IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.509 of 1998 Date of decision : June 16, 2010 Bhag Chand and another …Appellants. Versus Sarnu Ram (dead) through LRs …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Karan Singh, Advocate. For the Respondent : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal is directed against the judgment and decree dated 8th September, 1998 of the learned District Judge, whereby allowing the appeal of the plaintiff-respondent Sarnu Ram (dead and now represented by his LRs) against the judgment and decree of the trial Court, by which his suit was dismissed, learned District Judge set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff-respondent, for issuance of mandatory injunction. 2. Appeal was admitted on the following substantial questions of law: “1. Whether the defendants have become owners of the suit land by way of family Whether reporters of the local papers may be allowed to see the judgment? …2… arrangement made by plaintiff in the year 1975 and such family arrangement requires writing and registration? 2. Whether on the representations of plaintiff, defendants considered themselves to be the owners of the suit property and have invested huge amounts in the shape of repairs, construction and raising of Orchard and changing their position and, therefore, the plaintiff is estopped from filing the suit? 3. Whether in alternative the defendants were inducted as tenants on the suit property by the plaintiff and now they have become owners by operation of law? 4. Whether defendants have spent their huge amount on the suit property in the form of construction of shop, repairs of houses, raising of retaining walls and orchard without objection of the plaintiff and thus the plaintiff in alternative had created irrevocable licence in favour of defendants of the suit land? 5. Whether suit for mandatory injunction against the defendants who are in settled possession of the suit property is maintainable? 6. Whether plaintiff is entitled to recovery of Rs.7,920/- alongwith 12 per cent interest with effect from 8.8.89? 7. Whether court fee of Rs.8,296/- is payable on the cross-objections of defendants in the 1st Appellate Court? 8. Whether learned Distt. Judge has misconstrued, misinterpreted the material on record and has erred in reversing the decree of dismissal of the suit passed by learned trial court?” 3. Sarnu Ram was owner in possession of 40 bighas of land, situate in village Shivan, in Tehsil …3… Kumarsain of Shimla District. He had no male issue, but only two daughters. Defendant-appellant Satya Devi was his eldest daughter. She was married to defendant- appellant Bhag Chand. His second daughter was Sena Patoo, who was married to one Amin Chand. According to the plaintiff, when he grew old and became incapable of cultivating his land and his wife also, on account of old age, felt difficulty in looking after the land, he, in the year 1982, approached both his sons-in-law, i.e. appellant Bhag Chand and said Amin Chand, to cultivate his land or to arrange to cultivate it through some other person, on his behalf. Defendant-appellant Bhag Chand allegedly requested plaintiff Sarnu to let him cultivate the land by staying with him at his place in village Shivan. This request of defendant-appellant Bhag Chand was acceded to by plaintiff Sarnu and both the defendants-appellants, i.e. Bhag Chand and Satya Devi, started living with Sarnu Ram in village Shivan and cultivating the land. In the year 1985, plaintiff’s wife died and thereafter defendants- appellants started neglecting the plaintiff. Plaintiff also came to know that wrong entries had been procured by Bhag Chand in the revenue papers, showing him as Gair Maurusi under him, in respect of 19 bighas 15 biswas land, out of his total land, situate in village Shivan. Some land of the plaintiff had been acquired by the Government for …4… public purpose. Defendant-appellant Bhag Chand received half of the compensation money from the Land Acquisition Collector, on the basis of the entry in the revenue papers, showing him as Gair Maurusi. He was called upon to refund the money to the plaintiff, but to no avail. Plaintiff then filed suit for issuance of mandatory injunction, directing the defendants-appellants to vacate the land and the house of the plaintiff, alleging that the defendants- appellants were only licencees. 4. Defendants-appellants contested the suit. They raised a number of preliminary objections. On merits, it was stated that the plaintiff had only two daughters and he had divided the land between them in the year 1975 and that ever since the defendants- appellants were in possession of 19 bighas 15 biswas land, out of the total land of Sarnu Ram and they had expended a huge amount of money in raising two shops and planting an orchard on the land. 5. Trial Court came to the conclusion that defendants-appellants had been put in possession of 19 bighas 15 biswas land, out of the total land of the plaintiff, by way of family arrangement/settlement and in any case defendants-appellants were licencees and the licence was irrevocable. With these findings, learned trial Court dismissed the suit. …5… 6. Plaintiff-respondent carried appeal to the Court of District Judge. Learned District Judge held that there was no family settlement or arrangement and that plea that it was a case of an irrevocable licence, having not been raised by the defendants, trial Court was not justified in making out such a case in their favour. Consequently, the appeal was allowed and the suit of the plaintiff- respondent was decreed and a decree of mandatory injunction, as prayed for, was passed. 7. I have heard the learned counsel for the parties, examined the record and reappraised the entire evidence. 8. Submission made on behalf of the defendants- appellants is with respect to the finding of the first Appellate Court that this was not a case of irrevocable licence as no such plea had been raised. Another submission made by the learned counsel for the defendants-appellants is that the plaintiff is estopped by his conduct and acts to sue for mandatory injunction. 9. It is true that the defendants-appellants did not specifically aver in their written statement that they were licencees and the licence was irrevocable, but they did plead the necessary ingredients of Section 60 of the Easements Act, 1982, relating to irrevocability of licence. They specifically pleaded that on being asked by the …6… plaintiff, they shifted to his place in village Shivan and raised an orchard on the land and also constructed shops by spending a sum of Rs.1,00,000/-, approximately. Plaintiff himself stated in para-7 of the plaint that the defendants-appellants were licencees. An issue was framed on this plea of the plaintiff and onus was placed on him. 10. In view of the abovestated position, learned first Appellate Court was not right in concluding that the defendants-appellants did not raise the plea that irrevocable licence had been created in their favour by the plaintiff. 11. Coming to the evidence regarding the aforesaid aspect of the matter, Sena Patoo, the second daughter of the plaintiff, whom the plaintiff examined as PW-2, very categorically stated that the plaintiff asked both his sons- in-law and the daughters to cultivate the land and to raise orchard thereon and that on his (plaintiff’s) death, they would automatically become owners of the land and the orchard. Not only this, she further stated that the plaintiff divided the land between his two daughters, equally, and that thereafter an orchard was raised on the suit land by all of them, including the defendants-appellants. This testimony of Sena Patoo, a witness of the plaintiff, clearly …7… establishes that there was an irrevocable licence in favour of the defendants-appellants. 12. Learned counsel for the plaintiff-respondent urges that a licence is a personal privilege given to the licencee and that this privilege can be withdrawn by the licencor any time. In support of this contention, he places reliance upon Chandavarkar Sita Ratna Rao versus Ashalata S. Guram, (1986) 4 SCC 447. There cannot be any dispute with the statement of law to this effect, but in a case covered by Section 60 of the Easements Act, 1982, where a licence is accompanied by transfer of property or the licencee, acting upon the licence, executes a work of permanent character and incurs expenses in the execution, such a licence cannot be revoked at the will of the licencor. Such a licence is irrevocable. 13. It has also been argued by the learned counsel for the plaintiff-respondent that plea of irrevocability of licence having not been raised by the defendants- appellants, they cannot be allowed to put forward such a plea. As already noticed, defendants-appellants, though did not use the words that “the licence created in their favour was irrevocable”, they did state the necessary ingredients of an irrevocable licence in their written statement. …8… 14. As regards the plea of estoppel, submissions made by the learned counsel for the defendants-appellants are similar to the plea of irrevocability of licence. Therefore, this aspect of the matter is covered by the discussion already made hereinabove. 15. In view of the above discussion, substantial questions of law No.1, 2, 3, 5, 6, 7 and 8 are answered against the defendants-appellants. However, substantial question of law No.4 is answered in their favour. Consequently the appeal is accepted, impugned judgment and decree of the first Appellate Court, i.e. District Judge, are set aside and those of the trial Court restored. Appeal stands disposed of accordingly. June 16, 2010(sd) ( Surjit Singh ), J