IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 SA.No. 638 of 1999(A) --------------------- AS.258/1996 of SUB COURT, KASARAGOD OS.434/1994 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S): -------------- T.ISHWARA BHAT, S/O.KRISHNA BHAT, RESIDING AT TALENGALA, BAYAR VILLAGE, KASARGOD TALUK, P.O.BAYAR. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S): --------------- T.SUBBANNA BHAT, S/O.RAMA BHAT, RESIDING AT TELENGALA, BAYAR VILLAGE, KASARAGOD. ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING: HARUN -UL- RASHID, J --------------------------------- S.A.NO.638 OF 1999 -------------------------------- Dated this the 14th day of July, 2010. JUDGMENT The defendant in O.S.No.434/1994 on the file of the Munsiff's Court, Kasargod is the appellant. The appeal is directed against the judgment and decree in A.S.258/1996 of the Sub Court, Kasargod. The suit was filed by the respondent/plaintiff for a decree of mandatory injunction directing the appellant/defendant to remove irrigation water pipes C, C2 and C3 shown in the plaint eye sketch. The parties hereinafter referred to as the plaintiff and the defendant as arrayed in the suit. 2. The case of the plaintiff is that he had permitted the defendant to take pipe lines through his property for the purpose of taking water to the properties of the defendant. Permission was granted orally for taking three sets of pipe lines on 1.3.1991 and 1.5.1994 respectively. According to the plaintiff the permission was granted on a temporary basis and the pipes have to be removed from the property of the plaintiff S.A.NO.638 OF 1999 2 whenever the plaintiff wanted to remove the same. Though he has repeatedly requested the defendant to remove the water pipes laid through his properties, the defendant failed to accede to the request. Therefore, the suit was filed for mandatory injunction for removing the pipe lines laid through the properties of the plaintiff. 3. The defendant filed a detailed written statement denying the averments in the plaint and prayed for dismissal of the suit. It is contended inter alia that water from the tank in the properties of the defendant is led through pipe line laid through the properties of the plaintiff, that the defendant acting on the licence granted by the plaintiff, laid pipe through the property of the plaintiff and that the laying of pipe has been made more than 20 years ago. It is also contended that (acting on the licence) the defendant had incurred expenses and the construction work is of permanent character. A reservoir was constructed in the property of the defendant to store water and that he has done works of permanent character in his property for the irrigation purpose and therefore, licence granted by the plaintiff is not revocable. S.A.NO.638 OF 1999 3 4. Ext.A1 is a eye sketch. Ext.A1 shows the property of plaintiff as well as the defendant . Ext.A1 also shows the position of pump set installed by the defendant in his property, the tanks in which water is stored and the pipe lines running through the property of the plaintiff. It is not disputed by the plaintiff that the defendant had taken pipe lines through the properties of the plaintiff for the purpose of drawing water to his different property shown in Ext.A1. The case of the defendant is that plaintiff granted permission for taking pipe lines through three sets of properties. Permission was granted for taking 2 sets of pipe lines on 1.3.1991 and for the third set on 1.5.1994. It is the plaintiff's case that the permission was purely temporary in nature and pipes were to be removed by the defendant whenever the plaintiff wanted to remove the same. The defendant on the other hand contended that the plaintiff granted licence to lay pipe through his property through Resurvey No.451/3A, R.S.No.449/1B more than 20 years ago and through R.S.No.445/1 17 years ago. His case is that, he acted on the licence and incurred expenses and the construction work is of a permanent character, the plaintiff is not entitled to any relief S.A.NO.638 OF 1999 4 sought for in the plaint. 5. It is pointed out by the counsel for the respondent/plaintiff that he got the property only in the year 1981 by virtue of Ext.A4 Gift deed and therefore, the contention of the defendant that the licence was granted more than 20 years ago, is incorrect. The trial court as well the lower appellate court held that plaintiff got the property only in the year 1981 and therefore, there is no possibility of the defendant laying the pipe line before 1981. 6. Admittedly, the right exercised by the defendant is one based on licence. The licence unless comes under Section 60(b) of the Easement Act is revocable as and when the plaintiff chooses to do so. It is not disputed by the plaintiff that the defendant is irrigating his garden using the water coming through the said pipe lines. The plaintiff submitted that laying of pipes in the property of the plaintiff is not work of a permanent character. So Section 60(b) of the Easement Act is not attracted. A licence is a permission granted to do some work on the property of the grantor. Therefore, installing pump set, erecting pump shed, constructing water tank in the property of the defendant is not S.A.NO.638 OF 1999 5 work of a permanent character in the property of the plaintiff therefore, it will not come under the term licence. The lower appellate court has rightly held that the works done by the defendant are works of a permanent character done by him in his own property, therefore, it will not come under the term licence under Section 60(b) of the Act. The lower appellate court also rightly held that the burden of pleading and proving that the licence is one that comes under Section 60(b) of the Easement Act is on the licensee. The lower appellate court referred to the decision reported in AIR 1985 NOC 159 F Kerala. 7. The learned counsel for the respondent/plaintiff brought to this court attention the decision reported in AIR 1975 Patna 17 where in it is held that a person will be acting upon the licence within Section 60(b) of the Easement Act only when he executes a work of a permanent character upon the land of the licensor and not when he executes a work of a permanent character on his own land. The Patna High Court also held that where one was constructing a building on his own land, another allowed his land to be used a passage for the limited purpose of carrying bricks and other materials to the construction site, the licence granted S.A.NO.638 OF 1999 6 deemed to have been revoked with the completion of the work of construction. Lower appellate court also referred to decision reported in AIR 1980 Gujarat 41, 1988 (2) KLT 345 and held that Section 60(b) is applicable only when the work is of permanent character and work is done in the property of the guarantor himself. 8. The counsel for the appellant contended that the plaintiff has acquiesced to the act of laying of pipe line through his property and therefore, he is estopped from removing the pipe line. Since the licence is pure and simple, there is no question of the plaintiff acquiesced to the laying of the pipe line through the property. It can only be the term permission granted to the defendant and therefore, the question of acquiescence does not arises. 9. The trial court appreciated the facts and circumstances in a different manner and found that the licence is of a permanent character. The finding that licence is a permanent character was arrived at by the trial court run counter to the facts, evidence and circumstances. The finding that the licence comes under Section 60(b) of the Easement Act and is irrevocable is without any basis. S.A.NO.638 OF 1999 7 The trial court also referred to the amounts spent by the defendant for raising paddy field, installing the spinkler system etc. to arrive at a finding that the licence is irrevocable in nature. The approach of the trial court and the interpretation given to Section 60(b) of the Act is unsustainable in law. In such circumstances, the findings and conclusions arrived at by the lower appellate court is upheld. The plaintiff in the suit is not entitled to a decree for mandatory injunction as prayed for. In the result, the appeal fails and accordingly, it is dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. pm The word “not” occurring after the word “is” in line 7 and before the word “entitled” in line 8 (paragraph 9) in page 7 of the judgment dated 14/07/2010 is deleted, as per order dated 07/09/2010 in I.A.2185/2010. Sd/- Registrar (Judicial)