B.K. Chaturvedi, J.
1. This is plaintiff's second appeal against a decree dated 27-8-1952 of the 2nd Additional District Judge, Hoshangabad, reversing a decree of the Civil Judge, Class II, Hoshangabad. The plaintiff's case is that on 5-2-1934 he had purchased the absolute occupancy plot Khasra No. 500/1, area 1 acre, of Patti No. 2, of village Meragaon, Tahsil and District Hoshangabad, from Abdulla Bhai and since then he has been in its possession. A license to use the site measuring 28 feet x 46 feet out of this plot for a dwelling house was granted in favour of one Babulal Kumhar. The said Babulal was paying Rs. 2/- as license fee; and he paid this fee till 1947-48. He, then, sold the house on 15-5-1948 to the defendant-respondent by a registered sale-deed without the permission or consent of the plaintiff appellant.
The plaintiff sued the defendant for possession of the site after demolition of the structure and removal of material. The trial Court came to the conclusion that the plaintiff is the owner of the said absolute occupancy plot and that Babulal was a mere licensee and as such, according to Section 56 of the Indian Easements Act, he could not transfer or sell the house in suit to the defendant. The trial Court, therefore, decreed the suit. The lower appellate Court reversed the findings and held that the plaintiff was not the absolute occupancy tenant of the said Khasra No. 500/1.
2. Shri M. Adhikari, learned counsel for the appellant, contends that this finding is not based on proper evidence, and I have no doubt in my mind that in view of the entries in Khasra Panchsala (Sam-vat 1989-1992), Ex. D-4 (on page 44 of the paper-book), and the sale-deed, dated 5-2-1934 (Ex. P-4 at page 33), executed by Abdulla Bhai in favour of the plaintiff, this finding cannot be sustained. Even Shri P.K. Tare, learned counsel for the respondent, frankly conceded that he was not in a position to justify this finding. He, therefore, urged that the trial Court's findings that (1) the plaintiff-appellant is the absolute occupancy tenant of Khasra No. 500/1 and that (2) Babulal was a licensee and was allowed to build a house on the plot should be taken to be correct.
3. The question, then, arises : Can the plaintiff-appellant ask the defendant-respondent, who has purchased the house in question from Babulal, Licensee, to demolish the structure and remove the material ?
4. In this connection it is observed by the lower appellate Court that even assuming that Babulal had a license, then the moment he was allowed to build a pucca structure the license became irrevocable and heritable and on the basis of Md. Sher Khan v. Amjad Hussain, AIR 19.19 All 494 (A), it should be presumed that licensees in towns, unlike in agricultural areas, have rights of alienating the houses. Shri P.K. Tare, learned counsellor the respondent, justifies this view of the learned Additional District Judge on the ground that the site now is in the vicinity of Itarsi, a town which is rapidly expanding.
5. Shri Adhikari, on the other hand, urges that there is only one section in the Indian Easements Act (V of 1882) on this point. That section (Section 56) runs as follows :
'Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a license cannot be transferred by the licensee or exercised by his servants or agents.'
The learned Advocate General contends that the two parts of this section should be read separately. The first part deals only with a license to attend a place of public entertainment; and the words save as aforesaid' mean 'except the license for attending a place of public entertainment'. In this manner, Shri Adhikari 'urges that, according to this section, every other license must be held to be non-transferable. This view has, however, not been approved in Janardan v. Ramchandra, AIR 1927 Bom 240 (B). According to Fawcett J. fat page 243), the words' 'save as aforesaid' in the second part of the section bring in the words 'unless a different intention is expressed or necessarily implied' and so it is the nature of the license that is to be first considered.
It means that the saving clause which applies to the former part applies equally to the second part. The same view has been adopted by Niama-tullah, J., in AIR 1929 All 494 (A) and by a Division Bench (Kendall and Rachhpal Singh, JT.) in Ram Bharose v. Bisnath Prasad, AIR 1934 All 336 (C). This view in my opinion, can be justified on the principles of Common Law of England as there is very little difference between those principles and the law as laid down in the Indian Easements Act on this point: (See Amin and Shastri's Law of Easements, Second Edition, page 555). A license, in my opinion, cannot be separated from the contract and it is the contract that is first to be seen to determine the intention of the parties and the nature of the license, It was argued in Millenium Productions Ltd. v. Winter Garden Theatre (London) Ltd., 1946-1 All ER 678 (D), that a license has a separate existence, distinct from the contract which creates it. Repelling this contention, the Master of the Rolls (Lord Greene) observed thus :
'That seems to me to be putting the matter on the wrong footing. A license created by a contractis not an interest. It creates a contractual right to-do certain things which otherwise would be a trespass. It seems to me that, in considering the nature of such a license and the mutual rights and obligations which arise under it, the first thing to do is to construe the contract according to ordinary principles.'
6. This is the main guiding principle in such matters. In appeal, though the decision of the Court of Appeal in the above case was reversed, yet the House of Lords, in Winter Garden Theatre (London), Ltd. v. Millennium Productions Ltd., 1948 AC 173 (E), also proceeded on the footing that the question whether a license is revocable or not is entirely a question of the construction of the contract. (See Gale on Easements, pages 54-55, 1950 Edition). Lord MacDermott, at page 204, after observing that on the construction of the contract the license was revocable during the material period, took up the question. 'How could revocation be effected?' and observed thus :
'Like the first, this question involves the construction of the contract and it also requires consideration as to what term, if any, should be implied' therein to give effect to the intention of the parties. My Lords, the profusion and diversity of licences and the freedom of contract regarding them are such as to discourage any unnecessary formulation of general propositions on the subject.'
It will be manifest that to determine whether a license is transferable or not, it becomes necessary to see the intention of the parties and, therefore, the terms of the contract, oral or written, are to be considered. In this view it will be obvious that the expression 'unless a different intention is expressed or necessarily implied' should be held to govern both, the parts of Section 56 of the Indian Easements Act.
7. As has been observed in Md. Sher Khan v. Amjad Hussain (A) (cit. supra), such an intention may be gathered from the terms of the grant (or contract), be inferred from surrounding circumstances, or be found as an incident of local usage.
8. The local usage may differ from place to place and from time to time. The rights of tenants, to sell houses, which they had built for their occupation in a village homestead upon permission given by the Zemindar, have been the subject-matter of many decisions by the Courts in Uttar Pradesh ever since the year 1898. In Sri Girdhariji Maharaj v. Chote Lal, ILR 20 All 248 (E1), the High Court of Allahabad relied upon what it held to be
'the general and well known custom of the United Provinces--a custom so well established that it might be treated as the common law of the Provinces',
and held that
'a person, agriculturist or agricultural tenant, who is allowed by a zemindar to build a house for his occupation in the abadi, obtains, if there is no special contract to the contrary, a mere right to use that house for himself and his family so long as he maintains the house and does not abandon it by leaving the village.'
Most of this custom was recorded in the wajib-ul-arzs of the villages which uniformly laid down that
'a ryot occupying any house cannot be turnedout of it by anybody so long as he lives in it, but heis not entitled to alienate the site. He can removeand sell the materials of the building constructed'by him'.
In Bhajan Lal v. Muhammad Abdus Samad Khan, ILR 27 All 556 (E2), it was held that apart from any custom recorded in the wajib-ul-arz forbidding a tenant to transfer the site of a house occupied by him. in the abadi, a tenant has not, in the absenceof a special custom or contract giving him such a right, any right to transfer the site of his house in the abadi. In Ram Bharose v. Qamar Zamani Begam, AIR 1927 Oudh 314 (F), the principle was extended to a non-agricultural village, and it was held by Wazir Hasan J. (as he then was) that in such a village, if the zemindar grants leave to a person to build a kachcha house on parti land, the grantee becomes a mere licensee and a transfer, by him is not enforceable.
The entire case law on this point has been reviewed by the Full Bench in Muhammad Ahmad .Said Khan v. Shiam Lai, ILR (1944) All 619 : (AIR 1944 All 177) (G), and the ratio deduced is that an agriculturist, or an agricultural tenant, or any other person necessary for the village economy, who is allowed by the zemindar to build a house for his occupation in, the abadi obtains a bare right to use that house for himself and his family so long as he maintains the house and does not abandon the house by leaving the village. He is a bare licensee of the site and has no right to alter its user.
9. On the other hand, it has been held in many cases that the presumptions which obtain in agricultural villages have no application to towns and cities and the occupiers of houses can freely transfer the sites as of right, See Jamna Kuer v. Abdul Nabi, 16 Jnd Cas 353 (All) (H); Govind Piasad v. Kundan, AIR 1924 All 112 (I); AIR 1929 All 494 (A) and AIR 1934 All 336 (C). The reasoning in the last case has been followed by Justice Pollock in Ganpatrao v. Motilal, 1938 Nag LJ 144: (AIR 1938 Nag 480) (J), where the site in dispute was not technically a part of the abadi, but it was actually a part of Wardha town. It was held that where a man obtains land in a growing town, the ordinary presumption would be that the land was acquired with a right of transfer. If the landlord contends that the tenant had no right to transfer the building which he had built and which he is occupying, it is for him to show that under the terms of the license the right of the tenant was limited and it was expressly agreed that he would be incompetent to make a transfer.
10. In Ram Narain v. Kunj Behari Lal, 1950 All LJ 84 (K), the plots were situated within the municipal limits of the city of Kanauj and a portion of it was included within the limits of Patti No. 1 of village Kandrauli. It was observed by Agarwala J. that if the land is not proved to be a part of an agricultural village at any anterior time and is part of a town or city, there is neither the presumption of the ownership of such land by the zemindar, nor is there the presumption that the land in the occupation of persons useful in village economy is deemed to be by permission of the zemindar. It was, therefore, held that occupiers of land in such places would be presumed to be in possession as proprietors.
11. It has then been pointed out in the Full Bench case, Muhammad Ahmad Said Khan v. Shiam Lal (G) (cit supra) that there is a distinction between a village losing its incidents by the process of time and as a result of some statute. Time may obliterate all those conditions in which the wajib-ul-arz was prepared or which might attract the applicability of the rule enunciated above. A legislative enactment, on the other hand, may not make such a clean sweep of those incidents.
It was added that in the case where a village has ceased to be an agricultural village in consequence of the process of time, that is, where the village may have become the centre of some industry or where the bulk of the population has ceased to be agricultural or where the tenant or the ryot has asserted rights not strictly compatible with his position, for a number of years, with the implied consent of the zamindar, in other words, where the change has been brought about slowly but steadily, that is, by an evolutionary process, the zamindar shall not be allowed to repudiate what he or his predecessors have encouraged for a long series of years. In the case of a legislative enactment, no such principle comes into operation. On this ground it was held in that case that the U. P. Town Areas Act had affected the rights of the zamindar only to the extent that it was necessary 'for the purposes of the Act'; his proprietary rights having remained untouched.
12. On the basis of this reasoning it was held in Yashpal Singh v. Jagannath, ILR (1946) All 240: (AIR 1946 All 410) (L), by a Division Bench that in agricultural villages the prohibition against transfer .has passed from the domain of a presumption to the domain of a rule of law, and there should be no general presumption against a zawindar, if he does not bring a suit for ejectment against a stranger purchaser. There may be so many reasons for his inaction--the house sold may be of very small value, the purchaser may not be an undesirable person, or the zamindar himself may not have the wherewithal to launch a litigation. It was also laid down that the question whether a prevailing practice has the essential attributes of a legally binding custom is a question of law.
13. Most of these cases are bound to lose their importance after the abolition of the zamindari; but they may still be of some use in deciding cases of old licenses. I, therefore, thought it proper to refer to them here. Where, however, there is no question of a zamindar and a tenant, as in the instant case, where it was the absolute occupancy tenant, who had given land to Babulal for building a house on it, and where there is no satisfactory evidence about the suit land being still in an agricultural village or being within the limits of a municipal area in the growing Itarsi town, there, in my opinion, can be no presumption either in favour of the transfer or against the transfer.
The question can be determined only on the wording of Section 56 or of Section 59 of the Indian Easements Act. It has, however, to be borne in mind that a license does not create an interest in the land as it is merely leave to do a thing lawfully which otherwise would be unlawful and is thus a matter purely personal between the grantor and the grantee of the license. (Alagiri v. Muthuswami, AIR 1940 Mad 102 (M).)
14. It was well said by Pollock C. B. in Cole-man v. Foster, (1856) 156 ER 1108 (N), that a license is a tiling so evanescent that it cannot be transferred,, and on this basis it was laid down by a Division Bench in Chinnan v. Ranjitbammal, ILR 54 Mad 554: (AIR 1931 Mad 216) (O), that a license enjoyed in respect of a property is not annexed to it and is not a transferable or a heritable right, and so the license is determined on the transfer of the property affected by it. Applying this principle to the facts of the instant case, it can be seen that the moment Abdulla-bhai sold the property to the present plaintiff, the license, if any, given to Babulal by Abdullabhai could be determined on the transfer of the property and it is for the plaintiff to say on what condition the. license was again renewed or continued.
Plaintiff Mannoolal (P.W. 1) admits that Abdullabhai had purchased the suit field from Kadar Bhai but he could not say in what year the license was granted and whether it was Kadar Bhai or Abdullabhai who had given license to Babulal for constructing a house on the suit land. The plaintiff could not say anything even about the terms of the license, that is, whether, according to them, Babulal couldtransfer the house or not. The plaintiff only deposed that he purchased the land in 1934 from Abdullabhai and vised to get Rs. 2/- from Babulal till 1936 as license-fee. But, then, Babulal stopped payment of this fee when the plaintiff wanted to increase it to Rs. 8/-, Nothing more can be ascertained from therecord. Babulal would have been able to throw some more light on the terms of the license, bat he died before the institution of the suit.
15. It is conceded by Shri Adhikari, learned counsel for the appellant, that Babulal had built a pucca house which is of a permanent character within the meaning of Section 60(b) of the Indian Easements Act. It is obvious that after the expenditure the license had become irrevocable. The question, then, arises, whether a transfer of the suit house by Babulal to the respondent can extinguish an irrevocable license? It was observed by Gokul Prasad J. in Kallu' Shall v. Raheem Baksh, AIR 1924 All 825 (P), that the mere fact that the license had become irrevocable does not necessarily imply that the licensee acquired a right to transfer the license or the building for, alicense is ordinarily only a personal right and carries with it the incident of non-transferability.
This judgment was upheld by a. Division Bench in Letters Patent Appeal. In other words, it laid down that Section 60 does not necessarily control Section 56; and that both sections should be taken to be independent of each other. As I am of opinion that Section 56 is not fully' applicable to the instant ease. I do not think it proper to express any considered opinion on it.
16. In interpreting Section 59 (Grantor's transferee not bound by the license), smother view has, however, been taken by the Courts. It is clear that Section 59 has been enacted in order to avoid an inference that the right of revocation is confined to the grantor personally. Katiar in his Law of Easements and Licenses observes :
'But if the license is for some reasons irrevocable by the grantor himself, this section does not authorise the transferee to revoke it and the provisions of this section are in this respect subject to the provisions of Section 60.'
(Page 398, Note 3; 1955 Edition).
17. All the relevant eases have been cited by the author in foot-note 6. The reasoning in those cases has been that if the grantor of a license could not himself revoke a license, how could his transferee revoke it? In other words, the reason given is that the transferee docs not get any better rights than those possessed by the transferor. It was on this footing that the Sate Justice Kaushalendra Rao held in Rahim Bax v. Samsu, 1950 Nag Li 460: (AIR 1951 Nag 215) (0), that a licensor cannot put an end to an irrevocable license by a transfer of property affected by the license and that a transfer does not ipso facto extinguish a license. I respectfully concur in this opinion.
18. In my opinion, in the instant case, Section 59 (and not Section 56) will be applicable, as the question of revocation of the license arises after the transfer of the absolute occupancy land to the present plaintiff and so far as Section 59 is concerned, the view expressed above is clear that the license cannot be revoked by the transferee of the suit land.
19. It is on this short ground that I dismiss this appeal with costs.