JUDGMENT

1. This is a plaintiffs' appeal against the judgment and decree, dated 30th September 1931, of the learned Subordinate Judge of Lucknow, reversing the judgment and decree of the Munsif, South Lucknow, dated 31st March 1931. It arises out of a suit for possession. The case for the plaintiffs may be briefly summarised as follows: Plaintiffs 3 to 6 owned a plot of land No. 497 in mohalla Nayagaon, Lucknow. The defendants are living on a portion of the said plot in a house constructed by them with a tiled roof. Plaintiffs 3 to 6 executed a sale deed in respect of No. 497 in favour of the father of plaintiffs 1 and 2. The plaintiffs asked the defendants to remove their materials and buildings from the said land and hand over possession thereof to the plaintiffs, but the defendants did not pay any heed to this. The plaintiffs therefore brought the present suit for recovery of possession over the land on which the tiled construction of the defendants lies. They also prayed that the defendants be ordered to remove the tiles and materials from the said land. In the course of oral pleadings, it was stated on behalf of the plaintiffs that the defendants were in possession of the land in suit as licensees. The defendants claimed to be the owners of the land and of the house standing thereon. They denied the alleged license and pleaded that the plaintiffs had never been in possession of the land in suit within limitation. On these pleadings the parties went to trial, but curiously enough the plaintiffs appear in the course of trial to have led evidence to show that the defendants held possession of the land in suit as tenants on payment of certain annual rent.

2. The learned Munsif relying on this evidence, held that the defendants were tenants of the plaintiffs who had been constructively in possession of the land in suit. Thus he was of opinion that the plaintiffs, though they had failed to prove their ownership, had succeeded in making out their possessory title. He accordingly decreed the plaintiffs' cLalm. On appeal, the learned Additional Subordinate Judge pointed out that before the institution of the present suit the plaintiffs had filed a suit for ejectment of the defendants, alleging them to be tenants under a sarkhat of January 1912. This suit was dismissed some three months before the institution of the present suit. He held that apart from the question of res judicata, the learned Munsif ought not to have made out a case of tenancy in favour of the plaintiffs when the plaintiffs themselves had never set it up, either in their written or oral pleadings. He therefore held that the plaintiffs ought to be confined to the case of license set up by them. He did not think it necessary to record any definite finding on the question of license because he was of opinion that even on the assumption that the defendants were licensees, the suit was barred by reason of the provisions of Section 60, Clause (b), Easements Act, as the constructions made by the defendants on the land in suit were works of a permanent character and the defendants had incurred expenses in their execution. As a result of these findings, he allowed the appeal and dismissed the plaintiffs' suit.

3. It has been contended on behalf of the appellants that the constructions existing on the land are not works of a permanent character, and that in the absence of any evidence on behalf of the defendants to prove that the house constructed by the defendants was a work of a permanent character, the learned Additional Subordinate Judge should not have disposed of the case in the way he did. The plaintiffs in para. 5 of their plaint have themselves alleged that the house existing on the land had been constructed by the defendants, and that it was a construction with a tiled roof. The plaintiffs have therefore no ground of complaint if the lower appellate Court has based its conclusion on the plaintiffs' own admission. As regards the question whether such constructions