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HIGH COURT OF ALLAHBAD
BEG, H. S. CHATURVEDI, JJ.
Narsingh Das
Versus
Mian Safiullah Sha
First Appeal No. 136 of 1946
Decided On : 24-08-1954
LICENSEE - TRANSFER OF RIGHTS - URBAN AREAS - PRESUMPTION OF TRANSFERABILITY - EASEMENTS ACT, S. 60 - In urban areas, there is a presumption that licensees have transferable and heritable rights in the houses built by them. This presumption can be rebutted by showing that under the terms of the license, the licensee had no transferable rights.
Fact of the Case:
The plaintiff, as Sajjadanashin of Takia Kalan, brought a suit for possession of a piece of land by demolition of the building standing thereon. The defendants claimed to be the transferees of three houses under the sale deeds obtained by them from previous owners. The disputed land was situate in Muhalla Chhaoni Bazar and was about a furlong or so from the main building of the Takia. It was not disputed that the disputed land was endowed property belonging to Takia Kalan.
Finding of the Court:
The trial court found that the land in suit was granted by the previous Sajjadanashin for building purposes to previous owners of the three houses who were in occupation of the land under an irrevocable license, and that the defendants acquired the rights which their vendors had in the disputed property. The court also held that the plaintiff was estopped from claiming demolition of the structures in suit as the constructions were made without any let or hindrance by the Sajjadanashin.
Issues: 1. Whether the defendants were holding the disputed land under an irrevocable license? 2. Whether the defendants had the right to transfer the houses built by them under the license? 3. Whether the plaintiff was estopped from claiming demolition of the structures in suit?
Ratio Decidendi: 1. The court held that the defendants were holding the disputed land under an irrevocable license granted by the previous Sajjadanashin. The court relied on the evidence of Kanhaiya Lal, who had obtained the permission of the Sajjadanashin to build a house on the land in suit but was later called by the Sajjadanashin to cancel his permission and to grant it in favor of the owners of the three houses, which were contiguous to the land in suit. The court also relied on the evidence of Balak Ram, who was working as munim at the shop of Ganga Prasad Bhup Narain, that Ganga Prasad had given a sum of Rs. 200/- for a portion of the disputed land which was at the back of their shop. The court further held that the construction of ahatas by the predecessors of the defendants could be regarded as a work of permanent nature so as to attract the provisions of cl. (b) of S. 60, Easements Act. 2. The court held that the defendants had the right to transfer the houses built by them under the license. The court relied on the presumption that licensees have transferable and heritable rights in the houses built by them in cities and towns. The court also held that there was no evidence to show that under the terms of the license granted by the previous Sajjadanashin, the licensees had no transferable rights. 3. The court held that the plaintiff was not estopped from claiming demolition of the structures in suit. The court held that the constructions were made 10 or 11 years prior to the suit, and that the plaintiff had not acquiesced in the constructions.
Final Decision: The court allowed the appeal and dismissed the suit with costs in both the Courts. The cross-objections were also dismissed with costs.
CHATURVEDI, J. :- This is a defendants appeal arising out of a suit for possession.
2. The suit was filed in the Court of the Civil Judge of Bahraich by the plaintiff in his capacity as Sajjadanashin of Takia Kalan on 4-1-1946. The main relief claimed in the suit was for possession of a piece of land by demolition of the building standing thereon. The disputed land is enclosed by letters A E F B in the map of the commissioner, who was appointed by Court to prepare a site plan. For a better appreciation of the case, this area (A E F B) may be split in two portions, one lying within the letters A B C D and the other enclosed by letters CDEF. At the time when the suit was brought a completed pucca building stood on the land A B C D while on the other piece an incomplete building stood.
3. There is a Muslim religious endowment Known as Takia Kalan in the city of Bahraich owning considerable landed property in the various muhallas of the town. The land described above is situate in Muhalla Chhaoni Bazar and is about a furlong or so from the main building of the Takia. It is not disputed that the disputed land is endowed property belonging to Takia Kalan.
4. Safiullah Shah, the present manager of the endowed property of the Takia Kalan, brought the suit alleging that the defendants had taken illegal possession of the land covered by letters A B C D about six years ago while the land covered by letters C D E F was encroached upon about four months prior to the suit. The plaintiff therefore claimed possession by demolition of the building standing on the land in suit.
5. The three defendants, namely Narsingh Das, his brother Bhomraj, and his son Munna, contested the suit of the plaintiff on various grounds. They claimed to be the transferees of three houses under the sale deeds obtained by them from previous owners. It was asserted by them, and the fact has not been disputed, that originally there were three houses. One of them was owned by Ali Bakhsh and Nabi Bakhsh, the other by Ganga Prasad and Bhup Narain and the third one by Maiku Bhuj, who had built these houses with the permission of the then Sajjadanashin of the Takia.
These three houses existed on the site lying towards the east of the red line marked A.E. in the commissioners map. (Note -This portion is not in dispute). In tracing the history of the disputed land it was alleged that the land in suit was lying parti till about the year 1922 when) one Kanhaiya Lal obtained the permission of the Sajjadanashin to build a house thereon. Thereupon the aforesaid owners of the three houses approached the Sajjadanashin (Miyan Hamid-ud-din) who revoked the permission previously given to Kanhaiya Lal and gave the land in suit for building purposes to the owners of each of the three houses mentioned above.
The owners then built pucca ahatas to include the land in their respective houses. It was alleged that after the purchase of the house of Ali Bakhsh and Nabi Bakhsh in 3934, the defendants constructed a double storeyed house in the year 1935. It is not disputed that this house stands on the land marked A B C D in the commissioners plan. Similarly after the purchase of the house of Maiku Bhuj in 1943 and that of Ganga Prasad and Bhup Narain in 1945 the defendants got the old houses demolished and started new constructions. The building, which lies on the disputed land C D E F, could not be completed when this suit was filed.
Shortly stated, the defence was that the land fn suit was given by the previous Sajjadanashin for building purposes to previous owners of the three houses who were in occupation of the land under an irrevocable license, and that the defendants acquired the rights which their vendors had in the disputed property. It was also pleaded that as the plaintiff had acquiesced in the constructions made on the disputed land, he was estopped from claiming demolition of the structures in suit. It Is not necessary to refer to other pleas raised in defence.
Suffice it to say, t
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