JUDGMENT

King, J. - This is a plaintiff's appeal arising out of a suit for possession of a house. The property in suit belonged to Sheo Dayal who was a cousin of Thakur Prasad. Thakur Prasad, had one son Behari Lal by his first wife and four sons by his second wife. By a private arrangement it was provided that Behari Lal should live with Sheo Dayal and should succeed to his share of the property and that the four sons of Thakur Prasad by his second wife should be the owners of Thakur Prasad's property.

2. In 1892 Sheo Dayal executed a deed of gift in favour of one Bhola Nath. The donor recites that he had brought up Bhola Nath from his childhood and he had been obedient and diligent in service to him and had worked at the shop which was the subject-matter of the deed of gift. The doner goes on to say that as he is very much pleased with Bhola Nath and anxious to provide for his permanent maintenance therefore he makes a gift of the entire stock in trade, account books and outstandings due to the shop specified excepting the pucca shop itself. It is provided that the donee shall remain in proprietary possession from generation to generation of the stock in trade, account books and of the outstandings and that he shall have the right to keep the stock in trade in the said pucca shop and to sell his goods in the shop but he shall under no circumstances have power to sell or make any other kind of transfer of the pucca shop. Para. 3 recites:

That as long as the donee or his sons or heirs continue to carry on the business of the said shop and the sale of goods and merchandise therein till then I and my heirs will allow it to be carried on therein, but whenever the donee or his heirs close the said business and the shop becomes vacant, then I or my heirs will reenter into the possession of the said shop.

3. Bhola Nath entered into the possession of the shop in question in accordance with the deed of gift and Sheo Dayal died in 1893. Sheo Dayal's property passed to Behari Lal, the plaintiff, in accordance with the terms of the family arrangement. The plaintiff has brought this suit against the defendants, who are the heirs of Bhola Nath, on the allegation that the business of the shop has altogether been slopped and that in accordance with the conditions laid down in the deed of gift executed by Sheo Dayal in 1892, the plaintiff is entitled to take possession of the pucca shop. The suit was defended inter alia upon the ground that the business of the shop still continued and that the plaintiff was not entitled to take possession of the shop in such circumstances. The main contention between the parties was whether the business of the shop had stopped or whether it was still continuing. Both the Courts below have concurrently found that the shop was not closed and that the business was still continuing and on that ground the plaintiffs suit was dismissed.

4. In second appeal it has been argued for the plaintiff that because the defendants were mere licensees the plaintiff was entitled to revoke the license and the suit should have been decreed. The plaintiff did not in his plaint take up the position that the defendants were mere licensees and that he was entitled to revoke the license and reenter into possession of the premises whether the business was closed or not closed. His case was that in accordance with the deed of gift the plaintiff was entitled to re-enter upon the premises if the business of the shop were closed and that as the business had, in fact, been stopped therefore he was entitled to re-enter. As the main issue between the parties, whether the business had or had not been closed down, has been decided against the plaintiff . he now adopts the position that he is nevertheless entitled to succeed upon other grounds. The main question raised in this appeal is whether the defendants are mere licensees and whether the plaintiff is entitled to revoke the license notwithstanding the fact that the business of the shop is still