1. This is a second appeal by the plaintiff against a decree of the lower appellate Court which reduced the damages of the Court of first instance from Rs. 50 to Rs. 25 for demolition of a wall, and which refused the remedy of injunction to the plaintiff. The defendants have filed a cross-objection claiming that on the findings of the lower appellate Court the plaintiff is not entitled to any damages. The findings of the lower appellate Court were that:
the wall which was in dispute was the wall of the upper storey of the house. The wall of the lower storey on which the upper wall rested belongs admittedly to the defendants. The upper wall however appears to have been made by the plaintiff. Having regard however to the fact that the defendants must have had knowledge of the construction of the wall and to the absence of any protest on their part it may, I think, be inferred that the wall was built either with the implied consent or without any protest on the part of the defendants.
2. Learned Counsel for the plaintiff contended that this would amount to an implied grant of licence by conduct of the grantor within the meaning of Section 54, Easements Act. Learned Counsel for defendants said that he could produce rulings to the contrary, but he could not find any such, rulings. I consider that on the findings of the lower appellate Court there was an implied grant of licence by the defendants to the plaintiff to construct the wall of this upper storey on the wall of the lower storey which belonged to the defendants. The two houses are side by side and the lower wall is apparently between the two houses separating them. The next point is contained in the judgment of the lower appellate Court which is as follows:
The wall at best had been erected with the leave and the permission of the defendants. It is not shown that the licence cannot be revoked by the defendants.
3. Now under Section 60(b), Easements Act, a licence may be revoked unless the licensee, acting upon the licence has executed a work of a permanent character and incurred expenses in the execution. The lower appellate Court has found:
The only loss that has been suffered by the plaintiff is the loss of construction of the wall. I am of opinion that a sum of Rs. 25 would be adequate as damages in this case.
4. This is a finding therefore that the plaintiff has incurred Rs. 25 in expense for the execution of this work. Learned Counsel argued that it was not proved to be a work of a permanent character. In the plaint it was alleged that the plaintiff had erected this wall and that the defendant had pulled it down. Those facts were admitted in the written statement, and it was not alleged in the written statement that the wall was of a temporary and not of a permanent character. I consider prima facie that a wall which cost Rs. 25 to construct would be a wall of a permanent character and the finding of the lower appellate Court appears to me to indicate that the wall was of a permanent character. Learned Counsel for respondents-defendants was given an opportunity to refer to the evidence of their witnesses on the record and he stated that he could not find any evidence that the wall was of a temporary character. Under these circumstances I consider that the finding of the lower appellate Court is that the wall was of a permanent character and that expense had been incurred in its execution. Therefore under Section 60(b) the defendants cannot revoke their licence. Some further argument was made by learned counsel, after the arguments were closed, with reference to Section 64, Basements Act, and learned Counsel contended that under that section there should be no injunction issued to the plaintiff and that he would only be entitled to the Rs. 25 compensation granted by the lower appellate Court. I do not think that that section applies to the present case which is a case where the licence cannot be revoked because a work of a permanent character has been made, and where Section 60(b) applies. I consider that Section 64 applies to a case where there is not a work of a permanent character and that in the present case Section 64 does not apply. For these reasons I dismiss the cross-objection with costs and I allow the appeal with costs as the appellant succeeds in the major portion of his claim, that is, that he should get an injunction. I restore the decree of the Court of first instance with this difference that the appellant, although he will have an injunction will only have Rs. 25 damages instead of Rs. 50 decreed by the Court of first instance. The appellant will also receive his costs in the lower appellate Court. In this Court costs will embrace costs on the higher scale. Permission to file a Letters Patent appeal is granted.