The agreement between the parties disentitles the licensee from deriving advantage conferred by S.60(b) of the Indian Easements Act.

Pareed Pillay, CJ.

Plaintiffs are the appellants. They filed the suit for partition and recovery of possession of their share in the plaint schedule property. Late Ravi Varma and defendants 1 to 6 are the children of Kunhi Pillai Nambishtathri Amma. The suit property belonged to Kunhi Pillai Nambishtatliiri Amma. The suit was originally filed for a declaration mat Ext. A-4 licence executed in favour of the predecessor of the 7th defendant stood terminated and also for a direction to the 7th defendant to return the property after demolishing the buildings and other structures constructed by him and his predecessors.

2. First plaintiff is the widow of hite Ravi Varma. Plaintiffs 2 and 3 are their children. Esso Standard Eastern Incorporated is the predecessor of Hindustan Petroleum Corporation Limited. Licence was granted over the western portion of the property in favour of Thattil Agencies as per Ext. A-1 dated 7-4-1954 by Kunhi Pillai Nambishtathiri Amma. Eastern poilion was given as per Ext. A-2 dated 14-8-1961 to Standard Vaccum Oil Company. The position covered under ExtAl licence was surrendered by licensee as per Ext. A-3 dated 22-9-1970 in favour of the children of Kunhi Pillai Nambishtathiri Amma. The period of licence to Standard Vaccum Oil Company expired and the licensor got possession of the entire property. It is thereafter that Ext. A-4 licence was granted by the licensor to Esso Standard Eastern Incorporated (predecessor of the 7th defendant). Licence fee for the first five years was Rs. 750/- per month and for the next five years Rs. 900/- per month. The period expired on 30-9-1980. The suit was filed on 29-11-1980.

3. 7th defendant contested the suit contending inter alia that though Ext. A-4 is styled as a deed of licence it is really a lease and therefore as per Esso (Acquisition of tindertakings in India) Act, 1974 the 7th defendant is entitled to have renewal of the lease for a further period of seven years. It is also contended that the 7th defendant is entitled to the benefit under S.106 of Hie Kerala Land Reforms Act.

4. The trial court negatived the aforesaid contention and held that 7th defendant is not entitled to claim the benefit under S.106 of the Kerala Land Reforms Act. Even though the claim under S.106 of the Act was rejected the learned Sub Judge dismissed the suit on the ground that qic 7th defendant is entitled to get the benefit of S.60(b) of the Indian Easements Act as it has constructed permanent structures in the property.

5. There is no dispute among the sharers. Counsel appearing for the 7th defendant submitted that-the Cross Objection is not pressed. In view of the above submission it is not necessary at all for us to analyse the findings of the learned Sub Judge with regard to his conclusion on that aspect of the matter.

6. The only point that arises for consideration is whether 'the 7th defendant is entitled to the protection under S.60(b) of the Indian Easements Act. ekt. A-3 release deed executed by Thattil Agencies mentions the existence of buildings and installations in the western poilion of the property. Ext. A4 says that the licensees have already transferred all the buildings, equipments and installations to the licensors. It is thereafter that Ext. A-4 licence was granted in favour of Esso Standard Eastern In corporalcd. In Ext. A4 it is mentioned that the licensee after the period of licence is bound to remove the building, fittings and oilier structures constructed by it,

7. S.60(b) can have operation only if the licensee has acted upon the licence and erected structures or constructions of permanent character. "Acting upon licence" means the state of mind of the licensee at the time when he constructed the structures or building. In a case where the licensee has considered himself to be a lessee or mortgagee and has constructed the building or erected other structures in the property he would not be entitled to get the benefit under S.60(b). 7th defendant in its wri