1. This is a defendant's appeal arising out of a suit for possession of land, removal of certain constructions put upon it by the defendants and for damages and induction. The first Court dismissed the plaintiffs' claim; but on appeal the lower appellate Court has decreed it. Its findings are unfortunately not so categorical as they ought to have been, but there is no doubt that what the learned Judge has found is that the land in dispute has been used by the plaintiffs as their Court yard (Sahan darwaza). They had possession over it by having cattle troughs (churnies) and a platform, (chabutra) at this spot; and that the defendants had no possession over the land at all.
2. Learned advocate for the defendants-appellants relied strongly on the case of Manbahal Rai v. Ram Ghulam Pandey 1927 All. 633, and contends that the plaintiffs being mere licensees have no right to maintain this action in their own name. In the case of Manbahal Rai v. Ram Ghulam Pandey 1927 All. 633, decided by a learned Judge of this Court it was assumed that the right of the plaintiff was based entirely on a bare licence and that there had been no licence coupled with the grant. It is possible that the licence was for the purpose of building upon the land. The building may have' been only of a temporary character although licence might not be tantamount to a grant. On that assumption it was held that the plaintiff as a bare licensee could not maintain an action for possession against another person who also claimed to be a licensee from the same licensor. In. that case possession apparently had not been taken by the plaintiff and before he could build upon upon the land, the defendant had stolen a march over him by putting up a construction. The case therefore is distinguishable.
3. The authority for the proposition that a bare licensee cannot maintain, an action in his own name is Heap v. Hartley (1889) 42 Ch. D. 461. In that case a patentee of machinery had granted to the plaintiff the full and exclusive licence to use and to exercise the patented invention within a certain district and covenanted not to grant any licence to any other person; nevertheless the patentee afterwards sold two of the patented machines to the defendant firm who used them within that district. Upon an action brought by the plaintiff against the defendant, without joining the patentee, it was held that the exclusive licence was not intended to be a grant to the licensee of any right to sue and that accordingly the plaintiff could not maintain the action. It was laid down that a licence may be, and often is, coupled with a grant, and that grant conveys an interest in property, but licence pure and simple, and by itself, never conveys an interest in property; it only enables what he could not otherwise do except unlawfully and that therefore an exclusive licensee has no title whatever to sue. The case of Fitzgerald v. Firbank (1897) 2 Ch.D. 96, where the grantee of an exclusive right of fishing and taking away the fish, from a stream was entitled to maintain an action against a wrongdoer, is also not in point, because it was not a mere licence to fish, but also a right to carry away the fish caught which was a profit a prendre.
4. We however think that the case Northam v. Bowdon (1855) 11 Ex. 70, is more in point. There the plaintiff who was a licensee of the owner of the soil to search for the tin ore, had in searching for that mineral made certain excavation in the soil and before he abandoned the soil, the defendant carted away some of the soil so thrown out by the plaintiff. In an action brought by the plaintiff it was held that he had a sufficient possessory title to the mass thrown out so as to enable him to maintain an action against the defendant, a wrongdoer. There the plaintiff was merely searching for tin ore and would have examined the soil and might have taken any bits of ore that might be discovered and would have thrown away the soil. Nevertheless, it was held that inasmuch as the plaintiff by permission of the owner was at liberty to examine the soil for the purpose of separating the ore from it, he had possessory right to the entire mass as against a wrongdoer and could maintain an action for its conversion.
5. In the present case, even if we assume that the constructions, not being of a permanent character, the licence was not coupled with a grant, it must be conceded that the plaintiffs were in possession of this piece of land which, they were using as their Court yard and over which they had cattle troughs and a platform. The defendants had unlawfully removed the cattle troughs and the platform and taken possession of the land by building upon it. We think that the plain-j tiffs had sufficient possessory title to maintain the action against the defendants. We accordingly dismiss the appeal with costs.