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Basdeo Rai Vs. Dwarka Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1916All219; 32Ind.Cas.346
AppellantBasdeo Rai
RespondentDwarka Ram and anr.
Excerpt:
transfer of property act (iv of 1882), section 107 - permission to build--lease not executed--dispossession--suit for possession--injunction--license--licensee, position of--easements act (v of 1882), sections 52 to 64. - - the defendant comes here oh second appeal, and the point taken on his behalf is that the plaintiffs have failed to establish any title in that no document was executed much less registered, and that a lease can only be created in the manner laid down in section 107 of the transfer of property act. this contention appears to us to be well founded. it is impossible to separate the building from the land and his remedy as a licensee is clearly to recover damages for the wrongful act of the licensor......finally the plaintiffs were dispossessed towards the end of april 1913. they brought the present suit for possession and injunction to restrain the defendant from interfering with the construction of the gola and collection of the income thereof. it is evident from the plaint itself that the construction of the gola had not been finished when the dispute arose. the courts below have decreed the plaintiffs' suit for possession and injunction. the defendant comes here oh second appeal, and the point taken on his behalf is that the plaintiffs have failed to establish any title in that no document was executed much less registered, and that a lease can only be created in the manner laid down in section 107 of the transfer of property act. that section runs as follows: a lease of immoveable.....
Judgment:

1. The facts of the case out of which this appeal has arisen are briefly as follows. The father of the defendant-appellant Basdeo Rai, who is now a minor, gave the plaintiffs permission to build a gola or a market place on a certain plot of land on the latter agreeing to pay him Its. 6 annually as ground-rent for the same. The plaintiffs thereupon built the gola, but very shortly afterwards a dispute arose between the parties. The defendant's father Interfered with the collection of the income of the gola and finally the plaintiffs were dispossessed towards the end of April 1913. They brought the present suit for possession and injunction to restrain the defendant from interfering with the construction of the gola and collection of the income thereof. It is evident from the plaint itself that the construction of the gola had not been finished when the dispute arose. The Courts below have decreed the plaintiffs' suit for possession and injunction. The defendant comes here oh second appeal, and the point taken on his behalf is that the plaintiffs have failed to establish any title in that no document was executed much less registered, and that a lease can only be created in the manner laid down in Section 107 of the Transfer of Property Act. That section runs as follows:

A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

2. It is urged, therefore, that the plaintiffs having no title ought not to have a decree for possession and that the suit should be dismissed. This contention appears to us to be well founded. On behalf of the respondents it is urged that this plea was not taken in the Court of first instance and only in the lower Appellate Court at a fairly late stage, but the plea was accepted and discussed in the Court below. There is nothing to prevent the appellant from taking the point in this Court. It is further urged that they are not lessees but licensees, that no lease was given to them, that they have erected a building of a permanent nature on the land, that their license is irrevocable and that, therefore, they are entitled to possessions In the alternative it is pleaded that the defendant-appellant is estopped from denying the plaintiffs right of possession as lessees over the land. It seems to us fairly clear from the language of Sections 52 to 64 of the Indian Easements Act that even if the plaintiffs-respondents be mere licensees whose license has been improperly revoked their remedy lies not in a suit for possession, but in a suit for damages as laid down in Section 64, as a licensee is a person without any title and has no interest in the land. It is impossible to separate the building from the land and his remedy as a licensee is clearly to recover damages for the wrongful act of the licensor. In regard to the question of estoppel, reliance is placed on the decision of Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930; 13 A.L.J. 229; 17 Bom. L.R. 420; (1915) M.W.N. 621; 42 C. 801; 21 C.L.J. 231; 28 M.L.J. 548; 19 C.W.N. 250; 17 M.L.T. 143; 2 L.W. 258 (P.C.). The facts and circumstances of that case are totally different from those of the present case and it is impossible to apply that ruling to the circumstances of the case which is now before us. Moreover, on the plaintiffs' own showing no term whatsoever was fixed in the agreement between the parties. It is impossible to say for what term we should have to hold that there was a binding agreement between the parties. If the defendant-appellant be estopped from denying the existence of the lease, at least the term of that lease should be before us. Apparently the parties went about the transaction in a careless manner. They were probably friendly at the time and the dispute arose subsequently. An agreement was made to pay an annual rent but no attempt was made to fix the period. It seems to us fairly clear that the plaintiffs have misconceived their remedy and that they ought to have brought a suit to recover damages for the wrongful revocation of the license. They cannot claim as lessees, for the simple reason that no lease in law was created.

3. We must allow this appeal and set aside the decrees of the Courts below. The plaintiffs' suit will stand dismissed with costs in all Courts, including in this Court fees on the higher scale.


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