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Hafiz Ali Khan Vs. Mohd. Ishaq - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 282 of 1964
Judge
Reported inAIR1977All469
ActsEasements Act, 1882 - Sections 60
AppellantHafiz Ali Khan
RespondentMohd. Ishaq
Appellant AdvocateI.A. Abbas, Adv.
Respondent AdvocateS.C. Mathur, Adv.
DispositionAppeal dismissed
Excerpt:
civil- licence - section 60 of easements act,1882 - whether one co sharer can revoke licence - held, the consent of all co sharers are needed for revocation of licence. - - 2 and 3 had granted permanent lease to him, that mata prasad and mohan lal had consented to his occupation of the land, and that he had purchased the share of another cosharer as well......exclusive possession of the said land, that mohd. ahsan was never in exclusive possession of the land in suit, that the contesting defendants nos. 1, 4 and 5 were not the lessees but licencees of the said land, that the constructions raised by the said defendants on the said land were of permanent nature, and that the licence was, therefore, irrevocable. the trial court while repelling the contention of the defendants nos. 1, 4 and 5 that they were lessees held that the said defendants were licencees and that the said licences had been granted by all the co-sharers. this finding has not been upset by the appellate court below. further, it has been found as a fact, as is also borne out from the evidence, that there were a number of co-sharers in the said land, apart from those persons.....
Judgment:

T.S. Misra, J.

1. This appeal by the plaintiff arises out of his suit for ejectment of defendants Nos. 1, 4 and 5 from the land in dispute. The facts leading to this appeal may be stated, in brief, as follows:-- The plaintiff claimed to have obtained a permanent lease in respect of the land in question from defendants Nos. 2 and 3, who were said to be the owners thereof, and to have obtained consent for the same from Mata Prasad and Mohan Lal, the other co-owners. He also maintained to have purchased the share of Mohd. Ahsan alias Gullar, the other co-sharer. On a portion of that land the defendants Nos. 1, 4 and 5 have raised certain constructions and carry on business therein. The plaintiff alleged that at the time of grant of permanent lease the said defendants Nos. 1, 4 and 5 did not pay Baithki charges to defendants Nos. 2 and 3, hence the plaintiff was entitled to realise that charge from them on the basis of permanent lease aforesaid and also on the ground that he was a co-owner. The plaintiff also asked defendants Nos. 1, 4 and 5 to quit, but the said defendants did not accede to the demand. Consequently, the plaintiff filed the suit which has given rise to this appeal.

2. The suit was resisted by defendants Nos. 1, 4 and 5 on a variety of grounds. They alleged that permanent lease created in favour of plaintiff was invalid, that the suit was not maintainable inasmuch as the other co-sharers were not arrayed as parties, that they were lessees of the said land and as the lease had not been determined in accordance with law, they were not liable to be ejected and at any rate they could not be asked to quit inasmuch as they have raised permanent constructions over the said land. The trial court on a consideration of the evidence adduced by the parties dismissed the suit. On appeal by the plaintiff before the learned District Judge, the findings recorded by the trial Court were affirmed and the appeal was dismissed.

3. He has now come up to this court in second appeal.

4. The concurrent findings of fact so far as the present appeal is concerned are that Mohd. Yaqub Khan and Kaniz Fatma did not have any exclusive possession of the said land, that Mohd. Ahsan was never in exclusive possession of the land in suit, that the contesting defendants Nos. 1, 4 and 5 were not the lessees but licencees of the said land, that the constructions raised by the said defendants on the said land were of permanent nature, and that the licence was, therefore, irrevocable. The trial court while repelling the contention of the defendants Nos. 1, 4 and 5 that they were lessees held that the said defendants were licencees and that the said licences had been granted by all the co-sharers. This finding has not been upset by the appellate court below. Further, it has been found as a fact, as is also borne out from the evidence, that there were a number of co-sharers in the said land, apart from those persons who were said to be the owners by the plaintiff. It has also come in evidence that Mardan Khan used to realise Baithki charges from defendants Nos. 1, 4 and 5 on behalf of Yaqub Khan who in his turn used to distribute the realisation amongst the cosharers. On these findings the short question which arises for consideration in this appeal is whether a licence granted by all the cosharers of the land can be revoked by one cosharer and in consequence whether one cosharer on revocation of the licence by him, seek eviction of the licensee from the land.

5. Section 53 of the Indian Easements Act provides that a licence may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the licence. This court has expressed a view in Manbahal Rai v. Ram Ghulam Pandey : AIR1927All633 that a cosharer in an Abadi site cannot grant a licence to a third person to build on the site without the consent of the other cosharers. In the instant case the finding recorded by the trial court is that the licence was granted by all the co-sharers. That finding has not been upset by the appellate court below. There is no reason to disregard that finding inasmuch as even the plaintiff's witness Mardan Khan had said that Baithki charges realised by him for and on behalf of Yaqub Khan were ultimately distributed among all the co-sharers of Yakub Khan, It was not pleaded by the plaintiff in his plaint that the licence was granted by defendants Nos. 2 and 3 alone. On the contrary, the evidence and the surrounding circumstances show that the licence was granted by all the cosharers. On this premises, we have to see as to whether the licence could be revoked by one cosharer and the possession could be sought for by ejectment of the licensees at the instance of one cosharer. Section 60 of the Indian Easements Act lays down that a licence may be revoked by the grantor. In the case in hand all the cosharers were the grantors of the licence. Therefore, the licence could be revoked by all of them and not by one of them alone. However, one of the cosharers may revoke the licence if he acts for himself and for all others. Either the grantors can act in concert or can authorise one of them or a few of them to act for all. The plaintiff had not asserted in his plaint that he had revoked the licence acting for himself and for others. In fact, he had pleaded that defendants Nos. 2 and 3 had granted permanent lease to him, that Mata Prasad and Mohan Lal had consented to his occupation of the land, and that he had purchased the share of another cosharer as well. But, it was found in the ultimate analysis that there were a few other persons who had right, title and interest in the property. The plaintiff did not purport to act on behalf of those other persons. Thus all the grantors of the licence had not authorised the plaintiff to revoke the licence. True it is that the plaintiff, who is a cosharer, has revoked the licence, but that by itself could not be sufficient to bring such a licence to an end which had been granted by all the co-sharers and not by those persons alone through whom the plaintiff derived his interest in the property, The licence having not been revoked in accordance with law by all the co-sharers, the plaintiff could not maintain his suit for eviction of defendants Nos. 1, 4 and 5. The courts below were, therefore, correct in concluding that the suit was liable to be dismissed, and were justified in dismissing the suit.

6. In the result, the appeal fails and is dismissed with costs.


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