1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 244 OF 1988 with SECOND APPEAL NO. 245 OF 1988 SECOND APPEAL NO. 244 OF 1988 1. Shri Dattu Rama Jadhav (since deceased through his heirs and legal representatives) 1A. Shri Balu Dattu Jadhav, Age adult. 1B. Shri Sukhadeo Dattu Jadhav, age adult. 1C. Smt. Anusuya Appaji Sashde, age adult. 1D. Smt. Sulochna Pundalik Kadakarne, age adult. 1E. Smt. Gangubai Dattu Jadhav, age adult. (R-1E stands dismissed as per order dt.12.3.08). All resiig at Udgaon tal. Shirol, Dist. Sangli. ...Appellants Versus 1. Dhondiba Annappa Kamble 2. Keraba Annappa Kamble. ...Respondents WITH SECOND APPEAL NO. 245 OF 1988 Shri Vishnu Rama Jadhav Since deceased through Legal Heirs : 2 1A) Jaykumar Vishnu Jadhav age 46 years, Occu: Agricultural, Mukam Post Udgaon, Tal-Shirol, Dist. Kolhapur. 1B) Kanchan Sadashiv Arekar age 48 years, Occu: Housewife, R/at Mukam Post Shiradwad, Tal. Shirol, Dist. Kolhapur. 1C) Bharati Ananda Manglekar age 44 years, Occu: Housewife, R/o. Mukam Post Udgaon, Tal. Shirol, Dist. Kolhapur. 1D) Smt. Housabai Vishnu Jadhav age 75 years, Occu: Housewife, R/at Mukam Post Udgaon, Tal.Shirol, Dist. Kolhapur. ..Appellants Vs. 1. Dhondiba Annappa Kamble 2. Keraba Annappa Kamble, Both Adults, both residing at Udgaon, Tal. Shirol, Dist.Sangli. Respondents. Mr. Vijay Killedar, Advocate for the appellants. Mr. Pradeep Dalvi, Advocate for respondent Nos. 1 & 2. CORAM: J.H.BHATIA,J. DATE : 7th August, 2009. JUDGMENT: 1. These Appeals arise out of the common judgment. The respondents 3 in these Appeals are the original plaintiffs. The suit properties are City Survey No.819 and 820 situated within limits of Grampanchayat Udgaon.. According to the plaintiffs, this is their ancestral property and since 1916 when the first record was prepared, this property was recorded in the name of their father Annappa Kambale. After death of their father, the plaintiffs are owners of the property. According to them, the defendants in both suits, who are brothers inter-se, had no place to tether their cattle. They were allowed to tether their cattle in the suit property about 8 to 9 years prior to filing of the suits. According to them, in 1973, City Survey of the village was conducted, but no notice of the same was given to the plaintiffs and in their absence, the defendants were shown to be in possession on the basis of an agreement for sale which was totally false. It is contended that the defendants might have produced some false documents before the City Survey Officer to get their names recorded. It is contended that this fact had come to their notice shortly before filing the suits. According to them, initially for 3-4 years, the defendants used to tether the cattle and thereafter they had constructed sheds. The plaintiffs required the land for construction of their new house and therefore, they issued notice to the defendants on 10.5.1982. The defendants gave reply which was false. Hence, the plaintiffs filed Regular Civil Suit No.116 of 1982 against Vishnu .and Regular Civil Suit No.117 of 1982 against Dattu Rama Jadhav. In both the suits, they claimed possession of the 4 open land after removal of the sheds constructed by the defendants. They also claimed mesne profits. 3. The defendants in both the suits contested the same by filing written statement. According to them, in 1964 father of the plaintiffs had agreed to sell the suit land to the defendants for consideration of Rs.400/- and he had taken the amount in cash and had entered into a written agreement. On that basis they are in possession of the land. That document has been lost and it was contended that even if the agreement for sale is not true, they are in possession of the land as licensee of the father of the plaintiffs and acting on that license they had constructed the sheds of the permanent nature and had spent money for the same. Therefore, the suits are liable to be dismissed in view of the provisions of Section 60 of the Easement Act. In the alternative, they also contended that they are in possession of the suit property for more than 12 years and thus they have perfected their title by adverse possession. 4. On behalf of the plaintiff no.2 – Keraba was examined as P.W.1 and a neighbour Bapu Ganpati Jadhav PW.2 was also examined. On behalf of the defendants, defendant Vishnu as D.W.1 and DW-2 Ramu L. Shinde, who is also a neighbour, were examined. The trial Court held that the plaintiffs are 5 owners of the land. The agreement for sale was not proved. However, it was held that the defendants were in possession of the land on the basis of license granted by the father of the plaintiffs and acting on that license, the defendants had made construction of permanent nature and for that purpose they had spent the money. The trial court also held that in the alternative, the defendants had proved that they had perfected the title by adverse possession for more than 12 years. In the result, both the suits came to be dismissed. Therefore, the plaintiffs preferred Regular Civil Appeal Nos.182 of 1984 and 183 of 1984. Both these appeals were disposed of by the common judgment by the appellate Court. The appellate Court held that the defendants had failed to prove that they had made permanent nature on the suit property and that the license is irrevocable. According to the appellate Court, as the defendants are licensees, the question of adverse possession does not survive. In view of these findings, both the appeals came to be allowed and the suits were decreed. Hence, these Second Appeals by the original defendants. 5. The Appeals were admitted on the following grounds :- “3. The Lower Appellate Court erred in holding that the question of acquiring title over the suit property by adverse possession, does 6 not arise in view of the fact that the Appellant has admitted that he was gratuitous licensee. 5. The Appellate Court ought to have seen and considered that the Appellant has made permanent structure/construction in the suit property and hence his licence has become irrevocable in view of the provisions of Section 60 of the Easements Act. The Appellate Court erred n holding that the provisions of Section 60 of Easement Act are not attracted in the given case. 6. The Appellate Court erred in holding that the structure which is, admittedly in existence on the suit property is not of permanent nature, particularly in view of the fact that the Cattle shed was constructed with pillers and tiles and three sides of which are covered with bricks. The Appellate Court ought to have seen that the shed admeasures 25’x15’ constructed with bricks and covered with tiles and which is there since 1964. In view of this fact, it is not correct to hold that the provisions of Sec.60 of easements Act are not attracted.” 7 6. Heard the learned Counsel for the parties. Perused the evidence led by both the parties as well as the judgments rendered by the Courts below. 7. Admittedly, both the defendants Vishnu and Dattu were the gratuitous licensees and were allowed to tether their cattle. Whether the licence was granted to them by the plaintiffs or by their father is irrelevant. Even though the defendants claimed that they had an agreement with the father of the plaintiffs whereby father of the plaintiffs had received an amount of Rs.400/- and had agreed to sell the land to them on which they constructed the shed, there is no documentary evidence to support this contention. Vishnu, in his cross- examination, admitted that he had shown some document purporting to be agreement for sale before the City Survey Officer at the time of city survey and accordingly, name of defendants was shown as occupants in City Survey Record on the basis of that agreement. However, no such document was produced before the Court. He also admitted that as per the agreement, sale deed was not executed nor the price was paid. It clearly indicates that they had made a false statement on the basis of some document and got their names entered in the City Survey Record. This fact was not known to the plaintiffs because, according to them, they were not served with the notice at the time of City Survey. The City 8 survey had taken place sometime in 1972-73 when the names of the defendants were recorded as possessers on the basis of the agreement. Even that entry would not show adverse possession of the defendants over the property and admittedly, prior to the said entry, the defendants had never claimed possession over the property adverse to the title of the plaintiffs. It is the well-settled position of law that a person who enters into a property as a licensee cannot challenge the title of the licensor and the license and adverse possession cannot go together. In view of the clear plea as well as evidence led by the defendants themselves, it is clear that they erected the sheds and began tethering their cattle only with the permission or license granted, maybe by the father of the plaintiffs or by the plaintiffs themselves as they contend. In view of this, I do not find any fault with the finding of the first appellate Court that the defendants could not claim to be in adverse possession of the property. 8. According to the defendants, they began to tether the cattle sometime in 1964 with permission of the father of the plaintiffs and they constructed the sheds used for the purpose of tethering cattle. According to PW-1 Keraba and PW-2 Bapu Jadhav who is living just near the suit property, the defendants got the permission from the plaintiffs about 8 to 10 years prior to the recording of evidence. According to them, the defendants had constructed 9 the shed on which they must have spent Rs.300/- to Rs.400/- only. In the cross- examination, it was suggested to Keraba that they had spent Rs.7000/- to Rs. 8000/-, while in the cross-examination of PW-2 Bapu it was suggested that the expenditure was Rs.5,000/- to Rs.6,000/-. According to PW-2 Bapu, half of the construction was already ruined or dilapidated. In his evidence, PW-1 Vishnu deposed that he might have spent about Rs.3,000/- to construct the shed. He denied that it is in dilapidated condition. The evidence of DW-2 Ramu is material. In the cross-examination, he admitted that 20 years before. when the sheds were allegedly constructed, the price of bricks was Rs.150/- per 1000. According to him, about 3000 to 4000 bricks might have been utilized for the construction. Further, he admitted that the construction was made with pieces of bricks as well as the full bricks. He also admitted that there were no pillers used for construction of the shed. Though the defendants Vishnu deposed that the door was of the wooden frame, no such statement is made by DW-2 Ramu. P.W.1 Kerba deposed in the cross-examination that the door was made of Bamboo strips and this was not challenged. In the cross-examination, PW-1 Kerba and PW-2 Bapu, stated that the shed is prepared with bamboos and is covered with country tiles. There is nothing on record to show that the walls wee prepared with the help of lime or cement concrete. If the shed was erected with the help of some broken and some full bricks and covered with bamboos and country 10 tiles, having a door of bamboo strips, by no stretch of imagination it could be called a permanent structure. Taking into consideration the nature of construction and the cost of the bricks stated by the DW-2 Ramu, it is difficult to believe that the defendants had spent Rs.3,000/- to Rs.4,000/- or more for the purpose of construction. As per the evidence, half of the structure was already in a dilapidated condition. With this evidence on record, it cannot be accepted that the construction is of permanent nature. The appellate Court has rightly noted that under Section 60(b) of the Easements Act, the license becomes irrevocable only if the licensee acting upon the licence, has executed work of permanent character and has incurred expenses in that execution. Taking into consideration the material on record, it is impossible to come to conclusion that th defendants had executed work of permanent character. Therefor, the license granted to them to tether or even to raise a cattle shed cannot become an irrevocable license. Therefore, the plaintiffs, being the owners of the land and licensors are entitled to revoke the license at any time under Section 60 of the said Act. In the result, they can claim the possession back. Before filing the suit, they had issued the notice revoking the license and they had asked the defendants to hand over vacant possession. The suit was field only after the defendants refused and tried to take false pleas. 11 9. Taking into consideration the material on record, I do not find any fault with the impugned judgment passed by the first appellate Court. 10. In the result, both the Appeals stand dismissed. (J.H.BHATIA,J.)