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2006 Supreme(Bom) 93

Bombay High Court
(J. H. Bhatia, J.)
RAMESH s/o RAGHUNATH and others - Appellants.
V.
PANDURANGRAO RATNALIKAR and others - Respondents.
Advocates Appeared
In S. A. Nos. 2, 3, 684, 685 of 2003 :
For appellants: Mrs. A. N. Ansari
In S. A. No. 698 of 2003 :
For appellants : M. A. Kandharkar

Headnote:Easements Act, 1882 - Section 60(b) - Occupying the land by virtue of licence - Irrevocability of licence - Conditions. - The licence is irrevocable only if the three conditions are fulfilled; namely (i) licensee executed work of permanent character; (ii) he did so acting upon the licence; (iii) he incurred expenses on doing so and onus of pleadings and proving these facts is always on the defendant who pleads irrevocable licence. It is well settled p rinciple of law that before any evidence of any fact may be given in a civil proceeding, party has to plead the fact, so that on such disputed fact issue may be framed and then parties may lead evidence on that issue. Admittedly, in the present matters, the defendants in their written statements had not admitted that they were licensees and further they had also not pleaded that they had, acting upon the licence, constructed huts or houses of permanent character and had incurred expenses in execution of the said work. Naturally, in absence of any such plea of irrevocability of licence, no issue was framed. The plaintiff proceeded to lead evidence to prove his title, licence and revocation of licence by issuing notice. Defendants, on the other hand, tried to lead evidence to prove their title or adverse possession over the said lands for more than 12 years. Plea of irrevocability was not raised in the written statement. In absence of such plea and evidence, at the stage of arguments they could not be allowed to say that the licence has become irrevocable. AIR 1976 SC 2506 and AIR 1987 SC 1242, Ref.

JUDGMENT: - All these five Second Appeals may be disposed of by this common Judgment as the respondent, who is original plaintiff, is common all the five matters, though, the appellants, who are original defendants or legal heirs of defendants, are different. The facts involved are almost common.

2. The facts leading to these appeals may be stated in brief thus :

The respondent Dr. Pandurangrao is the original plaintiff. He filed these suits contending that the land S. No. 200/2 admeasuring 94 Ares and S. No. 200/3 admeasuring 1 hectare 5 Ares, both situated at village Ratnali, Taluka Biloli. Dist. Nanded, had come to his share in partition of joint family property. The lands are situated near the village locality. Some portion of the land was under cultivation and remaining open area was given to needy persons for utilisation as licensees free of charges. The defendants were also licensees. The plaintiff claims to have issued notices to the defendants revoking the licence and seeking possession of the land. However, the defendants refused to accept the notices. Thereafter, the plaintiff issued a public notice in daily newspaper "Prajawani" dated 14 - 9 - 1984 and thereby revoked the licence of defendants in all the suits and called upon them to surrender possession. However, the defendants failed to vacate the land and to give possession to the plaintiff, hence the suit.

3. The defendants contested the suit. In Second Appeal Nos. 2 and 3 of 2003, the defendants claimed that their forefathers had purchased the land and contended that they had constructed their huts and were residing on the same for long time, thus they are owners and in any case they have perfected their title over the land by adverse possession. In remaining three Second Appeals bearing Nos. 684, 685 and 698 of 2003, the defendants merely denied the title of the plaintiff and claimed that since the time of their forefathers they were living on the said lands by constructing their huts and thus they have perfected their title by adverse possession.

4. In view of the pleadings of the parties, the learned trial Court framed several issues and after hearing the parties for both the sides, the learned trial Court came to the conclusion that the plaintiff had proved his title over the land and he had also proved that the defendants were occupying the land as licensees . The plea of defendants to have purchased or to have possessed the same hostile to the title of the plaintiff and thus to have perfected the title by adverse possession came to be rejected. Certain other pleas were also rejected .

5. The learned Civil Judge (S.D.) decreed the Regular Civil Suit Nos. 288, 236 and 237 of 1984 to the extent of declaration of title of the plaintiff but dismissed the suit for possession. Against the said judgments Regular Civil Appeal No. 522/1983, RC.A. No. 430/93 and RC.A. No. 42/2001 respectively were filed by the plaintiff. These three appeals filed by the plaintiff came to be allowed and decree for possession was passed .

6. Two suits being RC. S. Nos. 4 and 6 of 1997 were decreed by the trial Court for title as well as possession. In these two matters, the defendants preferred RC.A. Nos. 47 and 80 of 1997 respectively. These appeals came to be dismissed. Therefore, the defendants or their legal representatives in all five suits have preferred Second Appeals.

7. In all five appeals, the main contention of the defendants appellants is that since the time of their forefathers, they have constructed huts or permanent structures and are living on the suit lands and the licence has become irrevocable. Therefore plaintiff - respondent could not revoke the license and claim back possession.

8. Heard Mrs. A. N. Ansari, learned advocate for the appellants in first four appeals and Shri M. A. Kandharkar, learned advocate for the appellants in S. A. No. 698/ - 2003. The respondent - plaintiff argued the matter in person.

9. Even though, initially, the defendants in













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