reported in AIR 1951 SC 120 )? 12. The learned senior advocate for the appellant has referred to the judgment in Hero Vinoth (minor) v Seshamal (2006) 5 SCC 545 in order to show the meaning of 'substantial question of law' which is a pre-condition for exercising the jurisdiction of second appeal. 12. The learned senior advocate for the appellant has referred to the judgment in Hero Vinoth (minor) v Seshamal (2006) 5 SCC 545 in order to show the meaning of 'substantial question of law' which is a pre-condition for exercising the jurisdiction of second appeal. There, the Supreme Court has laid down: “A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provision of law or binding precedent, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In second type of cases, the substantial question of law arises not because the law is debatable, but because the decision rendered on a material question, violates the settled position of law.” 13. The learned Senior Advocate for the appellant has argued that the plaintiff filed a suit for mandatory injunction which is an equitable relief and for that relief the plaintiff was legally expected to come with clean hands. The suit premises was allotted to the plaintiff by ADA and in the allotment letter it is a condition that for a period of 5 years, he would not transfer the shop. He accepted payment from the defendant, concealing the terms of allotment, and transferred the shop to the defendant. The learned lower appellate court completely ignored this fact and committed error in giving relief to the plaintiff. 14. There is no dispute with regards to the terms of allotment. But, it is not admitted by the plaintiff that he entered into an agreement to sell out the alleged shop to the defendant and for that he took the total consideration amount. 14. There is no dispute with regards to the terms of allotment. But, it is not admitted by the plaintiff that he entered into an agreement to sell out the alleged shop to the defendant and for that he took the total consideration amount. The learned appellate court has found that it was not correct that any agreement to sale was executed by the plaintiff in favour of the defendant. Presumption could also be not raised as a contract to sale for immovable property is required to be in writing and it should be registered. There is no contract in writing and as such there is no question of registration. Therefore, oral agreement to sell immovable property is not enforceable at law nor the same can create any right in respect of the disputed shop in favour of the defendant. Therefore, this argument is of no avail as there is no transfer of the shop and no agreement to sell was ever executed by the plaintiff. A finding to that affect has been given by both the courts below and that finding, being a finding of fact, has become final and cannot be interfered in second appeal. There is yet another reason to render the submission of the appellant-defendant baseless as the defendant himself has alleged that shops no. 2,3 and 4 are situated in a row and are constructed by ADA. Out of these 3 shops, shop no.2 has been allotted to the defendant and shop no. 4 has been allotted to his brother. Shop no. 3 has been allotted to the plaintiff. The defendant claims that his family is joint. In such situation, when two adjacent shops are allotted to him and his brother, it can be presumed that he must be having full knowledge of that condition in the allotment letter. As such he cannot be permitted to say that the plaintiff did not inform him about the aforesaid condition and he was misled by the plaintiff. 15. Another argument is that the learned lower appellate court reversed the finding of the trial court without assigning reasons for setting aside the findings and it raises substantial question of law. As such he cannot be permitted to say that the plaintiff did not inform him about the aforesaid condition and he was misled by the plaintiff. 15. Another argument is that the learned lower appellate court reversed the finding of the trial court without assigning reasons for setting aside the findings and it raises substantial question of law. The learned appellate court overlooked the fact that the trial court has greater opportunity of appreciating the oral evidence and the lower appellate court should be very slow in differing with the conclusion of the trial court unless the finding arrived at by the learned trial court is wholly improbable. From the perusal of the record attached and the judgments of the two courts below, it is clear that the learned trial court concluded that the appellant-defendant was in possession of the shop as licensee and that finding of fact was never challenged in the first appeal and the same became final. The only issue before the appellate court was with regards to the nature of licence whether revocable or irrevocable. Therefore, that part of the argument has no force that the lower appellate court did not give finding determining the status of appellant-defendant. 16. It has been also submitted that the plaint of the plaintiff was vague as he did not disclose the terms of licence. For two reasons this argument lacks merit. Firstly, the definition of 'license' itself. The term 'license' has been defined in section 52 of the Easement Act defines license as follows: “52. “license” defined- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.” 17. It is not necessary that for the purpose of creation of license any instrument be written and the grant of license may be express or implied as provided by section 54 of the Act. The learned trial court on the basis of evidence on record recorded the finding that the defendant was in possession of the disputed shop on the basis of implied license. The learned trial court on the basis of evidence on record recorded the finding that the defendant was in possession of the disputed shop on the basis of implied license. License, therefore, is merely for the use of the licensed property by the grantee and it does not create any interest in the property and a licensee is not legally entitled to maintain a suit for possession against the grantor. There was an oral understanding between both that within six months a sale deed will be executed on payment of consideration amount and it has come in the statement of the plaintiff that for this six months, the plaintiff gave the disputed shop on license because of cordial relationship and on the request of the defendant. Moreover, the license is in respect of a shop and therefore, the use thereof is limited for that purpose by necessary implication. In a case of implied license, it is not possible to spell out the terms and conditions of the license except that the same was given to the licensee on his request for use the same as a shop. Therefore, I do not find any force in this argument. 18. The learned counsel to the appellant-defendant has further argued that the learned lower appellate court pointed out that once the learned trial court reached to finding that the defendant is a licensee, on the basis of oral agreement, made out a third case of irrevocable licence in favour of the defendant, whereas, the defendant never pleaded himself to be licensee, and dismissed the suit so far as relief of eviction and possession is concerned. The submission of the learned counsel is that he was in possession of the disputed shop on the basis of the agreement between the parties and not on the basis of any license granted by the plaintiff and therefore, he was wrongly considered to be a licensee and as such the court below committed an error in arriving at the conclusion of license. 19. 19. In Himmatrao Marotrao Dhobale v Arun Gulabrao Jichkar 2014 SCC On Line Bom 1252, as referred by the learned senior advocate for the respondent-plaintiff to contradict the argument advanced from the side of the appellant-defendant, there was pleading of plaintiff that the defendant is a licensee of the suit plot which was denied by the defendant who stated that he offered to purchase the suit land but the plaintiff avoided and later on in the knowledge of the plaintiff, he constructed a house thereon. A plea of estoppal was taken. The same was rejected and the trial court concluded on the basis of evidence on record that the plaintiff proved the defendant to be licensee and the defendant cannot be denied the benefit of section 60(b) of the Easement Act on the ground that he denied himself to be licensee. Once it is found that despite deficiency in the pleadings, the parties knew the case and proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleading in appeal. To further authenticate this view, the judgment in Bhagwati Prasad v Shri Chandramouli AIR 1966 SC 735 may be referred. 20. In view of above discussion, even if the appellant-defendant did not plead himself to be licensee, he rather denied that he is a licensee of the disputed shop, once a finding was reached that he was a licensee in the disputed shop and that finding of the trial court was not disturbed by the learned lower appellate court, section 60 (b) of the Easement Act became applicable. 21. So far as the argument with regard to the oral agreement is concerned, the law is settled that oral agreement to sell immovable property has no legal affect and is not admissible in evidence altogether. In Mool Chand Bakhuru v Rohan (2002) 2 SCC 612 , the issue before the Court was whether a person, claiming to be a proposed vendee, can protect his possession of an immovable property on the plea of part performance under section 53-A of the Transfer of Property Act on the basis of an oral agreement, the terms of which have not been reduced in writing? Section 53-A of the Transfer of Property Act reads as follows: “53A. Section 53-A of the Transfer of Property Act reads as follows: “53A. Part performance.- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some work in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or part-performance thereof.” 22. It is clear from the above provision itself that in order to attract the said provision, there should be an agreement to transfer immovable property for consideration and it should be in writing and signed by the transferor coupled with delivery of possession of such property and the vendee cannot protect his possession on the basis of an oral agreement. This view finds support from the judgment in Nathulal v Phoolchand (1969) 3 SCC 120 and Sardar Govindrao Mahadik v Devi Sahai (1982) 1 SCC 237 . In Mool Chand Bakhuru (supra), there was no agreement in writing and only letters of the vendor were brought on record in which he had shown his willingness to sell his immovable property. The Supreme Court remarked: “At the most it is an admission of an oral agreement to sell and not a written agreement. Statutorily, the emphasis is not on a written agreement only. In addition, the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainty from the written document. There was no meeting of minds. Statutorily, the emphasis is not on a written agreement only. In addition, the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainty from the written document. There was no meeting of minds. Admission made by Mool Chand of an oral agreement to sell does not spell out the other essential terms of the agreement to sell such as the time frame within which the sale deed was to be executed and as to who would pay the registration charges etc. the letters written by Mool Chand cannot be taken to be an agreement to sell within the meaning of Section 53A spelling out the terms of an agreement for sale.” 23. In the case in hand, the learned trial court, after taking into consideration the evidence on record, arrived at the conclusion that there was no written agreement to sell of the disputed shop executed between the parties. This finding of fact was never challenged by the appellant by filing any appeal and therefore, that finding of fact became final and that cannot be subjected to scrutiny in the second appeal. Consequently, it is also not relevant what money was advanced and by whom, by the appellant or his brother. The learned trial court also gave finding that the appellant-defendant was a licensee in the disputed shop and that has also not been challenged by the defendant by filing any appeal against that finding and therefore, that finding of fact also became final and the same cannot be put to scrutiny in this second appeal. Therefore, the dispute involved a limited question of revocability of the licence in view of section 60(b) of the Easement Act. 24. The learned trial court held that the possession of the defendant over the disputed shop was based on implied licence and because the plaintiff failed to establish terms of licence and the notice for revocation was ineffective as the possession was delivered on the basis of oral agreement and the agreement continued between the parties and also that the defendant had removed the intervening wall between the disputed shop and the other shop, the licence was neither revoked nor was revocable. 25. 25. The lower appellate court, however, concluded that once it is found that there was no agreement in writing, the defendant could not protect his possession on the basis of oral agreement if any and the provision of section 53A of the Transfer of Property Act could not be attracted. This finding was based on the settled position of law in view of the judgments in Nathulal (supra) Sardar Govindrao Mahadik (supra) and Mool Chand Bakhuru (supra). Further, the learned lower appellate court concluded on the basis of joint reading of sections 2(d), 2(g), 2(h), 8, 31 and 39 of the Indian Contract Act, sections 5, 9, 53A, 54 and 49 of the Transfer of Property Act and section 17 of the Indian Registration Act and several judgments that a contract for sale of immovable property is required to be not only in writing but also the same is required to be registered, otherwise, the same will have no legal effect and will not be enforced in a court of law and the same shall not be admissible in evidence except in a suit for specific performance of a contract or as evidence of any collateral transaction not required to be affected by registered instrument. It was further held by the learned lower appellate court that a licence does not create a right or interest in the property and the licensee is not legally entitled to a notice to quit before eviction, even then, the plaintiff served a legal notice dated 2.9.2011 revoking the licence and to vacate and deliver the possession of the shop after restoring the intervening shop status quo anti before filing of the suit. After service of this notice, the defendant was legally expected to vacate and deliver back the possession of the disputed shop. 26. As pointed out earlier in this judgment, the moment it was held concurrently by both the courts below that the appellant-defendant was a licensee in the disputed shop, the issue of revocability of the license ought to be determined whether the defendant denied or accepted the plea of license or not. 26. As pointed out earlier in this judgment, the moment it was held concurrently by both the courts below that the appellant-defendant was a licensee in the disputed shop, the issue of revocability of the license ought to be determined whether the defendant denied or accepted the plea of license or not. Section 60 of the Easement Act reads as follows: “License when revocable.- A license may be revoked by the grantor, unless- (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.” 27. The very provision of section 60 shows that license is revocable in the first case when coupled with transfer of the property which is subject matter of such license. Needless to mention that transfer means a transfer which is legally effected and enforceable within the provisions of the Indian Contract Act read with the Transfer of Property Act and the Indian Registration Act. Therefore, in the facts of this case section 60(a) is not applicable. In this case the provision of section 60(b) has been sought to be applied from the side of the appellant-defendant which relates to the execution of work of permanent character in the disputed shop. 28. The submission of the learned counsel for the appellant is that the learned trial court after considering the pleadings and evidence on record, gave a categorical finding that the licence in favour of the appellant-defendant had become irrevocable because of permanent construction made therein. Another argument which has been advanced by the appellant is that after taking disputed shop from the plaintiff, he made development of permanent nature in the said shop. He has submitted that plaintiff respondent has himself admitted this fact. Moreover, the defendant-appellant has made categorical pleading and has tendered positive evidence to show that construction of permanent nature was made in the disputed shop. This fact has not been controverted by the plaintiff respondent, either in pleading or in evidence. 29. Learned counsel to the appellant has also submitted that in order to determine the nature of construction, whether it is permanent or temporary, the nature of the constructed structure and the intention with which it was made, is relevant factor. This fact has not been controverted by the plaintiff respondent, either in pleading or in evidence. 29. Learned counsel to the appellant has also submitted that in order to determine the nature of construction, whether it is permanent or temporary, the nature of the constructed structure and the intention with which it was made, is relevant factor. Evidence on record clearly indicates that the construction of permanent nature has been made in the shop with the intention of using the same for a long period. It has been further submitted that the learned trial court, after considering the pleadings and evidence of the parties gave a finding that the defendant-appellant made construction of permanent nature in the disputed shop but, the learned appellate court has ignored this fact and has even not considered this aspect. Admittedly, the wall between the two shops was removed in order to make the same a single showroom and this shows that the disputed shop was materially altered and permanent construction was raised which is continuing since the year 2003. In support of this contention, the learned counsel has taken reference of the judgment in Venkatalal G. Pittie v Bright Bros (Pvt) Ltd., AIR 1987 SC 1939 . He has also referred two other judgments on this aspect of two different High Courts in Surya Properties Pvt. Ltd. v Vimalendu Nath Sarkar, AIR 1964 CAL 1 and Leena Roy Choudhary v Indumati Bose, AIR 1980 Patna 120. 30. In Venkatalal (supra), the Supreme Court has discussed the principle for determination of a permanent construction. A perusal of the facts of the case shows that the suit was filed for arrears of rent and vacation of the tenanted premises on the basis of unauthorized construction of permanent nature, damage to wall and floor. A suit was also filed for removal of the unauthorized construction and to restore the suit premises in its original condition. The Supreme Court held that the court has to come to the conclusion regarding work of permanent character on the examination of the nature of structure, the nature of the duration of structure, the annexation and other relevant factors for erecting the constructions by the tenant on the demised premises and the mere fact that a different view can be taken by the trial court, the appellate court cannot interfere with such finding. It is very much clear from the perusal of the said judgment that on fact, judgment was delivered in a very different scenario and there was not much dispute with regard to the fact that permanent construction was raised by the tenant which included new and permanent flooring, tenant had sunk in pillars and stanchions into the flooring for the support of cabins and several rooms, therefore, the learned trial court came to the conclusion that the cabin lofts and pillars supporting the same were attached to the flooring as well as to the walls and columns of the made structure, therefore, it was found to be a permanent structure. In my view, Venkatalal (supra) has been decided on different facts as it was found that construction of permanent nature was erected by the tenant. In the case in hand before this Court, except removal of intervening wall and some fixture, there is no construction made as such by the appellant-defendant inside the disputed shop. 31. In Surya Properties (supra), as referred in Leena Roy Choudhary (supra) while defining 'permanent structure', the Calcutta High Court remarked that 'structure' must be distinguished from the words like 'fixture' and it means something constructed as 'building.' The Court held, “…...in deciding whether a construction is permanent or temporary two factors are of primary importance namely, the nature of structure and the intention with which it is made. If the nature of the structure is such that the structure will endure for a long time, i.e. so long as the tenant expects to remain there as a lessee, and the intention of the lessee in constructing the structure is that he shall use it as long as he remains a lessee, the construction will be regarded as a 'permanent construction' within the meaning of S. 108(p) of the T.P. Act even though the consideration may be capable of removal without causing permanent damage to the leased premises.” 32. In Leena Roy Choudhary (supra), the issue of breach of terms of tenancy was involved as the appellant had constructed without permission of the landlord a kitchen of brick wall on open terrace demolishing side walls of the old kitchen and also made unauthorized alteration in the stair case and varandah. The first appellate court held this construction and demolition to be material alteration in the tenanted portion and directed for eviction of the tenant. The first appellate court held this construction and demolition to be material alteration in the tenanted portion and directed for eviction of the tenant. The second appeal against this decision was dismissed by the High Court. Needless to mention here that all the above referred cases were factually different as admittedly permanent construction was found to have been raised. 33. Reference has been also taken of the two judgments of this court in Amjad Khan v Shafiuddin AIR 1925 All 203 and Sitara Shahjahan Begam v Munna AIR 1927 All 342 , the first relating to licensee and the other was a case of lessee and in both the cases permanent construction was admittedly raised and therefore, no benefit would result to the appellant-defendant in the facts of the case in hand except that in the first case, the legal position has been reiterated that a license cannot be revoked, if the licensee acting upon the license had executed a work of a permanent character. The same view has been further affirmed in Manzoor Ahamad v Muhammad Abdul Jamil AIR 1933 All 842. 34. In Ram Sarup Gupta v Bishun Narain Inter College (1987) 2 SCC 555 , a building and attached open land was leased and the same was converted into a licence in order to facilitate the recognition of the school. Thereafter, the grantor revoked the licence and asked to vacate and deliver possession. It was found that to meet the needs of school, permanent construction was raised on open land. The trial court dismissed the suit and the same was affirmed by the High Court. Matter reached to the Supreme Court. Keeping in view that the licence was granted to school of the building and attached open land for the purpose of imparting education, the Court dismissed the appeal and laid down as under: “The principle behind section 60 is that if a person allows another to build on his land in furtherance of the purpose for which he had granted licence, subject to any agreement to the contrary, he cannot turn round later on to revoke the licence. Section 60 is not exhaustive. The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence as contemplated by section 60 of the Act shall be irrevocable. Section 60 is not exhaustive. The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence as contemplated by section 60 of the Act shall be irrevocable. Similarly, even if the two clauses of section 60 are fulfilled to render the licence irrevocable yet it may not be so if the parties agree to the contrary. Such agreements may be in writing or otherwise and their terms and conditions may be express or implied. A licence may be oral also and in that case terms, conditions and the nature of the licence can be gathered from the purpose for which the licence is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of licence.” 35. The learned counsel to the respondent-plaintiff has pointed out that it was on the appellant-defendant to show by cogent evidence that the alteration made by him in the disputed shop was of permanent character and mere fixture inside on the walls befitting the same for the purpose of running shop, will not be taken to be an improvement of permanent nature. He has also submitted that it was the incumbent duty of the appellant-defendant to bring on record through commission or otherwise, the position of alteration claimed to be permanent in nature. In support of his arguments, the learned counsel has referred the judgment in Shanker Gopinath Apte v Gangabai Hariharrao Patwardhan AIR 1976 SC 2506 , Sant Lal Jain v Avtar Singh AIR 1985 SC 857 . 36. In Shanker Gopinath Apte (supra), the appellant claimed to be in possession of disputed land as tenant under a power of attorney on the basis of a written letter sent by the appellant to the respondent accepting the terms of power of attorney and agreeing to pay Rs. 2000/-per year, though the object of the power of attorney was to arm the appellant with a written authority to evict unauthorized occupants and to put appellant in possession as a potential purchaser. The appellant failed to prove himself tenant. He thereafter raised the plea in appeal of being licensee, without any such plea taken or evidence given before the courts below, and claimed that the license was irrevocable as he had executed the work of permanent character. The appellant failed to prove himself tenant. He thereafter raised the plea in appeal of being licensee, without any such plea taken or evidence given before the courts below, and claimed that the license was irrevocable as he had executed the work of permanent character. The Supreme Court observed as under: “But having spent some time in chasing the argument, we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or expenses incurred by the appellant. He has admitted in the evidence that the figures which he gave in his examination-in-chief as regards amount spent on improvements were stated from memory and that he has not produced his accounts to corroborate the oral word. Only one thing need to be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so “acting upon the licence” as required by section 60(b) of the Easement Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licence.” 37. In Sant Lal Jain (supra), the licensor instead of filing a suit for possession, filed a suit for permanent injunction after revocation of licence. It was held as under by the Supreme Court: “Further, the respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him during subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person.” 38. In the present case, no such construction has been shown to have been erected by the defendant. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person.” 38. In the present case, no such construction has been shown to have been erected by the defendant. It was alleged in the plaint by the plaintiff that the wall between the two shops was removed in order to make it one shop. Removal of wall and raising of wall are two different things. Raising of wall may amount to a permanent structure, whereas, removal of existing wall between two shops may not amount to permanent structure as there is no construction on the surface area of the shop nor there is any reduction in the surface area. 39. In this case, the disputed property is a shop constructed and allotted by ADA to be used as shop. Therefore, presumably, the surface area was covered by construction and because it was constructed by ADA, it can be inferred that the same must have been constructed according to approved plan and map. Admittedly, the intervening wall of the disputed shop and the adjacent shop was removed by the defendant. There appears to be no material on record to show that any construction was made inside the disputed shop. Fixture on the wall is not at all an improvement of permanent character. As such, the license in favour of the appellant-defendant remains of revocable nature and the conclusion arrived at by the learned lower appellate court is legally sustainable. 40. On the basis of above discussion, I find that all the questions raised by the appellant-defendant involves only question of fact which have been adequately addressed by the learned lower appellate court. There is no concealment of any such fact with regards to the terms of allotment which was not in the knowledge of the appellant-defendant. There is no vagueness in the plaint assertion. The judgment of the learned lower appellate court is based on the material on record and nothing substantial has been missed, misread and ignored so far as pleading and the evidence of the parties is concerned. There is no error in the finding that the defendant is not entitled to the benefit of section 60(b) of the Easement Act. The judgment of the learned lower appellate court is based on the material on record and nothing substantial has been missed, misread and ignored so far as pleading and the evidence of the parties is concerned. There is no error in the finding that the defendant is not entitled to the benefit of section 60(b) of the Easement Act. Despite the fact that the same was not discussed in depth and detail, as discussed above, the finding recorded so by the learned lower appellate court is a pure question of fact and on the basis of above discussion, I find that no otherwise conclusion was possible on the basis of facts alleged and evidence produced by the parties. The learned lower appellate court, by impugned judgment, has reversed the judgment of the learned lower court so far as it was decided against the respondent-plaintiff, on the sound reasons considering the evidence and law applicable to the facts and circumstances of the case. 41. On the basis of above discussion, I find that no substantial question of law is involved in this second appeal. The appeal lacks merit and is liable to be dismissed. 42. Accordingly, this second appeal is dismissed. The appellant-defendant shall vacate the disputed shop within 4 months and deliver back the possession thereof to the respondent -plaintiff. 43. The office is directed to transmit a certified copy of this judgment to the court below forthwith.