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Mahadeo Misir and anr. Vs. Palakdhari Misir and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1236 of 1952
Judge
Reported inAIR1960All743
ActsEasements Act, 1882 - Sections 52
AppellantMahadeo Misir and anr.
RespondentPalakdhari Misir and ors.
Appellant AdvocatePratap Narain Bakshi, Adv.
Respondent AdvocateK.M. Sinha, Adv.
DispositionAppeal allowed
Excerpt:
property - suit against trespasser - section 52 of easements act, 1882 - difference between license and licensee coupled with grant - holder of license coupled with grant - held, suit maintainable. - - he does not enjoy the land or its profits in any way. it is an interest of a complex nature comprising within itself composite features both of a license as well as of a grant. in so far however as it further allows the licensee to hold exclusive possession of the land, to use if for his own personal enjoyment, to plant trees on the same and to benefit himself by the fruits of the said trees, to construct a house and reside therein and to carry on agricultural operations on the said land and enjoy its usufruct or produce, the transaction presents the features of a grant. a..........the lower appellate court, therefore, accepted the defendant's contention that the plaintiffs were bare licensees, and dismissed the plaintiffs' suit holding that it was not maintainable.4. aggrieved by the said judgment and decree the plaintiffs have filed this appeal. having heard learned counsel for the appellants i am of the opinion that this appeal should be allowed. the view of the lower appellate court that the rights conferred under the deed of 20-11-1926 were those of a bare licensee, does not appear to be correct. section 52 of the easement act is as follows:'where one person grants to another, or to a definite number of other persons', a right to do, or to continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be.....
Judgment:

Nasirullah Beg, J.

1. This is a plaintiffs' appeal. It arises out of a suit for demolition of constructions made by the defendants and for permanent injunction. The plaintiffs brought a suit for demolition and removal of the disputed constructions and for the issue of a permanent injunction against the defendants restraining them from interfering with the right of plaintiffs' peaceful enjoyment of subplot No. 95. The plaintiffs' case was that sub-plot No. 95 was settled with plaintiff No. 1 and father of plaintiff No. 2 by the Zamindar in the year 1926 under a deed which is paper No. 70-A and is dated 20-11-1926. Under the said deed the plaintiff No. 1 was accorded permission by the Zamindar to fix cattle troughs or to prepare cow dung cakes or to construct cattle sheds or to instal chappars or to sink wells or to plant trees or to build a house on the said plot.

He was also given a right to cultivate the same, but, if he did so, he was to pay Rs. 14/4/- per year as rent. He alleged that he got possession of the said land in accordance with the afore-mentioned deed, that he had been enjoying the said land since the year 1926 upto about two years prior to the suit i.e. up to about 1948. In the year 1948 the defendant started constructing three cattle troughs on the land in dispute, thereby interfering with the plaintiffs' peaceful enjoyment of sub-plot No. 95. The plaintiffs, accordingly, filed the present suit in the year 1948 for the demolition of the cattle troughs and for a permanent injunction against the defendants-respondents. The suit was contested by the defendants on the ground that the disputed constructions were not made on sub-plot No. 95, that the land in dispute was settled with them by the Zamindars and that, in any case, the; plaintiffs' suit was barred by Articles 142 and 144 of the Limitation Act.

2. The trial Court found that permission had been given by the Zamindar as alleged :by the plaintiffs, that the plaintiffs had got possession of the said land, that the plaintiffs had been enjoying the said land and had been in possession thereof up to year 1948 and that the defendants interfered with the plaintiffs' possession by constructing three cattle troughs over the land. On the above findings the trial Court decreed the plaintiffs' suit in respect of the disputed land.

3. Against the judgment and decree passed by the trial Court the defendants filed an appeal. In appeal it was not argued on behalf of the defendantsthat the findings of the trial Court were wrong. It may, therefore, be taken that it was conceded on behalf of the defendants that the conclusions arrived at by the trial Court on facts were correct. Thesole point that was argued before the lower appellate Court was a legal one, namely that the plaintiffs being licencees had no right to sue. The lower Court held that paper No. 70-A dated 20-11-1926 being and unregistered document could not be given effect to as such. The lower appellate Court, therefore, accepted the defendant's contention that the plaintiffs were bare licensees, and dismissed the plaintiffs' suit holding that it was not maintainable.

4. Aggrieved by the said judgment and decree the plaintiffs have filed this appeal. Having heard learned counsel for the appellants I am of the opinion that this appeal should be allowed. The view of the lower appellate Court that the rights conferred under the deed of 20-11-1926 were those of a bare licensee, does not appear to be correct. Section 52 of the Easement Act is as follows:

'Where one person grants to another, or to a definite number of other persons', a right to do, or to continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right, does not amount to an easement or an interest in the property, the right is called a license.'

Whether the act which is allowed to be done is a bare license or something more than a license would depend on the terms of the transaction. If a person is allowed to do something on the land without interfering with the nature of the land or without taking any profits from it, in my opinion, it could be described to be a case of a bare license. Thus if A is allowed just to pass over the land of B, such an interest can properly be described as a bare license. A merely walks over the land. He has no right to occupy it He does not take any profits out of it.

He does not enjoy the land or its profits in any way. He is merely allowed to do an act on the land which, but for the permission, would be unlawful. The position, however, would be quite different if B allows A not only to pass over his land, but also to take exclusive possession of the same, to plant trees over it or to set up cattle troughs or to prepare cow-dung cakes on it or to put up constructions of a permanent nature on it or to cultivate it by carrying on agricultural operations on the same on payment of rent in respect of it. The interest carved out in this fashion cannot, in my opinion, be termed to be a bare license or a license pure and simple.

It is an interest of a complex nature comprising within itself composite features both of a license as well as of a grant. In so far as it allows the licensee to do some act on the land it partakes of the character of a license. In so far however as it further allows the licensee to hold exclusive possession of the land, to use if for his own personal enjoyment, to plant trees on the same and to benefit himself by the fruits of the said trees, to construct a house and reside therein and to carry on agricultural operations on the said land and enjoy its usufruct or produce, the transaction presents the features of a grant. A transaction like this may be described as a license-cum-grant.

In the case of a bare license it could, in my opinion, be argued that a suit by the licensee is not maintainable. On the other hand, if the interest conveyed is something more than a license and is of such a nature as to entitle the licensee to holdexclusive possession of the land, then, in my opinion, it would not be correct to say that the suit on behalf of such an interest holder against a trespasser is not maintainable. This view of law would find support from the observations made in Panni Lal v. Anant Singh 0065/1945 : AIR1946All284 .

5. On behalf of the respondents the learned counsel has relied on two cases, both of which are, in my opinion, distinguishable. Firstly, the learned counsel has relied on Manbahal Rai v. Ram Ghulam : AIR1927All633 . In this case the plaintiff came to the Court with the allegations that he had got permission to put up constructions on the disputed plot from a co-sharer, that the defendants had taken possession of the said land and had commenced building a house on it. The case of the defendants was that they had also secured permission from the owners to put up constructions on the same land, and had started building a house thereon before the plaintiff could take possession of the same.

The findings of the appellate Court in this case were that the plaintiff never got possession of the land in dispute, that the defendants had actually started constructions on the said land before the plaintiff got possession of the same, and that, further, the permission granted, in favour of the plaintiff was not valid in view of the fact that all the co-sharers had not joined in it. A perusal of the case shows that the basic ground on which the plaintiffs' suit was thrown out was that the permission set up by them was itself found to be bad and invalid. In the present case, it cannot be said nor has it been argued before me that the permission set up by the plaintiffs was bad on ally such ground.

On the other hand, the trial Court has given a finding to the effect that the plaintiffs have succeeded in proving the case of permission as set up by them. Neither the correctness of the finding of the trial Court on the question of possession nor its validity was challenged at any stage of the case. In fact the learned counsel for the appellants has stated before me that it could not be challenged. Further, in the present case the finding of the trial Court was that the plaintiffs had got possession in accordance with the permission given under the deed, that they had been in exclusive possession of the land in suit since the year 1926 up to the year 1948 and that they had been in peaceful enjoyment of the same until the year 1948 when their possession was disturbed by the defendants.

Nowhere in this case any abstract proposition of law appears to have been laid down to the effect that in no case can any licensee of any land whether he be a bare licensee or a licensee of an interest coupled with a grant can faring suit for possession. In the present case the license cannot be termed to be a bare license. Further, the license was an exclusive one and the licensee had also taken possession of the land in pursuance of the license granted in his favour. The case cited, therefore, has no application to the facts of the present case.

6. The second case cited by the learned counsel for the respondent is Gulab Khan v. Lal Mohammad Khan, AIR 1926 Oudh 609. In this case the facts were that the plaintiffs had come to Court with the allegations that they had got a license in August 1922 from the Zamindar to plant trees oncertain land, that when they went to the land, for the said purpose, the defendant did not allow them to plant trees or to take possession over the land in suit. The defendant's case was that they were tenants of the said plot, that they were cultivating a portion of the said land, that they had planted trees over the remaining portion and that the Zamindar had no right to give any permission to the plaintiff.

The Court dismissed the plaintiff's suit on the ground-that the plaintiff had never been able to get possession over the land in question, and hence no interest could be said to have been created in their favour. The Court did not consider the question whether the license was of a simple or of a complex nature. In fact the question whether the license was of a simple or complex type was never argued before the Court. It was admitted on behalf of the plaintiffs that the trees planted by the defendant were admittedly standing on the land in dispute. Under the circumstances it was held by the Court that it was not open to the landlord to create a valid lease in favour of the plaintiff. The suit of the plaintiff was eventually dismissed on the ground that,

'the lease relied upon by the plaintiff in support of his claim is not a valid lease which may give him any good title enforceable in law'.

This case too presents no analogy to the present case.

7. Numerous instances of licenses coupled with a grant of profit in the soil as distinguished from licenses pure and simple are given in para 6 at pages 386/387 of Katiyar's Law of Licenses (3rd Edition) under the heading

'License Pure and Simple Distinguished from A License Coupled with A Grant of Profits or An Interest in The Soil'. Similar instances of exclusive licenses are given at pages 301-302 of Joshi's commentary on 'Easements and Licenses' (1939-Edition), under the headings ''Exclusive license' and 'A License coupled with a grant.'

8. Learned counsel for tile respondents conceded before me that if the license in question is not found to be a bare license but a license coupled with a grant, the suit would be maintainable in the present case and the plaintiff would be entitled to a decree. On this concession I am of opinion that the plaintiffs' case is an unanswerable one. For the above reasons, I am unable to accept the contention advanced by the respondents.

9. In the alternative, learned counsel for the respondents relied on Section 9 of the Zamindari Abolition and Land Reforms Act, 1951. According to it a person who on the date of vesting is in possession of wells or trees in abadi or of buildings situate within the limits of an estate shall continue to remain in possession of the same. In the present case, the defendant is found to have constructed only three cattle troughs on the land in dispute. He did not make any construction nor did he plant any trees on the site in dispute. The mere construction of three cattle troughs cannot be said to result in his exclusive possession of the land in dispute. In my opinion, the possession of the land would still remain with the plaintiffs. The setting up of cattle troughswhich are structures only of a temporary nature can be said to constitute only an interference with the rightful possession of the plaintiff. Such a case, therefore, in my opinion cannot be protected by Section 9 of the said Act.

10. No other contention was advanced on behalf of the respondents before me. I, accordingly, allow this appeal, set aside the decree of the Court below and decree the plaintiffs' suit with costs throughout. Leave to appeal to a Bench is allowed.


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