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Manbahal Rai and ors. Vs. Ram Ghulam Pandey - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All633; 103Ind.Cas.43
AppellantManbahal Rai and ors.
RespondentRam Ghulam Pandey
Excerpt:
- - that court has found as a fact, that the plaintiffs were never in possession of the site in dispute and that the defendant has been in possession of the land in question on the basis of the license given to him by shujaat ahmad khan, by means of a deed dated the 29th of august 1921. 6. in my judgment the decree of the lower appellate court is perfectly correct and ought to be affirmed. 7. apart from the reasons given above, the plaintiff's suit must fail on another ground......for possession of that plot of land. the defendant succeeded in securing a license to build a house, on payment of nazrana from one shujaat ahmad khan, who owns a one-anna share in the village, on the 29th august 1921. about three weeks after that date, viz., on the 23rd of september 1921, the plaintiffs-appellants were given a license to build by other cosharers of the village who owned the remaining 15-annas share in the village. after being armed with the license the plaintiffs wanted to build a house over the site in dispute, but they were unable to do so, as the defendant had already secured possession of the land and commenced to build a house. this led to the institution of the present suit by plaintiffs-appellants for possession of the site by demolition of the walls.....
Judgment:

Iqbal Ahmad, J.

1. Much as I regret that the defendant, who has absolutely no title to remain in exclusive possession of the plot in dispute, succeeds in the present litigation. I cannot but affirm the decision of the lower appellate Court in this case.

2. The dispute between the parties centers round a plot of abadi land which was once the site of the house of one Khudi, who was a ryot in the village. On Khudi's death there was a race between the plaintiffs-appellants and the defendant-respondent for possession of that plot of land. The defendant succeeded in securing a license to build a house, on payment of nazrana from one Shujaat Ahmad Khan, who owns a one-anna share in the village, on the 29th August 1921. About three weeks after that date, viz., on the 23rd of September 1921, the plaintiffs-appellants were given a license to build by other cosharers of the village who owned the remaining 15-annas share in the village. After being armed with the license the plaintiffs wanted to build a house over the site in dispute, but they were unable to do so, as the defendant had already secured possession of the land and commenced to build a house. This led to the institution of the present suit by plaintiffs-appellants for possession of the site by demolition of the walls newly built by the defendant, and for an injunction restraining him from making any interference with the plaintiffs' right to build a house over the site in dispute.

3. The defence to the suit was that the plaintiffs were not entitled to eject the defendant who himself was building under a license granted to him by one of the co-sharers of the village.

4. The trial Court held that the plaintiffs, being licensees from the sharers of 15-annas, were entitled to a decree in terms of the reliefs prayed for in the plaint, and accordingly decreed the suit.

5. On appeal by the defendant, the lower appellate Court has reversed the decree of the trial Court and has dismissed the plaintiffs' suit. That Court has found as a fact, that the plaintiffs were never in possession of the site in dispute and that

the defendant has been in possession of the land in question on the basis of the license given to him by Shujaat Ahmad Khan, by means of a deed dated the 29th of August 1921.

6. In my judgment the decree of the lower appellate Court is perfectly correct and ought to be affirmed. It is clear (Section 52, Indian, Easements Act) that a license passes no interest in immovable property to the licensee, but only makes an action lawful which, without it, would have been unlawful. That being so, by the license granted to the plaintiffs-appellants they acquired no interest in the site, the subject-matter of the dispute. They were authorized by the license simply to build over the site in dispute. The plaintiffs, not having any interest in the site, could not maintain an action for possession of the same in their own name. This was the view taken in the case of Heap v. Hartley [1889] 42 Ch. D. 461. My attention has been drawn to a passage at page 681 of Peacock on Easements, 3rd edition, but it appears to me that passage has no reference to the case of bare license which is not coupled with a grant or an interest in land or profit a prendre.

7. Apart from the reasons given above, the plaintiff's suit must fail on another ground. The licensors of plaintiffs being only sharers of 15-annas could not, without the consent of Shujaat Ahmad Khan, have built upon the site in dispute. If the licensors could not themselves have created a building they could not grant a license to the plaintiffs to build on the site without the consent of Shujaat Ahmad Khan, and as such, the plaintiffs are not entitled, by the license granted to them to build a house on the site in dispute. It is equally clear that the defendant has not a right to build a house on the site in dispute without the consent of the plaintiffs' licensors. But an action against the defendant can be maintained by the plaintiffs' licensors and not by the plaintiffs.

8. For the reasons given above I dismiss this appeal with costs.


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