1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.773 OF 2009. Lala Sampat Wadile Deceased through his legal heirs : Laxman Lala Wadile and others ... Appellants. Versus Hasrat Dhondu More and others ... Respondents. ... Mr.S.P.Brahme, advocate for the appellants. Mr.Mukul Kulkarni, advocate for the Respondent Nos.1, 2B to 2F. ... CORAM : V.R.KINGAONKAR,J. Date : 01.12.2009. PER COURT 1. Heard learned counsel. The appeal is by original plaintiff. He sought recovery of possession in respect of house property to the extent of 1/4th divided share as described in the 2 claim clause. He asserted that during partition amongst the brothers, he received 1/4th share out of the suit house bearing No.3634/9 situated in lane No.1, Moglai, Krushnanagar, Dhule. According to him, the house property was previously owned by his father. He alleged that the suit house was given to the defendants for their residence as licensees. They refused to restore his possession and, therefore, the license was revoked. 2. The Respondents (defendants) resisted the suit on the ground that the plaintiff was not owner of the suit property. They contended that the plaintiff has alienated the house property which had fallen to his share. They submitted further that they were in long standing possession since the time of their forefathers. They contended further that they have acquired prescriptive title due to hostile possession and the suit was barred by limitation. 3. Both the Courts below held that the plaintiff was unable to prove his ownership in 3 respect of the suit house on the basis of internal partition. The suit was not maintainable in its form as presented. 4. The trial Court and the first appellate Court considered oral and documentary evidence of the parties. It appears that the appellant gave some fatal admissions during the cross- examination. He admitted that his father father by name Sampat died in 1948. He further admitted that the house property was not partitioned during life time of his grand father. He further admitted that the house property was given to the defendant Nos.1 and 2 for their residence, during life time of his grand father. He admitted further that he was not in possession of any document regarding so called permissive user of the defendants. He was not born when they started residing in the house property. He admitted that he has no knowledge on what basis the defendants were residing in the house property. He further admitted that the house property was demanded immediately after death of his grand father and the defendants had refused 4 to restore the possession. In other words, they had refused to deliver possession to the father of the plaintiff somewhere in 1948-49. The suit was filed in the year 1990. Obviously, since 1949 onwards the defendants possession was hostile to the knowledge of the plaintiff and his father. Though the defendants could not establish their title, yet, it is amply proved that the original defendant Nos.1 and 2 got constructed the house property during life time of the grand father of the plaintiff. No one had objected at that time. Thus, the grand father of the plaintiff had acquiesced the rights claimed by the defendant Nos.1 and 2 and his father and uncle also did not object obstruction of the house property by the defendants. In this view of the matter, even assuming that the open plot was given to the defendant Nos.1 and 2 as licensees then also in view of Section 60(b) of the Indian Easement Act, they can not be evicted on account of permanent structure raised by them. Section 60(b) reads as follows : "60. License when revocable .- A 5 license may be revoked by the grantor, unless - (a) x x x x (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution." It is further admitted by the appellant (plaintiff) that he has sold away part of his house property to one Dhana Tarachand. So it is difficult to infer that his title to the suit property was proved and that the license could be revoked. Considering these aspects, the Second Appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa77309