IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 100/1998 Reserved on: 3.9.2009 Decided on:17.9. 2009 Mansho and another. …Appellants. Versus Sanehro Devi and another …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the Appellants : Mr. K.S. Kanwar, Advocate For the Respondents : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 21.11.1997 passed by the learned Additional District Judge, Sirmaur District at Nahan in civil appeal No. 20-N/13 of 1995/93. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for possession in respect of the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 land comprised in Khasra No. 195 measuring 0-7 bighas situated in village Shalana, Tehsil Rajgarh, District Sirmaur, Himachal Pradesh on the averment that the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) took the forcible possession of the land in suit with the help of villagers and started construction thereof in the month of July, 1989. The suit was contested by the defendants. It is denied by the defendants that they took forcible possession of the suit land in the month of July, 1989. According to them, the house was constructed by their father about 50 years back. The learned Sub Judge passed a decree for recovery of possession by way of demolition of structure over the land comprised in khasra No.195 min measuring 0-2 biswas. The defendants preferred an appeal before the learned Additional District Judge, Sirmaur against the judgment and decree passed by the learned trial court on 22.5.1993. The learned Additional District Judge accepted the appeal and the judgment and decree dated 22.5.1993 was set aside. This Regular Second Appeal has been filed by the plaintiffs against the judgment and decree dated 21.11.1997. It will be pertinent to mention here that though the Regular Second Appeal was admitted on 21.4.1998, however, the attention of the Court was not drawn at that stage to the substantial questions annexed with the memorandum of appeal. In these circumstances, the appeal shall be deemed to have been admitted on the following substantial questions of law annexed with the memorandum of appeal: 1. Whether defendants are entitled to take protection of section 60 of the Indian Easements Act, 1882 in support of their plea that their father under irrevocable licence constructed the house? 3 2. Whether learned 1st appellate court has wrongly, illegally allowed additional evidence and amendment of the written statement to incorporate the plea of irrevocable licence at the stage of the appeal? 3. Whether learned 1st appellate court has misconstrued, misinterpreted the pleadings and material on record and the view taken by him is not possible on the basis of material on record? Mr. K.S. Kanwar, Advocate has vehemently argued that the judgment and decree passed by the learned 1st appellate court is not sustainable. He has strenuously argued that the learned Additional District Judge has not properly construed the oral as well as documentary evidence. Mr. Bhupender Gupta, Senior Advocate has supported the judgment and decree passed by the learned Additional District Judge. I have heard the learned counsel for the parties and have perused the record carefully. Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The plaintiff, Mansho Ram, has appeared as PW-1. He has deposed that the suit land is comprised in Khasra No. 195 measuring 0-7 bighas and three years back, the defendants started raising construction over 2 biswas of land. They were prevented from doing so. However, they insisted to raise the construction. The land was got demarcated and he was found the owner. PW-2 is Sh. Surjan Singh, Field Kanungo. He has visited the spot and has proved the report Ex.PW-2/A. PW-3 is Sh. Kundan Singh Patwari, who accompanied the Kanungo to the spot and prepared tatima Ex.PW-3/A. PW-4 Chet Ram has deposed that the 4 plaintiffs are in possession of the suit land but the defendants forcibly occupied the portion of the suit land by raising construction. Mohinder Singh alias Mohinder has appeared as DW-1. He has deposed that the house over 2 biswas of land has been built for the last 50 years. According to him, Sh. Ramji Dass was the original owner of the suit land and his father was the tenant. In jamabandi for the year 1986-87 Ex.P-1, copy of Khasra Girdawari Ex.P-2 and copy of jamabandi for the year 1958-59 Ex.PX, the plaintiffs are recorded as owners in possession of the suit land. In Ex.PX, the plaintiffs are shown to be tenants under Ramji Dass. However, a bare perusal of Ex.DW-1/A i.e. jamabandi for the year 1950-51 reveals that Chhangoo Ram, father of the defendants is recorded as tenant under Ramji Dass. This entry is prior in time. The plaintiffs have not explained how this entry was changed in the subsequent jamabandis. PW-1 Mansho Ram has admitted that earlier the suit land was owned by Ramji Dass. He has also admitted that when the defendants started raising the construction, he did not report the matter either to the police or the Panchayat. PW-4 Chet Ram does not belong to the same village. His village is at a distance of 4 to 5 kilometers. The defendants had moved an application for leading additional evidence. It was allowed by the learned first appellate court and additional issue 1-a was framed. The defendants have examined four AWs. AW-1 is Sh. Ganga Ram. He has deposed that he had been working as a Clerk in the Electricity Board since 1968. He has proved the certificate Ex.A-1 after comparing it with the original. This document shows that the electricity connection was released to the house of DW-1 on 18.6.1964. AW-2 Jalam Singh is Meter Reader in I&PH Sub Division, Rajgarh. He has deposed that he had been 5 visiting the premises where the water meter is installed. AW-3 Mohan Singh is a Surveyor in I&PH, Sub Division, Rajgarh. He has deposed on oath that he has visited the premises in question and prepared the site plan Ex.A-3 and according to him the structure is 50 to 60 years old. AW-4 is Ajit Singh Brar. He is a retired Assistant Engineer from the Forest Department. He is also a witness of the site plan Ex.A-3. According to him, the cost of the house was Rs. 64,000/- approximately and the age of the structure was 50 to 60 years. These witnesses are official witnesses. They have no grudge against the plaintiffs. The plaintiffs have also examined RW-1. His statement has rightly been discarded by the learned Additional District Judge. What emerges from the oral as well as documentary evidence discussed hereinabove is that the suit land was under the tenancy of Sh. Chhangoo Ram father of the defendants. He was tenant under Ramji Dass. It has been conclusively proved on the basis of the statement of AWs that the electricity connection was released in the year 1964 and water connection was released in the year 1984. The plaintiffs have not placed on record any tangible evidence to suggest even remotely that when the defendants started raising alleged construction they had approached the police authorities or any other authority, including revenue authority. Mr. K.S. Kanwar, Advocate has also argued on the question of licence. It is settled law that the licence may be express or implied. The licence can be revoked under section 60 of the Indian Easements Act by the grantor, unless; (a) it is coupled with a transfer of property and such transfer is in force; and (b) the licencee acting upon the licence has 6 executed a work of permanent character and incurred expenses in the execution. The defendants have raised the construction of a house which is permanent in character as per the site plan duly proved by AW-3 and supported by AW-4. Sh. Ramji Dass, or Smt. Kaula, his wife had not raised any objection. In these circumstances, the licence has become irrevocable. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed so also the pending applications. There will, however, be no order as to costs. 17.9. 2009 (Rajiv Sharma ), J. *awasthi*