1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.435 OF 2010 Anubai Dnyanu Warekar, since deceased, through L.Rs. Housabai S.Patil & Ors. .. Appellants V/s. Shripati Laxman Warape, since deceased through L.Rs. Smt.Sushilabai Shripati Warape & Ors. .. Respondents Mr.S.S.Patwardhan for the Appellants. Mr.Rahul P. Walvekar for Respondent Nos.1a to 1g. CORAM: R.G.KETKAR, J. DATE: 26TH JULY, 2010 P.C.: 1. Heard learned counsel for the parties. This appeal is preferred by the Appellants­original Defendants challenging the judgment and decree dated 25th February, 2010 passed by the learned district Judge­2, Kolhapur in Regular Civil Suit No.395 of 2004. By that judgment, the learned District Judge allowed the appeal preferred by the Respondents­original plaintiffs and directed the appellants­original Defendants to hand over vacant possession of the suit property within three months from the date of the order. The parties will hereinafter be referred to as per their original status in the trial Court. 2. The plaintiffs instituted suit for recovery of possession of house and the open space admeasuring 95.04 sq.mtrs.bearing C.T.S.No.559 situate at Panhala, hereinafter referred to as the suit property. It is their case that one Sakharam Santu Powar was the original owner of the suit property. He had only one daughter Hausabai. The original Plaintiff­ Shripati was the husband of said Hausabai. After the death of original owner Sakharam, Hausabai became owner of the suit property. On account of service of the original plaintiff Shripati, he was required to stay at Bangalore and other places, and one Shivram Santu Patil was 2 looking after the suit property. Since he had no place of residence and being close relative, he was permitted to use the suit property for his residence with a view to maintaining the same. Thus, it was their specific case that Shivram was a gratuitous licensee of the suit property. Shivram was a handicapped person and was unmarried. Anubai­Defendant No.1 was residing with him during his old age for taking care. Shivram & Anubai are not related to each other. Since the Defendant No.1­Anubai had no other place for residence, she requested the plaintiffs to allow her to stay in the suit property without charging any amount. It is the case of the plaintiffs that Defendant Nos.1 and 2 had agreed to vacate the suit property on demand made by them. However, after few days, Defendant No.1­Anubai made an application to the City Survey Office Panhala on 16th December, 1982 claiming that the suit property was owned by her father Shivram, who had bequeathed the suit property in her favour by registered Will and she therefore requested for entering her name to the suit property. The plaintiff also made reference to the earlier suit being Regular Civil Suit No.108/33 wherein Shivram filed written statement and admitted that he was just looking after the suit property. 3. The Defendants filed written statement and contended that Shivram was exclusive owner of suit property. On 20th September, 1954 he executed a Will in favour of Defendant No.1. After his death, she became absolute owner of the suit property. Alternatively, it was contended that the Defendants are in possession of the suit property, openly to the knowledge of the plaintiffs since 1941 and thus the Defendant No.1 became the owner by adverse possession. Being absolute owner of the suit property, she obtained permission from Panhala Municipal Council for construction of the house and after obtaining the permission in the year 1966 she constructed new house and incurred expenditure of Rs.12,000/­. 4. On the basis of rival contentions, learned trial Judge framed necessary issues and parties led oral as well as documentary evidence on record. Learned trial Judge framed as many as 10 issues. All the issues were 3 answered in favour of the plaintiffs, save and except Issue Nos.8, 9 and 10. While answering Issue No.8, learned Trial Judge held that the Defendants are entitled to take benefit u/s.60(b) of the Indian Easements Act, 1882 and consequently, held that the plaintiffs are not entitled to possession. He accordingly dismissed the suit. Against that decision, plaintiffs went in appeal. By the impugned judgment and decree, learned District Judge allowed the appeal. It is against this decision, the present second appeal is preferred. 5. Learned counsel for the Appellants­Defendants submitted that the learned District Judge committed error in holding that the Defendants have not carried out any construction and simply renovated the existing old structure. He submitted that the Defendants are entitled to take benefit of sectin 60(b) of the Indian Easements Act, 1882 and consequently, decree passed by the learned District Judge directing them to hand over possession is unsustainable. On the other hand learned counsel for the Respondents­original plaintiffs supported the impugned judgment and decree. 6. With the assistance of the learned counsel for the parties, I have gone through the pleadings as well as evidence on record. Perusal of the written statement filed by the Defendants clearly shows that the Defendants did not set up the plea of irrevocable licence, as also the benefit arising thereunder. Their specific case was that Defendant No.1 became absolute owner on the basis of Will dated 20th September, 1954 executed by the owner Shivram and in the alternate, they became owner by adverse possession. It is undoubtedly true that in the written statement they pleaded about carrying out construction and incurring expenditure for the same, after obtaining permission from the Panhala Municipal Council. However, what is relevant to note is that no specific case of irrevocable licence was pleaded. Perusal of the evidence of the defendants also shows that in the evidence no attempt was made to establish the case of irrevocable licence. 7. Learned District Judge, relying upon the judgment of this Court in the case of Ramesh V/s.Pandurangrao, 2006 (4), Mh.L.J.83 held that the 4 principles laid down in the case of Ramesh (supra) are not applicable. In that case, it was observed that the licence is irrevocable only if three conditions are fulfilled; (1) Licensee executed the work of permanent character, (2) He did so acting upon the licence, and (3) He incurred expenses on doing so and onus of pleadings and proving these facts is always on the defendants. 8. As set out earlier, in the instant case the Defendants neither pleaded the case of irrevocable licence nor proved it. In these circumstances, it cannot be said that the learned District Judge committed any error. Second Appeal therefore does not involve any substantial question of law. Hence, appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. (R.G.KETKAR, J.)