IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.516 of 2009 & 1333 of 2006 Between: Pulluri Ilesham. - - - Appellant. AND Masjid and Edgah Management Committee, Rep by its President Mohd. Vazeer Ahmed, Huzurabad, Karimnagar District. - - - Respondent. The Court made the following: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.516 of 2009 & 1333 of 2006 COMMON JUDGMENT: Both the appeals are preferred by the same appellant and the respondent is also the same. Since both the appeals are clubbed for disposal together, they are heard accordingly and are being disposed of by this common order. 2. S.A.No.516 of 1999 arises out of the suit O.S.No.646 of 1992 on the file of the District Munsiff, Huzurabad, filed by the appellant, seeking a declaration that the licence granted to him by the defendant on the suit-plot is irrevocable. The said suit was dismissed by the lower Court and the said decree was confirmed in Appeal A.S.No.1 of 1999 by the Senior Civil Judge, Huzurabad by the judgment and decree dated 26.2.1999. Questioning the said judgment and decrees, the appellant has filed S.A.No.516 of 1999. 3. During pendency of the said suit, it appears that the application for temporary injunction moved by the appellant in the suit went up in Civil Miscellaneous Appeal No.37 of 1972 before the District Judge, Kariminagar. While disposing of the said CMA and granting temporary injunction in favour of the appellant, the learned District Judge observed that it is open for the defendant to seek eviction of the appellant by due process of law. Accordingly, the respondent herein issued notice of termination of tenency, Ex.B1, and on failure of the appellant to vacate, he filed O.S.No.48 of 1996 before the Junior Civil Judge, Huzurabad seeking eviction of the appellant. The said suit has been decreed and the said decree has been confirmed by the lower Appellate Court by dismissing A.S.No.8 of 2002 on 23.1.2006. Questioning that decree, the appellant has filed S.A.No.1333 of 2006. Both the appeals were admitted by this Court, but there is no stay in operation in favour of the appellant. Admittedly, it is also recorded by this Court on 22.6.2007, while admitting S.A.No.1333 of 2006 that the appellant has been evicted from the shops in question and consequently, the petition in S.A.MP No.3078 of 2006 was dismissed. 4. Learned counsel for the respondent contended that subsequent to the eviction of the appellant, the respondents have taken up constructions on the entire land including the subject matter of the suits and in the newly constructed premises, third parties have been inducted as tenants. This was recorded herein in the proceedings dated 21.10.2010 and learned counsel for the appellant was granted time to get instructions. However, learned counsel for the appellant is unable to get instructions but states that the appellant has not evicted in pursuance of any orders of executing court. But however, the fact remains that new constructions have come up by the appellant. 5. Be that as it may, since the appeals have been argued on merits, I propose to dispose of both the appeals on merits itself. 6. The main contention of the learned counsel for the appellant is that the document marked as Ex.A8 in O.S.646 of 1992 is an irrevocable licence in favour of the appellant and in view of Section 60 of the Indian Easements Act, the appellant cannot be evicted as he has raised structures, and thereby, the licence became irrevocable. Learned counsel also contends that the Court below rightly came to the conclusion that the said document-Ex.A8, dated 1.1.1986, which is titled as lease–deed but not a licence-deed. He also submits that in the eviction suit, which is O.S.No.48 of 1996, the aforesaid document was not produced by the respondent and therefore, the courts below were not right in disposing of the appeal directing the eviction of the appellant. 7. The substantial question of law as framed in S.A.No.1333 of 2006 in ground No.10 of the memorandum of the appeal is as follows: (a) Whether the findings of the facts and law of the appellate court be set aside if they are based on misreading of evidence or based on no evidence? (b) Whether the perverse judgment and decree of the lower appellate Court are sustainable in the eye of law? (c) Whether the suit for eviction can be decreed in the absence of filing the suit document i.e., lease deed or agreement or license which is admittedly filed in other suit to which the appellant and respondents are the parties.? ” Similarly, in S.A.No.516 of 2006, the substantial question of law is framed as in ground No.11 of the memorandum of the appeal is as follows: (a) Whether the Appellate Court is justified in concurring with the erroneous judgment of the Trial Court having arrived at the conclusion that Ex.A8 is not a licence but a lessee, granted by the respondent in favour of the appellant herein? (b) Whether the Appellate Court is justified in coming to a conclusion that Ex.A8 is not a irrevocable licence?” 8. The finding of the lower Appellate Court in A.S.No.1 of 1999, which is the subject matter of S.A.No.516 of 1999 reads as follows; “The admitted case of the plaintiff is that initially he has given the premises for two-years only and it was extended from time to time, and in 1986 under Ext.A.8 also the period fixed was two years, and it was extended from time to time. It seems as the Edgah committee wanted to dispossess the plaintiff for not paying the rent, plaintiff came to the court with this suit, but claimed that his possession of suit plot is under an irrevocable licence, instead of filing the suit basing on his right as a lessee. But ultimately it was found that he is not a licencee, but a lessee. He also claimed permanent injunction stating that he is in possession of the suit property under an irrevocable licence. So, he is not entitled for any relief as prayed for in the suit.” 9. It would be evident there from that ignoring the manner in which the parties have described in Ex.A8 and assuming that Ex.A8 is a licence as contended by the appellant, the document itself records that the appellant agreeing to vacate the premises along with the building after expiry of two years period. This itself therefore would show that the lessee or for that matter licencee as claimed by the appellant, agreed to vacate the premises together with the structures. As such, it cannot be said that an irrevocable licence is granted to the appellant when he himself agrees to vacate the premises along with the building if any constructed. Consequently both the courts below have categorically found in O.S.No.646 of 1992 and A.S.No.1 of 1999 that Ex.A8 cannot be said to be a licence much less an irrevocable licence and the said document is only answer of description of a lease deed. The said finding is not shown to have been affected by any error and therefore, I am not inclined to take a different view in S.A.No.516 of 1999. Therefore, S.A.No.516 of 1999 is dismissed by answering substantial questions of law against the appellant. 10. So far as S.A.No.1333 of 2006 is concerned, admittedly, the lease as claimed was terminated under Ex.B1 and the Courts below have found that the said termination is in accordance with the provisions of Section 106 of the Transfer of Property Act and the lease admittedly was not governed under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The Courts below also found that the appellant failed to establish the licence; much less an irrevocable licence and consequently there being hardly any defence to reject the suit for eviction filed by the respondent- landlord. Against the appeal, questioning the decree passed in favour of the respondent, the lower appellate Court also held that even assuming that under Section 60 of the Indian Easements Act applies, the structures raised by the appellant were only in the nature of temporary and it cannot be said to be a permanent structure even on facts. Therefore, the decree of eviction was sustainable. 11. The only contention of the appellant that the courts below could not have decreed the suit for eviction in the absence of Ex.A8 marked in the other suit being produced in this suit. It is, however, be noted that execution of the said document was not in dispute and the appellant himself admits that he entered into the suit premises on the basis of Ex.B3 marked in A.S.No.646 of 1992. Since the document was being not in controversy and the controversy only centered round as to whether it was a lease deed or a licence, the same was adjudicated and answered against the appellant. I do not find any error or perversity in the findings of the courts below, and as such, the substantial questions of law raised in S.A.No.1333 of 2006 are also answered against the appellant. Hence this appeal is also dismissed. 12. Both these appeals are accordingly dismissed. However, there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Date:11.11.2010. mrb