IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 220 of 1998. Judgment reserved on : 1.4.2009 Date of decision : 2.4.2009. Chandan Kumar …Appellant. Versus Subh Karan & Anr. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the Appellant : Mr. K.C.Rana, Senior Advocate with Mr. R. Mandhotra, Advocate. For the Respondents : Mr. R.K.Sharma, Advocate. Kuldip Singh , Judge Smt. Kanta Devi, respondent -1, as per order dated 9.3.2009 had died and steps were not taken for bringing on record her legal representatives. The memo of parties would show that her two sons Subh Karan and Kultar Singh are already on record as respondents in the appeal. Therefore, estate of Smt. Kanta Devi deceased is represented by her sons Subh Karan and Kultar Singh in the above appeal and, therefore, the appeal has not abated, it survives. The name of Smt. Kanta Devi is ordered to be deleted from the array of the respondents. The Registry is directed to make necessary corrections in the memo of parties. In this judgment, Subh Karan and Kultar Singh are referred respondents No.1 & 2, respectively. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. 2. The appellant who was defendant in the suit has filed this appeal against judgment, decree dated 6.3.1998 passed by the learned Additional District Judge (II), Kangra at Dharamshala in Civil Appeal No. 13-N/XIII-1995 affirming judgment, decree dated 21.12.1994 passed by the learned Sub Judge (II), Nurpur in Civil Suit No. 66/1991. 3. The respondents 1, 2 and Smt. Kanta Devi had filed the suit for possession by demolition of construction on land comprised in khasra No. 1407, 1408, 1409 plots 3, measuring 0-09-85 HM (2 Kanals 12 Marlas) situated in Tikka and Mauza, Kehrian, Tehsil Jawali, District Kangra vide Misal Haquiat for the year 1984-85. The suit was filed on the basis of title on the ground that the appellant has no right, title or interest in the suit property. Tek Chand father of appellant had encroached a part of suit land in July, 1984 and raised construction thereon. The father of the appellant got his name recorded in the revenue record as ‘Davedar Beh’ on the suit land. There was no agreement to sell the suit land to Tek Chand. Rumal Singh predecessor of respondents requested appellant and Tek Chand during his life time to remove construction and hand over possession of suit land. After the death of Tek Chand, appellant was requested to remove construction from the suit land and hand over its possession but appellant ultimately refused to remove construction and hand over possession of suit land to respondents, therefore, the suit was filed. 4. The appellant contested the suit and took preliminary objections of maintainability, locus standi, estoppel, valuation and jurisdiction. On merits, it was submitted that Tek Chand father of the appellant had entered into an agreement with Rumal Singh predecessor of respondents for purchasing the suit land for a consideration of Rs.10,000/- in the year 1978 and for that reason the name of Tek Chand figured as ‘Davedar Beh’ from Rabi, 1979. Rumal Singh previous owner of the suit land never objected to the construction raised by Tek Chand father of the appellant on the suit land. Tek Chand and after his death, the appellant had always been ready and willing to perform his part of the contract but Rumal Singh and after his death, his successors were not ready to perform their part of the contract. The entry of ‘Davedar Beh’ is factually correct. In the alternative, the appellant took plea of adverse possession on the suit land. On the basis of the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners of the suit land, as alleged? ..OPP. 2. If issue No.1 is proved, whether the plaintiffs were dispossessed from the suit land by the defendant in July, 1984, as alleged ? ..OPD. 3. Whether the suit is not maintainable in the present form, as alleged? .OPD. 4. Whether the plaintiffs have no locus-standi to sue, as alleged? ..OPD. 5. Whether the plaintiffs are estopped by their act and conduct to file the present suit, as alleged? ..OPD. 6. Whether the defendant is in possession of the suit land on the basis of part performance of contract, as alleged? If so, its effect? ..OPD. 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged?..OPD. 8. Whether in the alternative, the defendant become owner of the suit land by way of adverse possession, as alleged? ..OPD. 9. Relief. The issues No. 1 and 2 were answered in affirmative and issues No. 3 to 8 in negative and the suit was decreed on 21.12.1994 by the learned trial Court. The appeal was dismissed by the learned Additional District Judge (II), Kangra at Dharamshala on 6.3.1998, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the appellant has become owner by adverse possession? 2. Whether in the facts and circumstances of the case, the respondents/plaintiffs are estopped from filing the suit? 3. Whether the alleged transaction / sale can be termed as irrevocable license in the facts and circumstances of the case? 5. Heard and perused the record. The substantial question of law No.1 is of adverse possession. The defence of the appellants is that Tek Chand father of appellant had entered into an agreement for purchasing the suit land with Rumal Singh in the year, 1978 for a consideration of Rs.10,000/-. In view of agreement, the name of father of appellant was recorded in the column of possession as ‘Davedar Beh’ from Rabi 1979. As per the case of the appellant, there was executory contract as against executed contract between Rumal Singh and Tek Chand. The appellant is claiming possession as of right on the suit land through his father Tek Chand. The very foundation of the appellant’s defence is agreement, hence possession of Tek Chand and appellant on the suit land on the basis of agreement cannot take the shape of adverse possession against Rumal Singh or respondents his successors. The agreement to purchase land does not create any right in the land, except to enforce the agreement through specific performance, no such suit was filed by appellant or Tek Chand on the basis of alleged agreement. In Achal Reddi Vs. Ramakrishna Reddiar and others, AIR 1990, S.C. 553, it has been held that a party cannot claim adverse possession on the basis of executory contract, hence substantial question of law No.1 is decided against the appellant. 6. The substantial question of law No.2 is of estoppel, issue No.5 is also of estoppel. In the trial Court, the appellant did not press issue No.5 which is clear from para 16 of the judgment dated 21.12.1994. In the grounds of appeal before the learned lower Appellate Court, it has not been stated that issue No.5 was actually pressed before the learned trial Court but in para 16 of the judgment dated 21.12.1994, the learned trial Court has erroneously observed that issue No.5 was not pressed. Once the appellant had not pressed issue of estoppel in the trial Court, in these circumstances, the appellant cannot be heard on the point of estoppel, hence substantial question of law No.2 is decided against the appellant. 7. The defence of the appellant is of agreement to sell the suit property or in the alternative for adverse possession. The appellant has not pleaded creation of license on the suit land by the respondents or their predecessor in favour of the appellant or his father Tek Chand. Section 60 of the Indian Easements Act, 1882, provides that a license may be revoked by the grantor, unless it is coupled with a transfer of property and such transfer is in force, the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. In order to invoke Section 60, the fundamental requirement is grant of license. The pleaded case of the appellant is that the suit land was agreed to be sold by Rumal Singh father of respondents to Tek Chand father of the appellant. The appellant has not pleaded grant of license of the suit land by Rumal Singh in favour of father of appellant or in favour of appellant. In these circumstances, there is no question of creation of irrevocable license in favour of appellant simply on the ground that Tek Chand had raised construction on the suit land. The case of the respondents is that Tek Chand after encroachment made unauthorized construction on suit land. There is no issue of irrevocable license. In second appeal, plea of irrevocable license cannot be allowed to be raised by the appellant when it was never set up in the court below. Hence, substantial question of law No.3 is decided against the appellant. 8. The two Courts below have recorded findings of facts in favour of the respondents. The learned counsel for the appellant has failed to make out a case for interference. There is no perversity in the impugned judgment, decree nor on any other acceptable legal principle a case is made out for reversal of the impugned judgment, decree. The appeal is liable to be dismissed. 9. No other point was urged. 10. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. April 2, 2009. (GR)