JUDGMENT

1. Appellants-defendants have filed this second appeal under Section 100 of CPC assailing the judgment and decree dated 29.02.2020 passed in Civil First Appeal No.21/2018 by the court of Additional District & Sessions Judge No.3, Kota affirming the judgment and decree dated 23.01.2018 passed by the court of Additional Senior Civil Judge No.6, Kota in Civil Suit No.46/2015 whereby and whereunder civil suit filed by respondent-plaintiff for declaration and possession has been decreed against appellants.

2. Heard learned counsel for appellants and perusal of both impugned judgments.

3. It appears that the dispute is between father and son, appellant-defendant No.1 is son of respondent and having possession over one room, kitchen, Varanda at first floor in the House bearing No.141-C Indra Gandhi Kachchi Basti, Vigyan Nagar, Kota.

4. Respondent-plaintiff claimed that the said property was purchased by him and was allotted by the Urban Improvement Trust, Kota through registered patta (Exhibit-1) and he permitted his son (defendant No.1) to reside in portion of the house at first floor.

5. It appears that defendant started to create hindrance in peaceful life of plaintiff and also claimed his ownership over the property in question, plaintiff instituted the present suit for declaration and possession.

6. The trial court on rival pleadings of both parties settled the issues and recorded the evidence of both parties.

7. Plaintiff produced the registered patta (Exhibit-1 & Exhibit-2). In rebuttal, defendant No.1-son alleged that he incurred some amount in raising construction of the house and therefore, he is also co-owner of the suit property.

8. It is not in dispute that the title of document of the suit property stands in the name of plaintiff-father and defendant No.1-son has no documentary evidence either to show his title or to prove that he incurred any amount in raising construction.

9. The trial court, on the strength of documentary evidence, observed that the plaintiff is absolute owner of the suit property and defendant is residing in the portion of the suit property with plaintiff's permission as licensee. The plea of defendant that he incurred some amount in raising construction of house was turn down due to lack of evidence and in absence of evidence to controvert documents of plaintiff, following the principle of Sections 91 and 92 of the Evidence Act. The trial court, vide judgment dated 23.01.2018 decreed the plaintiff's suit and directed the defendant to hand over the vacant possession of the portion of the plaintiff's house.

10. The defendant preferred first appeal challenging the judgment and decree dated 23.01.2018 and the first appellate court, re-appreciated the evidence and re-heard the matter as a whole and found that the title documents of the property stands in the name of plaintiff and defendant is in possession as licensee with permission of plaintiff.

11. Having considered the relationship between parties and as per material available on record, the first appellate court concurred with the fact findings recorded by the trial court and dismissed the first appeal vide judgment dated 29.02.2020.

12. Learned counsel for appellants, during course of appeal raised an argument that even if defendant would be treated as licensee in the suit property however, since he incurred some expenses in raising the construction of permanent nature therefore, by virtue of Section 60 of the Easement Act, 1882, his licence has become irrevocable. It appears from the record that no such defence was taken by defendant in his written statement, rather the defendant contested the suit claiming his co-ownership in the suit property. The defendant cannot be allowed to take a new defence at the stage of second appeal which is unfounded and foreign to the pleadings. Once the defendant has taken a defence of claiming co-ownership, he cannot be allowed to take a different stand at the stage of second appeal.

13. This Court finds that both cou