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
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
