1. On the findings of both the Courts below, Musammat Durga and Sia Ram are the licensees of a certain piece of land in Farrukhabad town upon which a kacha puckka house has been constructed, and the plaintiffs are the licensors of that land. In a previous suit; Durga denied the plaintiff's title Sia Ram did not. Durga also executed a usufructuary mortgage, under which, however, possession was not given. The plaintiffs then sued for a declaration that the usufructuary mortgage was inoperative against their title to the lard and for the ejectment of the defendants. The Trial Court granted them a declaration that the usufructuary mortgage was inoperative and that Durga had lost her right to residence but refused ejectment.
2. The lower Appellate Court granted both reliefs. The defendants appeal here.
3. It is quite clear that the defendants, Durga and Sia Ram, are licensees. Apart from the fact that Sia Ram never deried the plaintiff's title, it is settled law in this Court that a licensee in possession does not, like a tenant, by denying title of the grantor of the license, forfeit the license and become liable to ejectment [Dharam Kunwar v. Fakira A.W.N. (1901) 157 and Akbar Ali Khan v. Shah Muhammad 40 Ind. Cas. 443 : 39 A. 621 : 15 A.L.J. 592.] So there s(sic)no case for ejectment. I do not agree with the a pellants that Musammat Durga did not deny the title of the plaintiffs. I think she did. It is to be noted that the plaintiffs did not sue for ejectment by revocation of license. Had they done so, the defence raised under sect on 60 of the Easements Act would have been material.
4. As a result, I set aside the decree of the lower Appellate Court and uphold the decree of the learned Munsif only so far as it awards a declarat on that the mortgage cannot operate against the interests of the plaintiffs. The suit for dispossession of Durga and Sia Ram is dismissed. The plaintiffs will pay their own costs and those of Durga and Sia Ram in this Court and the Courts below. These costs will include in this Court fees on the higher scale.