D.K. Kapur, J.
(1) [THERE was previous litigation between the parties which was compromised and it was settled that the plaintiffs would keep 6 cots on the roof and a cot in the tin barsati during the rainy season. The barsati got demolished and the landlord got built 3 rooms, 2 kolkies and a store on the roof. The plaintffs sued the landlord for a mandatory injunction that he should demolish the new construction to permit the plaintiffs user of the roof claiming the same as part of their tenancy. The defendant contended that the permission to use the roof and barsati was a revocable license and the same stood revoked by blowing off the barsati and by the construction of rooms. Trial Court held in favor of the landlord while the Senior Sub-Judge held it to be an adjunct of tenancy and allowed the appeal but modified the relief that defendant should permit keeping 2 cots in a room and permit enough space for sleeping purpose. The landlord appealed to the High Court.] Paras 8 to 12 of the judgment are :-
(2) The allegation of the defendant (now appellant) was that previously there were six cots placed on the roof and Ganga Saran was permitted to use the barsati but after the the barsati fell down the respondents were permited to place eight cots on the roof. This concession could obviously only have been allowed to the respondents if they did have a right to use the portion under the barsati. In the circumstances, I conclude that landlord has permitted the use of the roof as well as the portion of it under the barsati by the tenants and has also recognised this right by permitting two extra cots to be placed on a part of the roof other than that under the barsati, after the barsati is alleged to have fallen down. Thus, the appellant has recognised the license of the respondents and related it to the lease itself. I, thereforee, hold that this is a case of a license coupled with a transfer of property and is governed by section 60 of the Indian Easements Act, 1882, and is not capable of being revoked by the grantor.
(3) A number of authorities have been referred to in connection with the legal position existing in the present case and I may now shortly refer to them. A leading case Wood v. Leadbitter 67 RP 811, has been relied upon to show that a license is a revokable license. It was there held that a license can be revoked at any time and the only license that cann of be revoked is a license which is coupled with a grant, on the argument that no person can defeat his own grant and would be estopped from doing so. That proposition was based on the judgment of Vaughan Ch. J. in Thomas v. Sorrell, (1674) Vau R 341, which is in the nature of a leading case on the subject.
(4) Reference was also made to Prosonna Commar Singha v. Ram Commar Ghose, I.L.R. 16,Cal 640, where a license was held to be revokable but that again was a case where there was no occasion of any transfer of property or grant. The plaintiff in that case had been permitted to use a portion of the land of the defendant as a privy. When this user was stopped, the plaintiff claimed an injunction and as there was no transfer of land involved the court held that the license was revokable. Similarly, Parma Sah and another v. United Provinces and others A.I.R. 1939 Oudh 196, is a case on which great reliance has been placed by the appellant. There, was a transfer of land but the license was to use some other portion of the land for constructing a portice and to place a signboard on the same. The two portions were not even connected with each other. It was held that the license must be regarding the same property as the property transferred and, thereforee the license was revokable. In the present case the license is with respect to the same house in which a portion has been let out to the respondents. It is, no doubt, true that strictly speaking the roof does not form a portion of the property demised to the tenants and, thereforee, it might be said that the property regarding which the license is granted, is not the same as that was transferred to the respondents. But I do not think that this construction should be placed on section 60(a) of the Indian Easements Act, 1882. All that is required is that the license should be coupled with the transfer of property and if the license is regarding the same property in the sense of being in the same house, on the same piece of land, I think it is sufficient in accordance with the provisions of law and the license becomes irrevokable.
(5) In this connection it is necessary to refer to judgment of the Bombay High Court reported as Lakshmichand Khetsey Punja v. Ratan Bai 29 Bom. LR 78, in which Kemp, J. held that the right to use the privies and wash-rooms in a house, 'a portion of which was let out to the tenants, was a license coupled with a grant and, thereforee, irrevokable under Section 69(a) of the Indian Easements Act. It is true that in that case Marten, C.J. did not hold that the license was in evokable but held that it was in the nature to an accessory license on (he basis of the judgment of the House of Lords in Perpetual Investment Building Society (1923) A. C. 74, which is the same thing as applying section 55 of the Indian Easements Act to the facts of the case. The judgment of Kemp, J. relating to the question arising in this case is in the following terms:-
'THEappellant in bids evidence says, he let a room with the use 6f the privy and wash-house. I am of opinion that this was a right given to them by contract and annexed to the tenancy agreement 'under which they occupied their rooms. I think the right to use the privy on that floor was a license coupled with the grant of the tenancy.'
As'I have said earlier, in the present case there has been a compromise where the parties have recognised the right of the user of the barsati by the plaintiffs. It, thereforee, follows that in a sense a similar situation exists in the present case; and I also come to the conclusion that this is a case where the license was coupled with the grant of tenancy. I may mention here that in the case before the Bombay High Court the question whether the license was revokable or irrevokable was not material as it was a case of the tenant being fatally injured in the privy by reason of his collapse and both the learned Judges came to the conclusion regarding the right of his legal representatives to claim damages on account of negligence by the landlord.
(6) In Janardan Mahadeo Bhase and others v. Ramchandra Mahadeo Bhase and others, A.I.R.1927 Bom. 240, there was a partition between two brothers and there was a well which fell to the share of one of the m, whereas the other did not have a well. The partition deed allowed the brother who did not have the well, to take water from the well. When the brother having the well put a wall around it and thus prevented the other brother from using it, dispute arose, and it was held that this was an irrevokable license and the user of the well by the aggrieved brother could not be prevented. This judgment is an authority for the proposition that it is not necessary that the license, which coupled with the transfer, should be on exactly the same property. The well was undoubtedly in the property of the brother in whose share it had 'fallen and yet the license was held to be irrevokable. In the present case the barsati is not a part of the propeerty demised to the plaintiffs; but the use thereof has been coupled with the tenancy in their favor. I, thereforee, come to the conclusion that in the circumstances of the present case the license is not revocable and the learned Senior Sub- Judge has rightly held that it has become an adjunct to the property.
(7) I now turn to the question whether the relief granted by the Senior Sub-Judge is proper relief to b3 granted in the circumstances of the case. He has rightly held that a mandatory injunction to demolish the construction, which have now been made, where the barsati originally stood, should not be granted. Mr. Dayal says that I should come to the conclusion that the license now stands revoked because the property, to which it related, no longer exists. But this is not, strictly speaking, correct as (he property still stands and can be restored to its original position by the grant of the mandatory injunction originally claimed by demolishing the rooms, etc., which have been built in place of the original barsati. However, the plaintiffs in the present case have stood by while the constructions, have been made and it is not a fit case where the rooms, which have been constructed, should be demolished. I, thereforee, agree that some sort of modified relief should be granted to the respondents. The relief, as granted is that the plaintiffs are entitled to place two cots in any one of the three rooms built at the place where the barsati stood and the defendant is to intimate to the court as to which portion he will allow the plaintiffs to use. I think that the interests of justice will be served if the appellant constructs a temporary structure, i.e. a kind of removeable barsati to cover two cots and places it for the use of the plaintiffs in the open roof where they have been allowed to place their eight cots, according to the state rent of facts contained in the written statement of the appellant. Such a construction will be in accordance with the provisions of the Municipal Corporation Act. The appellant will construct such a structure and have it placed on the roof of the second floor. If he does so, the direction granted by the Senior Sub-Judge in the judgment under appeal will not need to be complied with. If, on the other hand, the appellant fails to construct such a temporary barsati or to construct a barsati, which is demolished by the Municipal Corporation, then the respondents will become entitled to use any one of the three rooms in accordance with the directions already granted by the Senior Sub-Judge. In other words, in case the alternative direction that I have stated above, is not carried out by the appellant then the judgment and decree of the Senior Sub-Judge will become operative and executable. I have given this direction under section 151 of the Code of Civil Procedure in order to avoid the loss of one of the rooms to the appellant in case it is placed at disposal of the respondents for sleeping purposes. Except for this modification in the order of the Senior Sub-Judge, Delhi, this appeal is dismissed but the parties are left to bear their own costs.