P.N. Mookerjee, J.
1. These are two appeals by the two contending parties against the same judgment of the lower appellate court.
2. The suit was a suit for eviction on the ground that the defendant was a licensee in respect of the disputed properly under the plaintiff.
3. The suit was contested and the defence set up a claim of rival title to the disputed property and denied that he was a mere licensee. A further plea was raised that he had erected valuable constructions on the disputed land at considerable costs and so could not be evicted therefrom.
4. The suit was decreed in part by the learned trial Judge, who held that me defendant was a licensee, and rejected his rival claim of title but disallowed the plaintiff's prayer for recovery of possession upon the view that the defendant having erected permanent structures and incurred considerable expenditure in respect of the same, he was protected from eviction, even if he was a licensee upon the principle, underlying Section 60 of the Easements Act, even though the said Act was not applicable.
5. Reliance for this purpose was placed upon the decision of the Allahabad High Court in Mathuri v. Bhola Nath : AIR1934All517 .
6. From this decision of the learned Munsif, both parties appealed--the plaintiff against the refusal of the decree for recovery of possession and the defendant against the rejection of his claim of rival title. These two appeals were dismissed by the learned Subordinate Judge and the learned Munsiff's decision was affirmed. The matter is now before this Court in the present appeals,--one by the plaintiff against the rejection of his claim for recovery of possession, the other by the defendant against the refection of his claim of rival title.
7. On the point of title, in view of the concurrent findings of the two courts below, and having regard to the nature of the question, involved in the point, in the circumstances of these cases, the matter must be held to be concluded against the defendant by reason of the said concurrent finding and, accordingly, his appeal (S. A. No. 1202 of 1960) must be dismissed, though without costs.
8. On the other point, the courts below have, merely because of the fact that certain constructions have been made by the defendant on the land, held by him under the license and some expenditure has been incurred by him in that connection, extended to him the protection, which, according to them, was available under Section 60 of the Easements Act, on the principle, underlying that section, as the said statute was. admittedly, not applicable in this State.
9. In my view, this does not appear to have been a proper approach to the problem, involved in this part of the rase. It is true that the defendant has erected some pucca structures and has spent some money for the same, but it is hardly a proper inference to hold that the same was done by him acting on the license or within the terms of the license, granted by the plaintiff or his predecessor. In this view, even the principle, underlying the aforesaid statutory provision, would not apply, as the statute requires such act on the part of the licensee, acting on the license. From this stand-point, even the view of this Court, as expressed in Surnomoyee Peshakar v. Chunder Kumar Das, (1910) 12 Cal LJ 443, and Moti Lal v. Kalu Mandar, 19 Cal LJ 321: (AIR 1914 Cal 173). would not help the defendant and the latter would not be entitled even to compensation, far less to any protection from eviction. I may add here that on the point of protection of licensees from eviction, the above decisions of this Court seem to go against the view of the learned Judges of the Allahabad High Court in : AIR1934All517 , and it may very well be contended, in view of these authorities, that, even when the licensee has made constructions and incurred expenditure, acting on the license, if the statute was not applicable, it may not be open to the court to apply the principle, underlying the same as that would be in conflict with the settled principle in this Court for the above point under the aforesaid two decisions.
10. Be that as it may, this question need not trouble me in the present cases, as I have already found that whatever constructions were made by the defendant and whatever expenditure was incurred by him in that connection, cannot be said to have been made or done by him, acting on the license. The defendant, therefore, properly speaking, would not have been entitled to any relief or protection, either under Section 60 of the Easements Act or the principle, underlying the same, or, even to compensation under the aforesaid two decisions of this Court, reported in (1910) 12 Cal LJ 443 and 19 Cal LJ 312: (AIR 1914 Cal 173).
11. In fairness to the defendant, however. Mr. Dutt, appearing on behalf of the plaintiff appellant, while he opined his case, intimated to me that he would not ask for any relief higher than that, which might have been available to him on the authority of the two decisions of this Court, referred to hereinbefore, and, in my view, that will be, in the circumstances of these cases, a perfectly equitable view and, accordingly, while allowing this appeal (S. A. 447 of 1960) and allowing the plaintiff's claim for eviction, I will subject such decree to two conditions, namely, that, for the constructions, made by the defendant, and the expenditure, incurred by him in that connection, on the disputed land, he will be entitled to adequate compensation from the plaintiff before the plaintiff can be allowed to recover possession and, further, that the defendant should have, at least, a year from this date, for vacating the disputed properly.
12. Subject as above, the plaintiff's appeal (S. A. 447 of 1960) will be allowed, the judgments and decrees of the two courts below will be modified and the plaintiff will get a decree for recovery of possession also, in addition to the decree for declaration of title, which he has already obtained, on conditions, specified hereinbefore. For the ascertainment of the amount of compensation and for fixing time for payment of the same, the matter will now go back to the court of appeal below, who will take necessary evidence in the matter, and the plaintiff's appeal before that court will be re-heard and disposed of in accordance with law in the light of the observations, made hereinbefore,
13. There will be no order for costs in this Court, so far as the above appeal (S. A. No. 447 of 1960) is concerned. Other costs will be in the discretion of the court of appeal below, when it disposes of the matter finally.
14. Let the records go down as quicklyas possible.