The irrevocability of a licence under S.60(b) of the Indian Easements Act has to be pleaded and proved, and in the absence of such plea or issue, the courts were in error in holding that the licence was irrevocable.

1. Defendants 3 in number in O.S. 617 of 1978 are the appellants. The suit was for recovery of possession of property described in the plaint schedule after demolishing the building therein which has been described as item No. 2, on the strength of title of the plaintiff. According to the plaintiff, permission was given to the 1st defendant to construct a building in plaint item No.1 on condition that she will surrender the building whenever demanded. The property in question is now required by the plaintiff bona fide for constructing a building for her son Asokan.

2. The defendants resisted the suit putting the plaintiff to prove her title and possession over the plaint schedule properties and also contending that it was Joseph, the husband of the 1st defendant,who obtained permission from Marshall, the husband of the plaintiff, to construct a building. It was also contended that it was after obtaining permission from Marshall, Joseph started residence in plaint item No. 2 and this permission was given 30 years back. The defendants were residing in the plaint item No. 2 along with Joseph, who died subsequently. The transactions between the plaintiff and the defendants, evidence tenancy and she is entitled to fixity of tenure and in any view, she is entitled to the Kudikidappu right under the Kerala Land Reforms Act. There were other contentions also.

3. Before the trial court, five issues were framed. The 2nd issue was "whether the first defendant is a Kudikidappukaran in the property." The third issue was "whether the defendants are liable to be evicted." Issue No. 2 was referred to the Land Tribunal for a finding under S.125 of the Kerala Land Reforms Act, here-in-after called 'the Act'. The Land Tribunal entered a finding that the first defendant is not a Kudikidappukaran.

Thereafter the the suit was tried on other issues. The plaintiff was examined as Pw.l and Exts. Al to A4 were marked on her side; while the first defendant was examined as Pw.l and there was no documents to be marked on her side.

4. The trial court found under issue No.1 that the plaintiff is the owner of the plaint schedule property and under issues 2 and 5 accepting the finding of the Tribunal, it was found that the first defendant is not a kudikidappukaran in the property and under issue Nos. 3 and 4, it was found that the plaintiff has title and possession over the plaint item No. 1, and on the strength of title, the plaintiff is entitled to a decree for recovery of possession after evicting the defendant from plaint item No.2. The suit was decreed in the light of the above findings.

5. This decree and judgment were challenged by defendants in appeal and the learned Subordinate Judge, Cochin after hearing both sides dismissed the appeal confirming the decree and judgment of the trial court.

6. This Second Appeal was admitted by my learned brother, who formulated the following as substantial question of law.

"Whether the appellants are entitled to the protection of S.60 of the Indian Easements Act is the question of law arising in this case and issued notice."

7. Attacking the decree and judgment of the lower appellate court, the learned advocate appearing for the appellants submitted that the lower appellate court seriously erred in holding that S.60 (b) of the Indian Easements Act does not apply to the facts of this case and the two grounds given by that court for not applying the said provision and granting the benefits thereunder to the appellants are not sound in law, and on the facts of the case.

8. The learned advocate appearing for the respondent strongly contended that the question formulated is really not a substantial question of law but it is only a mixed question of fact and law, that in the absence of any pleadings in this regard and an issue on this point, the lower appellate courts ought not have considered this point and in any view the finding of the lower appellate court on the facts and evidence in the case, that S.60(b) of the