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Thursday, June 16, 2016

Indian Easement Act, 1882: Section 52, 60, 62, 63 and 64 License grant of--Express or implied--Also oral--To be inferred/ascertained from conduct of parties and circumstances leading to grant of license--When license becomes irrevocable--Person allowing another to build on his land without reserving any right to revoke--Whether entitled to revoke. Practice and procedure: Pleading--Form of--Undue emphasis not to be placed--Substance of pleading alone to be considered.

PETITIONER:
RAM SARUP GUPTA (DEAD) BY LRS.

Vs.

RESPONDENT:
BISHUN NARAIN INTER COLLEGE & ORS.

DATE OF JUDGMENT08/04/1987

BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
MUKHARJI, SABYASACHI (J)

CITATION:
 1987 AIR 1242  1987 SCR  (2) 805
 1987 SCC  (2) 555  JT 1987 (2) 76
 1987 SCALE  (1)700
 CITATOR INFO :
 R    1988 SC1845 (22)


ACT:
Indian Easement Act, 1882:
    Section 52, 60, 62, 63 and 64  License grant of--Express
or  implied--Also  oral--To  be inferred/ascertained from
conduct of  parties and circumstances leading to  grant  of
license--When  license becomes irrevocable--Person  allowing
another to build on his land without reserving any right  to
revoke--Whether entitled to revoke.
Practice and procedure:
    Pleading--Form    of--Undue  emphasis   not    to  be
placed--Substance of pleading alone to be considered.



HEADNOTE:
    The property in dispute was under the occupation  of  a
school managed by a Registered Education Society. The Socie-
ty was managing the respondent college also. The school was
not recognised and had no endowment and building of its own.
In order to secure recognition for the school, the President
of Society, who owned the property in dispute, informed the
Inspector  of Schools by a letter dated November  26,  1941,
that  he had given away the premises occupied by the  school
free  of  rent, which may be considered  as  his  permanent
contribution  to the cause of the school. Pursuant to  this,
the  school was recognised. To meet the need for  additional
accommodation the management made permanent constructions on
the open land attached to the building without any objection
by the donor or any of his family members.
    The donor had taken a considerable amount of  loan and
mortgaged  the property in dispute, alongwith a  number  of
properties  on March 27, 1957. In order to pay off the loan
the  property  in dispute was got discharged and  the  donor
alongwith  his three minor sons executed a sale deed  trans-
ferring the property in dispute to the plaintiff-appellant.
    The plaintiff-appellant served a notice on the  school
and  its  managing committee terminating their license and
directing them to restore the possession of property to him
and upon their failure to do so,
806
filed a suit for possession. The defendants pleaded that the
property  in dispute had been donated to the  school  perma-
nently and the school had made permanent  constructions  by
incurring expenses and, therefore, their license was irrevo-
cable.
    The trial court  dismissed the  suit  after  recording
findings to the effect that the property in dispute belonged
to  the joint family of which the donor  was Karta, that
though the  property  was donated to the  school  no  rifle
passed to  it or to any of the defendants as  the  property
being  immovable  could not be transferred  except  under  a
registered  deed,  and that in the absence of  the  transfer
deed, then donor continued to be the owner and could  trans-
fer  title in the property to the plaintiff, that under the
U.P.  Act. III of 1947 no allotment could validly be  issued
in  favour of the school as there was no vacancy or  likeli-
hood  of  vacancy, that though the property had been  given
away  to the school by the donor as permanent  contribution,
but in the absence of the registered deed, the transactions
amounted  to  a license only, and since the  defendants had
made  permanent constructions on the premises in  suit, li-
cense  was  irrevocable under Section 60(b)  of the  Indian
Easements Act 1882 and as the donor himself had no power  in
a law to revoke the license, the plaintiff being  transferee
from him could not acquire any better right and,  therefore,
he  was not  entitled to revoke the license  or  to  obtain
possession  of the property. In the appeal before  the High
Court there was difference of opinion between the two Judges
who  constituted the Division Bench and the matter  was re-
ferred to  a third Judge. By majority, the High  Court af-
firmed the  findings of the trial court and held  that the
license granted to the school was irrevocable and the appel-
lant was not entitled to any relief.
    In the appeal to this Court, it was submitted that the
trial court as well as the High Court both erred in  holding
that the license was irrevocable under Section 60(b) of the
Indian Easement Act, that the defendants had failed to raise
necessary pleadings on the question, no issue was framed and
no  evidence  was produced by them, that in the absence  of
requisite pleadings and issues, it was not open to the trial
court  and  the High Court to make out a new  case  for the
defendants  holding  the license irrevocable, and  that the
defendants  had failed to produce any evidence to prove the
terms and conditions of the license and that the donor being
Karta  of the Joint family could not alienate  the  property
permanently to the detriment of the minor co-sharers. It was
contended on behalf of the defendants-respondents that both
the courts had recorded findings of fact on appreciation  of
evidence  on  record,  that  the  license  granted  by the
donor/grantor was irrevocable and that
807
acting upon the license, the school had  made construction
for  the purposes of running the school and the license was
irrevocable and that necessary pleadings had been raised and
there was sufficient evidence in support of the pleadings.
Dismissing the appeal, this Court,
    HELD:  1.  Where license is granted for the purpose  of
running the  school without reserving any right  to  revoke
license and  if  the licensee erected works  of  permanent
nature, the grantor of license is not entitled to  recover
land, as the execution of work was for the purpose of school
and  it fails within the  expression "acting  upon the
licence". [821E-F]
    2. If a person allows another to build on his  land  in
furtherance of the purpose for which he is granted  license,
subject to  any agreement to the contrary, he cannot turn
round, later on, to revoke the license. This  principle  is
codified in Section 60(b) of the Indian Easements Act, 1882.
[823E-F]
    In the instant case, all the three conditions, viz. (1)
the licensee executed work of a permanent character, (ii) he
did  so acting upon the license, and (iii) he  incurred ex-
penses in doing so, as required by Section 60(b) of the Act
have been made out. [821A-B]
    3.1 License, as defined in s. 52 of the  Easements Act
means grant of permission, by a person to the other, 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. Such a right does not amount to  an
easement  or  any interest in the property.  The  rights  so
conferred is license. The grant of license may be  expressed
or  implied  which can be inferred from the conduct  of the
grantor. [817C-D]
    3.2 Section  60 of the Act enumerates  the  conditions
under which a license is irrevocable; firstly the license is
irrevocable  if it is coupled with the transfer of  property
and  such right is enforced, and secondly, if  the  licensee
acting upon the license executes work of permanent character
and incurs expenses in execution. But Sec. 60 is not exhaus-
tive. According to Section 62, a license is revocable at the
will  of the grantor and the revocation may be expressed  or
implied.  Where license is granted for a  specific  purpose,
and the purpose is attained, or abandoned, or if it  becomes
impracticable, the license shall be deemed to be  revoked.
[817G-H; E-F]
3.3  The  parties may agree expressly or  impliedly  that  a
license
808
which is prima facie revocable not falling within either  of
the  two categories of license as contemplated by s.  60  of
the  Act  shall be irrevocable. Such agreement may  be  in
writing or  otherwise, and its terms or conditions  may  be
express or  implied. A license may be oral  also,  in that
case,  terms, conditions and the nature of the license, can
be gathered from the purpose for which the license is grant-
ed  implied with the conduct of the parties and the  circum-
stances which may have let to the grant of license. [818D-E]
     3.4  License  had been granted to the  school  for the
purpose of running the school and imparting education to the
students, the license was not merely in respect of  building
alone  but it was also in respect of open land attached  to
the building. Additional accommodation was required and the
school carried out works on the open land which was appurte-
nant to the main building, with the knowledge of the  licen-
sor,  as  has  been found by the trial court  and  the High
Court. In view of the licensor's donation of the property to
the  school, and his subsequent conduct, the licensee  could
reasonably entertain a belief that the licensor had  permit-
ted  the construction on the land and in pursuance  thereof,
the  licensee made constructions and incurred expenses. The
result is that the respondents "acting upon the license" had
executed  works by incurring expenses which  rendered the
license irrevocable. [819C-E]
     3.5  If the licensee did not permit the school to exe-
cute  any  permanent constructions, the grantor would have
certainly raised objections. His conduct of acquiescence  to
the  raising  of constructions, is eloquent enough  to show
that the license was irrevocable. [819H; 820A]
     3.6The pleadings, evidence and circumstances  available
on record, have fully established that the donor had granted
license to the school in respect of building and  the land
attached  to it for the purpose of imparting  education and
the  school,  in  furtherance of  that purpose constructed
additional  building  and it further  incurred expenses  in
carrying  out  modifications and extensive  repairs  in the
existing  building during the period the donor continued  to
be the President of the Managing Committee of the school and
he never raised any objection to it and there is nothing  on
record to show that licensee had retained right  to  revoke
the license. [823D-E]
     3.7  The  conduct of the parties has  been  such that
equity will  presume the existence of a  condition  of the
license by plain implication to show that license was per-
petual and irrevocable. That being so, the   grantor  could
not revoke the license or evict the school and the appel-
809
lant being transferee from him could not and did not acquire
any better right. The appellant. therefore, has no right  to
revoke the license or to evict the school, so long  as the
school continues  to carry on the purposes  for  which the
license was granted. [823F-G]
    4.1 In  the  absence of pleadings, evidence,  if any,
produced  by  the  parties cannot be  considered.  No  party
should be permitted to travel beyond its pleadings and all
necessary and material facts should be pleaded by the  party
in support of the case set up by it. The object and  purpose
of  pleading  is to enable the adversary party to  know the
case  it  has to meet. In order to have a fair trial  it  is
imperative that the party should state the essential materi-
al  facts so that other party may not be taken by  surprise.
The  pleadings, however, should receive a liberal  construc-
tion,  no  pedantic  approach should be adopted  to  defeat
justice on hair-spliting technicalities. Sometimes pleadings
are  expressed in words which may not expressly make  out  a
case  in  accordance with strict interpretation of  law.  In
such  a case, it is the duty of the Court to  ascertain the
substance of the pleadings, to determine the question. It is
not desirable to place undue emphasis on form; instead, the
substance of the pleadings should be considered. [814C-F]
    4.2 Whenever  the question about lack of  pleadings  is
raised, the enquiry should not be so much about the form  of
the  pleadings; instead, the court must find out whether  in
substance the parties knew the case and the issues. Once  it
is found that inspite of deficiency in the pleadings parties
knew the case and they proceeded to trial on those issues by
producing evidence, it would not be open to a party to raise
the question of absence of pleadings in appeal. [814F-H]
    In the instant case, the plaintiff knew the case he had
to  meet.  and for that purpose he produced  the  donor  in
evidence  in support of his plea and that the license was  a
simple license and it was not irrevocable as pleaded by the
defendants. [816C-D]
    Bhagwati  Prasad v. Shri Chandramaul, [1966] 2 SCR 286;
Gujarat Ginning and Manufacturing Co. Ltd. Ahmedabad v. Moti
Lal Hirabhai Spinning and Manufacturing Co. Ltd.,  Ahmedabad
AIR 1936 P.C. 77; Shankar Gopinath Apte v. Gangabai Harihar-
rao  Patwardhan, [1977] 1 SCR 411; Muhammad Ziaul  Haque  v.
Standard  Vaccum Oil Company, 55 Calcutta Weekly Notes 232;
Dominion  of  India v. Sohan Lal, AIR 1950 EP  40;  M.F.  De
Souza v. Childrens Education, Uplift Society AIR 1959 Bombay
533; Raghbir Saran v. Param Kirti Saran, AIR 1962 All. 444;
Deep Chand v. Kasturi Devi, AIR 1975 Pat. 17;
810
Karan Singh v. Budh Sen, AIR 1938 All. 342; Mohammad Ali  v.
Ahmad  Husain, AIR  1932 Oudh. 264,  Babulal  Choukhani  v.
Caltex (India) Ltd., AIR 1967 Cal. 205; Hasmat Jahan v. Sheo
Dularev, AIR 1942 Oudh. 180; Brun Daban Jena v. Ram  Chandra
Misra, [1963] 29 Cut. L.T. 37; Banamali Dalbehura v. Ratnam-
ani Dei, [1954] 20 Cut. L.T. 319; Jagat Singh and Others  v.
District  Board Amritsar,  AIR 1940 Lahore  18 and  Thakur
Prasad v.J. Thomkinson, AIR 1927 Oudh 206, referred to.



JUDGMENT:
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  638  of
1980.
    From  the  Judgment and Order dated  18.2.1978  of the
Allahabad High Court in First Civil Appeal No. 18 of 1965.
S.N. Kacker, G.C. Mathur and C.P. Lal for the Appellants.
    U.R. Lalit, K.K. Gupta, P.H. Parekh and P.K. Manohar for
the Respondents.
    Soli J Sorabjee, Prithvi Raj, N.B. Sinha and Sanjeev  B.
Sinha for Respondents No. 10 to 16.
The Judgment of the Court was delivered by
    SINGH,  J. This  appeal by special leave is  directed
against the judgment of the High Court of  Allahabad  dated
18th  February, 1978 dismissing the appeal preferred by the
appellant against the judgment and decree of the  Additional
Civil Judge, Lucknow, dismissing the suit instituted by him
for possession of the property in dispute.
    The property in dispute situate at Nawal Kishore  Road,
Lucknow,  consists of buildings and land which have been  in
the occupation of the Bishun Narain School. In 1938, certain
public spirited  persons of Lucknow city formed  a  society
registered  as the Progressive Education Society for  estab-
lishing educational  institution for  imparting  education.
Raja Ram Kumar Bhargava who owned considerable property,  in
the  Lucknow city, was elected Chairman of the Society.  He
permitted  the society to run an English Middle  School  on
rent  in his building. which stood on the site in  dispute,
the school was commonly known as the "Narhi Middle  School".
The school was not recognised by the Education Department of
the Government as it had no endowment and no building of its
own. After protected correspondence with the
811
authorities  of the  Education Department  Raja  Ram  Kumar
Bhargava president of the Society by his letter dated Novem-
ber  26,  1941 (Exhibit C-B-6) informed  the  Inspector  of
Schools Lucknow that he has given away the premises occupied
by  the school free of rent which may be  considered his
permanent contribution to the cause of the school. In pursu-
ance to the declaration made by Raja Ram Kumar Bhargava the
Education Department of the State Government recognised the
institution. The members of the Committee of Management felt
obliged to the Raja for his charitable disposition in donat-
ing the building to the school, accordingly, they unanimous-
ly  passed  a resolution expressing their gratitude  to the
Raja  and  they further resolved to change the name  of the
institution  as the "Bishun Narain Anglo Vernacular  School"
to perpetuate the memory of late Bishun Narain Bhargava, the
father of Raja Ram Kumar Bhargava. This meeting was presided
over by Raja Ram Kumar Bhargava himself as the President  of
the  Society.  Thereafter Raja Ram Kumar  Bhargava  did not
realise rent from the school and he allowed the  school  to
occupy the building and the open land attached to it for the
use  of the  school. With the passage of  time the  school
progressed, it was raised to the status of a High School and
then to the status of an Intermediate College which was also
named  after Bishun Narain Bhargava. Subsequently, the pri-
mary  section  of  the institution was separated  from the
College section and it was given the name as "Bishun  Narain
Basic School" This school has been occupying the property in
dispute,  however,  the school and the college  both were
managed by committee of management of which Raja Ram  Kumar
Bhargava continued to be the President till 1961 and  there-
after  his  wife Rani Lila Bhargava  became  the  President,
which  office she continued to occupy since then.  As  there
was  considerable  increase in the number of  students, the
institution  felt short of accommodation. To meet  the need
for additional accommodation, the management made  permanent
constructions  on the open land attached to the main  build-
ing,  to  provide  three class rooms  and  other  facilities
including bath-room to the students without any objection by
the Raja or any of his family members.
    It appears that Raja Ram Kumar Bhargava had taken con-
siderable amount of money as loan from Central Bank of India
and to secure the loan he executed a mortgage deed, on March
27,  1957  mortgaging a number of properties  including the
property in dispute occupied by the school, in favour of the
Central Bank  of  India. The loan, however,  could  not  be
repaid. Raja Ram Kumar Bhargava offered to sell  the  mort-
gaged  property and  on negotiations, the  Bank  agreed  to
release the property from mortgage to enable Raja Ram
812
Kumar Bhargava to sell the same for raising money to pay off
the  loan.  The Bank released the property under  a  written
agreement  dated  27th June, 1961 and in  pursuance  thereof
Raja  Ram  Kumar Bhargava along with his  three minor sons
executed  a  Sale Deed on 27th June, 1961  transferring the
property in dispute occupied by the school along with  other
property to Ram Sarup Gupta, the plaintiff-appellant. In the
registered  sale deed the property in dispute was  described
as  Portion II of ITD Block in Hazratganj, Lucknow,  bearing
house  No. C-43/111 in the occupation of Bishun Narain High
School. Ram Sarup Gupta the appellant after purchasing the
property  served notice on the school and its managing com-
mittee terminating  their  license and directing  them  to
restore the  possession  of the property to  him  within  a
specified  period.  Since the property was not restored  to
him,  he filed a suit for possession against  Bishun  Narain
Inter College, members of the committee of management of the
college and the Progressive Education Society in the  court
of Civil Judge, Lucknow. Subsequently under the order of the
trial  court the members of the committee of the  management
of  the Bishun Narain Basic School were also  impleaded  as
defendants 11 to 17. The defendants inter alia pleaded that
the  Raja had donated the property in dispute to the  school
permanently and the school had made permanent  constructions
by incurring expenses for that reason license was  irrevoca-
ble.
    On the pleading of the parties the trial court framed  8
issues and the parties produced evidence in support of their
case. The trial court recorded findings that the property in
dispute belonged to the joint family of which Raja Ram Kumar
Bhargava  as Karta. Raja Ram Kumar Bhargava had donated the
property  in dispute to the school, but no title  passed  to
the school or to any of the defendants as the property being
immovable could not be transferred except under a registered
deed. In the absence of transfer deed Raja Ram Kumar Bharga-
va continued to be owner and he could transfer title in the
property  to  the plaintiff. The defendants' plea  that the
civil  court  had no jurisdiction to entertain the  suit  or
pass  decree  for possession was negatived on  the  findings
that  under  the U.P. Act III of 1947, no  allotment  could
validly be issued in favour of the school as there  was  no
vacancy or likelihood of vacancy. The trial court  recorded
findings  that Raja Ram Kumar Bhargava had given  away the
property to the school as his permanent contribution but  in
the absence of registered deed the transaction amounted to a
license only  and since the defendants had  made  permanent
constructions  on  the premises in suit,  the license was
irrevocable under section 60(b) of the Indian Easements Act,
1882 (hereinafter referred to as the Act). The trial court
813
further held  that Raja Ram Kumar Bhargava himself  had  no
power in law to revoke the license, consequently the  plain-
tiff being transferee from him could not acquire any  better
right, therefore he was not entitled to revoke the  license
or  to obtain possession of the property. On these  findings
the  trial court dismissed the suit. The appellant took the
matter in appeal before the High Court, the appeal came  up
for  hearing before a Division Bench consisting of P.N. Jha
and K.S. Verma. JJ. There was difference of opinion  between
two  learned Judges. D.N. Jha, J. affirmed the findings  of
the trial court and opined that since license granted to the
school was irrevocable. the appellant was not entitled  to
any  relief. K.S. Verma, J. took a contrary view,  according
to  him the defendants had failed to raise  requisite plea
that the license granted to them was irrevocable as  contem-
plated by  Section 60 (b) of the Act and they had  further
failed to produce any positive evidence to prove the  terms
and  conditions of the license showing that the license was
irrevocable. The learned Judge held that the defendants plea
that  they had made permanent constructions on the  land  in
pursuance  of the license incurring expenses, could  not  be
considered as the defendants had failed to plead the  neces-
sary facts in their written statement, the evidence produced
by  them  could not be considered. On these  findings the
learned judge proposed to set aside the trial court's  order
and decree the plaintiff's suit. Since there was  difference
of  opinion  the matter was referred to a third Judge. The
appeal was  then heard by T.S. Misra, J. he  discussed the
questions  in respect of which the two judges had  disagreed
and by a detailed order he concurred with the view expressed
by  D.N.  Jha, J. as a result of which the  trial  court's
judgment was upheld and the appellant's suit was  dismissed.
The  appellant has preferred this appeal by  special  leave
under Article 136 of the Constitution.
    Sh. S.N.  Kacker, learned counsel for  the  appellant
contended  that the trial court as well as the High  Court
both erred in holding that the license was irrevocable under
section 60(b) of the Indian Easement Act. He urged that the
defendants  had failed to raise necessary pleadings  on the
question,  no issue was framed and no evidence was  produced
by them. In the absence of requisite pleadings and issues it
was  not open to the trial court and the High Court to make
out  a new  case for the defendants,  holding the  license
irrevocable.  He  urged that the defendants  had  failed  to
produce any evidence to prove the terms and  conditions  of
the  license. In order to hold the license  irrevocable,  it
was necessary to plead and further to prove that the defend-
ants  had made construction, "acting upon the terms  of the
license".  Shri Kackar further urged that  Raja  Ram  Kumar
Bhargava being Karta of
814
joint  family, could not alienate the, property permanently
to  the detriment of the minor co-sharers. Sri. U.R.  Lalit,
appearing  on behalf of the defendant-respondents  supported
the findings recorded by the trial court and the High  Court
and  urged  that both the courts have recorded findings  of
facts on appreciation of evidence on record that the license
granted by Raja Ram Kumar Bhargava was irrevocable and that
acting upon the license the school had made construction for
the  purposes  of  running the school and  the license was
irrevocable.  He  took us through the record  to  show that
necessary  pleadings had been raised by the  defendants and
there was sufficient evidence in support of the pleadings.
    The question which falls for consideration is  whether
the  respondents in their written statement have raised the
necessary  pleading  that  the license was  irrevocable  as
contemplated  by  Section 60(b) of the Act and, if  so,  is
there  any  evidence on record to support that plea.  It  is
well  settled that in the absence of pleading, evidence,  if
any,  produced by the parties cannot be considered.  It  is
also  equally settled that no party should be  permitted  to
travel beyond its pleading and that all necessary and  mate-
rial facts should be pleaded by the party in support of the
case set up by it. The object and purpose of pleading is  to
enable the adversary party to know the case it has to  meet.
In  order  to have a fair trial it is  imperative  that the
party  should  state the essential material  facts  so that
other  party  may not be taken by  surprise.  The  pleadings
however should receive a liberal construction, no  pedantic
approach should be adopted to defeat justice on hair  split-
ting  technicalities. Sometimes, pleadings are expressed  in
words which may not expressly make out a case in  accordance
with strict interpretation of law, in such a case it is the
duty  of the Court to ascertain the substance of the  plead-
ings to determine the question. It is not desirable to place
undue emphasis on form, instead the substance of the  plead-
ings should be considered. Whenever the question about lack
of  pleading  is raised the enquiry should not be  so much
about  the  form of the pleadings, instead; the court must
find out whether in substance the parties knew the case and
the  issues upon which they went to trial. Once it is  found
that  in spite of deficiency in the pleadings  parties knew
the  case  and they proceeded to trial on  those  issues  by
producing evidence, in that event it would not be open to  a
party  to  raise  the question of absence  of  pleadings  in
appeal. In Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR
286  a Constitution Bench of this  Court  considering this
question observed:
     "If a plea is not specifically made and yet it
     is covered by an issue by implication, and the
     parties knew that the said plea
     815
     was involved in the trial, then the mere fact
     that  the plea was not expressly taken in the
     pleadings would not necessarily disentitle  a
     party from relying upon if it is satisfactori-
     ly  proved  by evidence. The general  rule  no
     doubt is that the relief should be founded  on
     pleadings made by the parties. But where the
     substantial  matters relating to the title  of
     both  parties to the suit are touched,  though
     indirectly  or even obscurely in the  issues,
     and evidence has been led about them, then the
     argument that  a particular  matter  was not
     expressly taken in the pleadings  would  be
     purely formal and technical and cannot succeed
     in every case. What the Court has to  consider
     in dealing with such an objection is: did the
     parties  know that the matter in question was
     involved in  the trial, and  did  they lead
     evidence about  it? If it  appears  that the
     parties  did not know that the matter  was  in
     issue at the trial and one of them has had  no
     opportunity to lead evidence in respect of it,
     that undoubtedly would be a different  matter.
     To  allow one party to reply upon a matter  in
     respect of which the other party did not lead
     evidence and has had no opportunity  to lead
     evidence, would introduce  considerations  of
     prejudice, and in doing justice to one  party,
     the Court cannot do injustice to another."
    Before we examine the pleas raised by the defendants  in
their written statement it is necessary to keep in mind that
the  plaintiff himself stated in paragraph 4 of the  plaint
that  the property in dispute has been in occupation of the
school as licensee under the permission of Raja  Ram  Kumar
Bhargava erstwhile owner of the property. Defendant Nos.  11
to 17 in paragraph 10 to 16 of their written statement while
dealing with the question of license expressly stated that
the school had made pucca constructions and had been  making
various substantial additions and alterations in the  build-
ing without any objection. Raja Ram Kumar Bhargava had given
away  the premises in dispute permanently to the school and
they have been in occupation of the premises for the last 20
years and during that period they have been making  substan-
tial  additions and alterations in the building  including
replastering, re-flooring etc. by incurring heavy  expenses.
In paragraph 18 of their written statement they pleaded that
the license was coupled with a grant and in any case it was
a permanent and irrevocable license in favour of the  school
and  the  same could not be revoked by the  plaintiff. The
pleadings so raised make it apparently
816
clear  that the defendants had raised a specific  plea that
the  license was coupled with grant, it was a permanent and
irrevocable  license  and in pursuance of  the licence the
licensee had carried out work of permanent character  incur-
ring  expenses for the advancement of the purpose for  which
the  license had been granted. In fact, issue numbers  4,  5
and  6 framed by the trial court relate  to  the  question
whether license was irrevocable. The issues so framed in-
volved the question of irrevocability of the license  under
both  the clauses (a) and (b) of the Section 60 of the Act.
The plaintiff went to trial knowing fully well that  defend-
ants  claim  was that the license was  irrevocable,  on the
ground that they had made permanent constructions  and in-
curred expenses in pursuance of the license granted for the
purpose of  school. The plaintiff knew the case he  had  to
meet, and for that purpose he produced Raja Ram Kumar  Bhar-
gava in evidence in support his plea that the license was  a
simple license and it was not irrevocable as pleaded by the
defendants.  This  question  has been  considered  in  great
detail by T.S. Misra, J. and we are in agreement  with the
view taken by him.
    Mr. Kacker, then contended that mere execution of work
of  a  permanent  character and incurring  expenses  by the
licensee  is not sufficient to make the license irrevocable
instead licensee must plead and prove by positive  evidence
that  the licensee "acting upon the license", executed work
of a permanent character and incurred expenses in its execu-
tion.The defendants tailed to raise any such plea before the
trial  court  that they had executed the work  of  permanent
character  and incurred expenses "acting upon  the  license"
and  they further failed to produce any evidence in  support
thereof. He urged that by making constructions and incurring
expenses  a licensee could not make the license irrevocable
as the law requires that constructions, if any, and expenses
incurred  thereon  must be shown to have been  made  "acting
upon  the license". He placed reliance on the Privy  Council
decision  in  Gujarat  Ginning and  Manufacturing  Co. Ltd.
Ahmedabad  v. Moti Lal Hirabhai Spinning  and  Manufacturing
Co. Ltd. Ahmedabad, AIR 1936 P.C. 77 and also on a  decision
of this Court in Shankar Gopinath Apte v. Gangabai  Harihar-
rao Patwardhan, [1977] 1 SCR 411. In addition to these cases
he  referred to a number of High Court decisions in  support
of his submissions that benefit of Section 60 (b) of the Act
could  not  be granted to the respondent  school.  Similar
grievance  had been raised by the appellant before the High
Court  on the ground on absence of requisite pleadings with
regard to  the respondents' claim for the  license  being
irrevocable under section 60 (b) of the Act. The majority of
the  Judges of the High Court repelled the appellants' sub-
mission on a detailed scrutiny of the plead-
817
ings.  We have already referred to the pleadings  raised  by
the defendants which contain necessary facts to sustain the
pleading  of the license being irrevocable under section  60
(b)  of the Act. It is well settled that the pleadings need
not reproduce the exact words or expressions as contained in
the  statute,  nor  the question of law is  required  to  be
pleaded. The substance of the respondents' pleadings clearly
informed  that their case was that they had  made  construc-
tions on the land acting upon the licence which substantial-
ly met the requirement of law. Before we discuss the author-
ities cited by the appellants' counsel we consider it neces-
sary to briefly refer to the provisions of the Act  regulat-
ing  the grant, revocation of license and other allied mat-
ters and also the evidence available on record.
    License as defined by Section 52 of the Act means  grant
of  permission, by a person to the other, 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. Such right does not amount to an  ease-
ment  or  any interest in the property. The rights  so con-
ferred is license. The grant of license may be express  or
implied which can be inferred from the conduct of the  gran-
tor.  Section 60 provides that 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  permanent
character and incurred expenses in the execution. Revocation
of license may be express or implied. Section 62  enumerates
circumstances  on  the existence of which  the license  is
deemed to  be revoked. One of such  conditions contemplate
that where license is granted for a specific purpose and the
purpose is attained, or abandoned, or if it becomes  imprac-
ticable, the license shall be deemed to be revoked.  Section
63  and 64 deal with license's right on revocation  of the
license to have a reasonable time to leave the property and
remove the goods which he may have placed on  the  property
and the licensee is further entitled to compensation if the
license was granted for consideration and the license was
terminated  without any fault of his own.  These  provisions
indicate  that a license is revocable at the  will  of the
grantor and  the revocation may be  expressed or  implied.
Section 60 enumerates the conditions under which a  license
is irrevocable. Firstly, the license is irrevocable if it is
coupled with transfer of property and such right is enforced
and  secondly, if the licensee acting upon the license exe-
cutes  work  of permanent character and incurs expenses  in
execution. Section 60 is not exhaustive. There may be a case
where  the grantor of the license may enter  into  agreement
with  the  licensee  making the license  irrevocable, even
though, none of the two clauses
818
as specified under section 60 are fulfilled. Similarly, even
if the two clauses of section 60 are fulfilled to render the
license irrevocable  yet it may not be so  if the  parties
agree  to the contrary. In Muhammad Ziaul Hague v.  Standard
Vacuum Oil Company, 55 Calcutta Weekly Notes 232 the Calcut-
ta  High  Court held that where a license  is prima  facie
irrevocable  either  because it is coupled with a  grant  or
interest or because the licensee erected the work of  perma-
nent  nature  there is nothing to prevent the  parties from
agreeing expressly or by necessary implication that  licence
nevertheless shall be revocable. On the same reasoning there
is nothing to prevent the parties agreeing expressly or im-
pliedly that  the license which may not  prima facie fall
within either of the two categories of license (as  contem-
plated by section 60) should nevertheless  be irrevocable.
The  same  view was taken by Das, J. (as he  then  was)  in
Dominion of India v. Sohan Lal, AIR 1950 EP 40. Bombay High
Court  has  also  taken the same view in H.F.  De  Souza  v.
Childrens Education Uplift Society, AIR 1959 Bombay 533. The
parties may  agree expressly or impliedly  that  a  license
which is prima facie revocable not failing within either  of
the two categories of license as contemplated by Section  60
of  the Act shall be irrevocable. Such agreement may  be  in
writing or  otherwise and its terms or conditions  may  be
express or implied. A license may be oral also in that case,
terms, conditions  and the nature of the  license,  can  be
gathered from. the purpose for which the license is  granted
coupled with  the conduct of the parties  and the  circum-
stances which may have let to the grant of the license.
    In their pleadings the defendants had invoked the pro-
tection of both the clauses of Section 60 of the Act, first-
ly,  they  pleaded  that the license was  coupled  with the
transfer of property inasmuch as the school had been realis-
ing  rent  from third parties who were permitted  to  use  a
portion of the land. Secondly, they pleaded that the  licen-
see, namely, the school had executed permanent constructions
and  incurred  expenses in execution thereof acting  on the
license.  The  trial court as well as the  High Court both
rejected the respondents' claim of license being irrevocable
under section 60(a) of the Act. But they upheld the respond-
ents  plea of license being irrevocable under clause (b)  of
Section 60 of the Act. It is true that the pleadings  raised
in the written statement of defendants did not expressly use
the  expression that the school had executed work of  perma-
nent  character "acting upon the license". But reading the
entire written statement one cannot escape  the  conclusion
that the defendants had raised the plea that Raja Ram  Kumar
Bhargava the grantor of the license had granted license for
running the school in the building and for using  the open
land for
819
the  purpose of school and in pursuance of the license,  so
granted, the school had executed work of permanent character
and  incurred  expenses in making the same.  The  defendants
further pleaded  that no objection had been raised  by the
grantor of the license or by anyone else against the  school
in  making the constructions. Repeated assertions have been
made in their written statement that Raja Ram Kumar  Bharga-
va,  had granted a permanent license which was irrevocable.
Substance  of  the pleading was clear  that  defendants had
raised a specific plea that the school had in pursuance  of
the  license  executed work of permanent character  and in-
curred expenses  in  execution and that  no  objection was
raised by the licensor therefore the license was  irrevoca-
ble.  The  license had been granted to the  school  for the
purpose of  running school and imparting education  to the
students, the license was not merely in respect of  building
alone  but it was also in respect of open land attached  to
the  building. Additional  accommodation  was required  to
provide class rooms for the students which was an  integral
part  of the purpose for which the license had been  granted
and the school carried out works on the open land which was
appurtenant to the main building, with the knowledge of the
licensor  as has been found by the trial court and the High
Court. In view of the licensor's donation of the property to
the  school, and his subsequent conduct, the licensee  could
reasonably entertain a belief that the licensor had  permit-
ted the construction on the land, and in pursuance  thereof,
the  licensee made constructions and incurred expenses. The
result is that the respondents "acting upon the license" had
executed  works by incurring expenses which  rendered the
license irrevocable. As regard evidence we have perused the
statement of Ganga Prasad Dhayani, DW 1, Shanker Dutt, DW 2,
and Bhola, DW 3. Their testimony fully established that the
school had constructed three class rooms, latrin and urinals
and incurred expenses. Raja Ram Kumar Bhargava in his testi-
mony claimed that the aforesaid constructions had been made
by a trust constituted by his family members, but no account
books  were filed in support of the statement, although  it
was admitted that the trust maintained accounts on the other
hand  vouchers were produced on behalf of  the  defendants
showing that  the  management had spent  money for  making
constructions. Raja Ram Kumar Bhargava who was examined as a
witness on behalf of the plaintiff admitted in his testimony
that  he continued to be the president of the  school  since
1938 to 1961 and thereafter his wife has continued to be the
president, it is therefore difficult to believe that he had
no  knowledge of the constructions. If the license  did not
permit the school to execute any  permanent  constructions,
Raja  Ram Kumar Bhargava would have certainly raised  objec-
tions. His conduct of acquiescence to the raising of
820
constructions, is eloquent enough to show that the  license
was  irrevocable. No doubt Raja Ram Kumar made attempts  to
support the plaintiff's case by saying that he had not given
the  property to the school permanently but the trial  court
and the High Court both have discarded his testimony and  we
find no good reason to take a different view.
    In Gujrat Ginning and Manufacturing Co. Ltd.  Ahmedabad
v.  Moti  Lal Hirabhai Spinning and Manufacturing  Co. Ltd.
Ahmedabad,  protection of Section 60(b) of the Act  was in-
voked by a party who had made constructions on his own land
and  not  on the land of the licensor and  in  that  factual
backdrop the Privy Council held that the expression  "acting
upon  the license" must mean acting upon a fight granted  to
do  upon  the land of the grantor something which  would  be
unlawful  in  the  absence of such right.  A  man  does not
"acting upon a license" executes works and  incurs  expense
upon  his own property as that he can do without  any  one's
license. These observations do not support the appellant  on
the  other  hand they show that if a man  executes  work  of
permanent  character and incurs expense on the property  of
other  person  under a license he may have done so  "acting
upon  the  license". In Shanker Gopinath Apte  v.  Gangabhai
Hariharrao  Patwardhan the  plaintiff had  raised  plea  of
tenancy failing which he claimed to be in possession of the
land,  in part performance of an agreement for sale. On the
rejection of both the pleas the plaintiff-appellant  therein
raised a further plea that he was protected  under  section
60(b)  of the Indian Easements Act as he had executed  works
of permanent character on the land incurring heavy expenses.
This Court rejected the submissions on the ground of absence
of  pleadings, issues and evidence.  While  rejecting the
appellant's submissions the Court observed that even  assum-
ing  that  the appellant had executed work  of a  permanent
character on the land it could not be said that he had done
so "acting upon the license" as required by Section 60(b) of
the  Easements Act. The Court observed that  the  appellant
improved the land by executing work c-f a permanent  charac-
ter,  he did so, in the belief that being a tenant he  would
become statutory  purchaser of the land or  that  the oral
agreement  of  sale will one fine day  be  implemented. The
execution  of the work was done either in the capacity as  a
tenant or as a prospective purchaser but not as a  licensee.
The decision has no application to the facts of the  present
case  as  admittedly the school was a licensee and  in that
capacity  it  executed works of a  permanent  character,  by
incurring  expenses and this plea was raised at the  initial
stage before the trial court.
821
    Reference was made to a number of decisions of the High
Court in support of the proposition that a license is irrev-
ocable under section 60(b) of the Act only if three  condi-
tions are fulfilled, namely, (i) the licensee executed work
of  a  permanent character, (ii) he did so acting  upon the
license,  and  (iii) he incurred expenses in doing  so. The
onus of proving these facts lie upon the licensee and in the
absence of any evidence on these questions the license could
not be irrevocable under section 60(b) of the Act. Decisions
relied are Raghbir Saran v. Param Kirti Saran, AIR 1962 All.
444;  Deep  Chand v. Kasturi Devi, AIR 1975 Pat.  17,  Karan
Singh v. Budh Sen, AIR 1938 All. 342; Mohammad Ali v.  Ahmad
Husain, AIR  1932 Oudh. 264; Babulal  Choukhani  v.  Caltex
(India) Ltd., AIR  1967 Cal. 205; Hashmat  Jahan  v. Sheo
Dularey, AIR 1942 Oudh. 180; Brun Daban Jena v. Ram  Chandra
Misra, [1963] 29 Cut. L.T. 37; Banamali Dalbehura v. Ratnam-
ani Dei, [1954] 20 Cut. LT 319. We do not consider it neces-
sary to discuss these authorities in detail as in our  opin-
ion all the three conditions as required by Section 60(b) of
the  Act  have been made out to show that  the license was
irrevocable.  The respondents placed reliance on  the  deci-
sions  of  Lahore High Court had Oudh High  Court  in  Jagat
Singh and others v. District Board Amritsar, AIR 1940 Lahore
18 and Thakur Prasad v.J. Thomkinson, AIR 1927 Oudh 206.  In
these  decisions  the Court held that where  a license was
granted to a school in respect of a land, and in  pursuance
thereof the licensee constructed work of permanent character
on the land, the license was irrevocable under section 60(b)
of  the Indian Easements Act. In our view the Court  rightly
held  that where license is granted for the purpose of run-
ning  school without reserving any right to revoke  the li-
cense and if the licensee erected works of permanent nature,
the  grantor of license is not entitled to recover land,  as
the  execution of work was for the purpose of school and  it
falls within the expression "acting upon the license".
    Learned  counsel  for the appellant urged  that  in the
absence of any document containing the terms and  conditions
of the license, the courts below committed error in  holding
that license was irrevocable. Since no written document was
executed by the parties containing the terms and  conditions
of  the license, the terms and conditions could be  inferred
from  the  attending circumstances and the  conduct  of the
parties.  Raja Ram Kumar Bhargava was the President  of the
Society which was running the Narhi Middle School,  but  it
was not recognised by the Education Department of the  State
of U.P. The correspondence which is on record shows that the
Education  Department  insisted that there  should  be some
endowment and school should own building
822
and  land before it could be granted recognition.  Raja Ram
Kumar Bhargava gave away the disputed property donating the
building  and  the land in favour of school  by his  letter
dated November 26, 1941 (Ex C-B-6) addressed to the  Inspec-
tor  of Schools,  Lucknow. In that letter  Raja  Ram  Kumar
stated "I have given my building free of rent to the  Narhi
Middle School. I now write to inform you that the  premises
at  present  in the occupation of the school  free  of rent
which  may  be considered my permanent contribution  to the
cause  of  the school." On the receipt of  that letter the
Education Department granted recognition to the school. The
proceedings of the Managing Committee of the school held  on
January 6,  1942  (Ext. B-16) show that a  meeting  of the
Managing  Committee was held on that day president  over  by
Raja  Ram  Kumar Bhargava and in that meeting  the  Managing
Committee  expressed  its  deep sense  of  appreciation and
grateful thanks to Raja Ram Kumar Bhargava for donating the
building to the school for procuring the recognition to the
school from the U.P. Government, and it further resolved  to
name the school as the Bishun Narain Anglo Vernacular School
to  perpetuate the memory of Shri  Bishun  Narain  Bhargava
father of Raja Ram Kumar Bhargava. These documents  clearly
indicate that Raja Ram Kumar Bhargava had permanently donat-
ed the property in dispute to the school and in lieu thereof
the institution was named after his father to perpetuate his
memory. The purpose of the grant was to enable the school to
carry  on  its activity of imparting education to  the stu-
dents. The  school progressed and  it required  additional
building, Management of the school which was headed by Raja
Ram  Kumar  himself,  constructed  additional  buildings  to
provide for class rooms and other amenities to the students.
Raja  Ram Kumar Bhargava himself never raised any  objection
against the school making additional constructions  on the
disputed  land. These facts and circumstances point out the
terms  and  conditions of the license, that the school was
permitted  to occupy and enjoy the land permanently for the
purpose of education. In this background, it would be rea-
sonable to infer, an implied condition that the license was
irrevocable  and the school was permitted to occupy and use
the premises so long as it continued the purpose of  impart-
ing education to the students.
    The appellant's submission that Raja Ram Kumar  Bhargava
being  Karta  of joint family could not create a  permanent
license in favour of the school without the consent of other
co-sharers, tO the detriment of his minor sons, is devoid of
any  merit. No co-sharer or member of the joint family ever
raised any objection to the donation of the property to the
school by Raja Ram Kumar Bhargava nor they
823
raised any  objection at any stage of construction  of the
additional buildings by the school. There is no evidence  on
record to show that his three minor sons, on whose behalf he
executed  sale deed on 27th June 1961 in appellant's  favour
were born prior to 1941. Moreover title in the property was
not  transferred to the school instead a  permanent  license
was granted, in which every member of the joint family, must
have  been interested, as the school perpetuated the  memory
of the common ancestor Shri Bishun Narain Bhargava father of
Raja Ram Kumar Bhargava. The question of any legal necessity
did  not arise and the grant of permanent license in  favour
of  the school' could not be rendered void  merely  because
Raja  Ram Kumar Bhargava was Karta of the joint family.  No
co-sharer  has challenged the validity of the license,  on
that  ground. On the other hand they have acquiesced to it.
There is thus no merit in the appellant's contention.
    In view of the above discussion we are of the  opinion
that the pleadings, evidence and the circumstances available
on record, have fully established that Raja Ram Kumar  Bhar-
gava  had  granted license to the school in respect  of the
building  and  the land attached to it for  the purpose  of
imparting  education and the school in furtherance  of that
purpose constructed  additional buildings  and it  further
incurred expenses in carrying out modification and extensive
repairs in the existing buildings during the  period, Raja
Ram  Kumar  Bhargava continued to be the  President  of the
Managing Committee of the school. He never raised any objec-
tion  to  it  and there is nothing on record  to  show that
licensor  had  retained right to revoke the  license.  If  a
person allows another to build on his land in the  further-
ance  of the purpose for which he had granted license, sub-
ject  to  any agreement to the contrary cannot turn  round,
later on, to revoke the license. This principle is  codified
is  Section 60(b) of the Act. Moreover, conduct of the par-
ties has been such that equity will presume the existence of
a condition of the license by plain implication to show that
license was perpetual and irrevocable. That being so, Raja
Ram Kumar Bhargava could not revoke the license or evict the
school and the appellant being transferee from him could not
and  did not acquire any better right. The appellant  there-
fore  has  no right to revoke the license or  to  evict the
school, so long the school continues to carry on the purpose
for  which the license was granted. The trial court and the
High Court have therefore rightly dismissed the suit.
    Before  concluding, we would like to observe  that the
appellant  purchased the property in dispute from  Raja Ram
Kumar  Bhargava for valuable consideration and he  continues
to be the owner of the
824
property,  his desire to get the possession of the  property
is  quite  natural but at the same time we cannot  shut our
eyes to the hard reality that Raja Ram Kumar Bhargava  erst-
while  owner  of  the property had  granted  an irrevocable
license in favour of the school. On 27th June 1961 when Raja
Ram  Kumar  Bhargava executed the sale deed  in appellant's
favour the  property in dispute was in possession  of the
school under an irrevocable license. The  appellant  should
have  known that the institution was occupying the  property
and  it was rendering public service in imparting  education
to the students and it would be difficult to get possession,
in spite of that, the appellant purchased the property. The
school has been occupying the property since 1939 and it has
made  permanent constructions without any  demur  from any
quarter,  in this situation it is not possible to grant any
relief to the appellant. To evict the school may result into
closure of  the  institution and that would  certainly  be
against public interest. Having regard to these  facts and
circumstances, we gave opportunity to the parties to  evolve
settlement  to adjust equities without disturbing the  cause
of  education. We regret to say that the parties  could not
settle the matter, we have therefore decided the appeal  on
merits.
    In view of the above discussion we do not find any merit
in  the appeal it is accordingly dismissed. In the  circum-
stances of the case parties shall bear their own costs.
N.P.V. Appeal dis-
missed.
825



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