The owner of an immoveable property can maintain a suit against his licensee for a mandatory injunction directing him to vacate the property on the termination of the license.

( 1 ) THIS appeal raises a pure question of law which does not appear to be covered by any direct authority of this court, viz. , whether the owner of an immoveable property can, on the termination of a license, maintain a suit against his licensee for a mandatory injunction directing him to vacate the property.

( 2 ) IN order to appreciate how the above question of law has arisen in this appeal it is necessary to state the following facts:---

( 3 ) ONE deceased Bhabani Nath Nandi, a Superintendent of Police owned a house in Raja-shahi town which is now in East Pakistan. After the partition of Bengal he migrated to West Bengal and rented a house in Berhampore town within Murshidabad District belonging to a Muhammedan named Afazuddin Ahmed a Muk-tear of the local courts. The latter in his turn migrated to East Pakistan and occupied Bhabani Nath Nandy's house at Rajashahi as a tenant. Neither party paid any rent as the rents of the two houses being of the same amount were mutually set off. Bhabani's nephew Naren-dra Nath Nandy, respondent of this appeal was a defendant in the trial court. He was a dependent of Bhabani and was allowed to occupy a part of the Berhampore house which is now in dispute as a caretaker and licensee. After the death of Bhabani his widow Sm. Mokshada Nandi and the two appellants of this appeal, who are grandsons of Bhabani by a predeceased son, terminated the alleged license and brought the present suit asking the defendant respondent to vacate the portion of the house occupied by him. The latter did not comply with this request and so the present suit was instituted by them. Mokshada died during the pendency of the suit in the trial court.

( 4 ) THE defendant respondent contested the suit claiming that he was a co-sharer of Bhabani and co-tenant in the house and as such he was not ejectable at the instance of the plaintiffs. This plea was repelled by the trial court which held that the defendant was a mere licensee and on that finding it passed a decree against the defendant directing him to vacate the disputed house permanently.

( 5 ) ON an appeal being preferred by the defendant the lower appellate court maintained the finding of the learned Munsiff that the defendant was merely a licensee, but it dismissed the suit because, in its opinion, the plaintiffs were not in possession of the house and because they could get equally efficacious relief more certainly by bringing a suit for declaration of their title to, and recovery of khas possession of the disputed house. The plaintiffs have preferred this second appeal from the Judgment and decree of the lower Appellate Court.

( 6 ) THE only point requiring decision in this appeal is whether upon the facts found concurrently by the courts below the decree of dismissal passed by the lower Appellate Court is correct in law.

( 7 ) THE finding of the courts below that the respondent was a licensee of appellants' prede-cessor-in-interest Bhabani Nath Nandy being a finding of fact and being based upon a consideration of the evidence adduced by the parties, is not open to challenge in this second appeal. It is on the strength of this finding that the trial court passed a decree against the defendant respondent directing him to vacate the disputed house. In substance the decree amounts to a mandatory injunction under Section 55 of the Specific Relief Act although the trial court thought that it passed a decree on the principle contained in illustration 'o' of Section 54 of the Specific Relief Act. That illustration runs as follows:"a, the owner of certain houses in Calcutta, becomes, insolvent. B buys them from the Official Assignee and enters into possession, A persists in trespassing on and damaging the houses and B is thereby compelled, at considerable expense to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass. "

( 8 ) SECTION 54 of the Specific Relief Act, however deals with pro