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Bombay High Court
G.F.COUTO
Mahadeo Tatu Naik - Appellant
Versus
Ramakant Atmaram - Respondent
Decided On : 01/10/1985
LICENCE - REVOCATION - IRREVOCABILITY - PORTUGUESE CIVIL CODE - INDIAN EASEMENTS ACT - APPLICABILITY - FACTUAL MATRIX - LEGAL PRINCIPLES: 1. Art.2307 of the Portuguese Civil Code applies to cases where works are executed, crops raised or cultivations done in bad faith on another's land, entitling the owner to demand removal and restoration of the land to its initial condition at the cost of the occupier. 2. Possession in good faith requires a title of acquisition or transfer preceding the possession, as per Art.476 of the Portuguese Civil Code. 3. Permission to occupy land, even with payment of rent, fee, or compensation, does not constitute a title of acquisition or transfer for the purpose of establishing good faith possession. 4. The principles of the Indian Easements Act are not applicable to cases where the provisions of the Portuguese Civil Code are attracted, particularly Art.2307. 5. A licensee cannot raise the question of irrevocability of the licence for the first time in the appellate stage, as it constitutes a change of case and is not permissible.
Fact of the Case:
The appellant's ancestors constructed a house on land belonging to the respondent. The appellant and his father occupied the house with the permission of the landowners, paying an annual fee of Rs. 24. The respondent, as the current landowner, requested the appellant to vacate the land, claiming that the licence to occupy had been revoked. The appellant resisted, arguing that the licence was irrevocable under the Indian Easements Act and that the provisions of Art.2307 of the Portuguese Civil Code were not applicable.
Finding of the Court:
The court held that the provisions of Art.2307 of the Portuguese Civil Code were attracted to the case, as the appellant's possession of the land was in bad faith since it was not preceded by a title of acquisition or transfer. The court further held that the principles of the Indian Easements Act were not applicable, as the provisions of the Portuguese Civil Code provided a specific framework for dealing with such cases. The court also held that the appellant was not entitled to raise the question of irrevocability of the licence for the first time in the appellate stage.
Issues: 1. Whether the provisions of Art.2307 of the Portuguese Civil Code were applicable to the case. 2. Whether the principles of the Indian Easements Act were applicable to the case. 3. Whether the appellant was entitled to raise the question of irrevocability of the licence for the first time in the appellate stage.
Ratio Decidendi: 1. Art.2307 of the Portuguese Civil Code applies to cases where works are executed, crops raised or cultivations done in bad faith on another's land, entitling the owner to demand removal and restoration of the land to its initial condition at the cost of the occupier. 2. Possession in good faith requires a title of acquisition or transfer preceding the possession, as per Art.476 of the Portuguese Civil Code. 3. Permission to occupy land, even with payment of rent, fee, or compensation, does not constitute a title of acquisition or transfer for the purpose of establishing good faith possession. 4. The principles of the Indian Easements Act are not applicable to cases where the provisions of the Portuguese Civil Code are attracted, particularly Art.2307. 5. A licensee cannot raise the question of irrevocability of the licence for the first time in the appellate stage, as it constitutes a change of case and is not permissible.
Final Decision: The appeal was dismissed, and the judgment of the lower court was upheld.
(a) Whether the provisions of Art.2307 of the Portuguese Civil Code are attracted to the case;
(b) Whether the lower Courts ought not to have held that on the facts and circumstances of the case the purported licence granted to the appellant's ancestors was irrevocable; and
(c) Whether the prayer of mandatory injunction was not barred by limitation.
2. At the hearing, however, the learned counsel appearing for the appellant restricted his submissions to the first two questions and did not press the third. Therefore, while disposing of this appeal, I will address myself only to the said first two questions.
3. A suit for possession has been filed by the respondent 1 against the appellant herein and the respondent 2 on the grounds that there exists a house bearing Gram Panchayat No. 74 situated at Vithalpur, Sanquelim. The land where the house is standing belonged to one. Dattaram Vithoba Fatarpenkar and was purchased on 13th September, 1966 by the plaintiff/respondent 1 herein. According to the said respondent, the father of the present appellant was in possession of the said house as a licensee and after his death, respondent 1 continued in possession of the same house, also as a licensee, and although he was not entitled to let the house, he allowed the respondent 2 to carry on works as a Mechanic in the said house. Therefore, the plaintiff/respondent 1 requested the appellant to deliver vacant possession of the house, but he failed to do so.
4. The appellant resisted the suit on the main ground that the house has been constructed by his ancestors and further denied that the occupation thereof was as a licensee. He alleged that he was a mundkar and that the Court has no jurisdiction to try the suit.
5. The suit was finally disposed of by a judgment and decree dated 11th Sept., 1970. However, the said judgment was set aside in appeal by the District Court and a direction was given to the trial Court to decide the question of mundkarship as a preliminary issue. As a result, the trial Court directed the appellant to approach the Court of Mamlatdar, and at a later stage, the respondent 1 produced an Order of the Mamlatdar holding that the appellant was not a mundkar in respect of the said house. Thereafter, the suit proceeded and was ultimately decreed by judgment dt. 24th August, 1976 passed by the learned Civil Judge S. D, Bicholim. The appellant herein, being aggrieved, preferred an appeal to the District Court, Panaji which was dismissed by the impugned judgment, for, according to the learned District Judge, inter alia the principles of the Indian Easements Act were not applicable to the case since the provisions of Art.2307 of the Civil Code were attracted and that in terms thereof, the appellant was not entitled to continue in the house against the wishes of the land's owner.
6. Mr. S. K. Kakodkar, the learned counsel appearing for the appellant, contended that the above observations are erroneous and being the basis of the impugned judgment, substantially vitiate and render it liable to be set aside. In fact, he argued, it is common ground that the house was built by the father of the appellant, at his own cost, about 30 years back and has been ever since in occupation of the appellant and his father. Further, it is also common ground that an amount of Rs. 24/- per annum is being paid by the appellant, and was earlier being paid by his father, to the respondent 1 for the occupation of the land where the house was built. In the circumstances, therefore, according to the learned counsel, it is clear from the records that the appellant, and prior to him his father, had been occupying the land and the house with permission of the owners of the land on payment of a rent, fee or compensation. Thus, the occupation of the land and of the house is not
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