Defendants established a right under Section 60(b) of the Indian Easement Act based on implied consent for a permanent structure.

JUDGMENT

Dated this the 17^th day of January, 2025 The defendants in a suit for mandatory eviction and prohibitory injunction are the appellants. The defendants, though disputed the plaintiff’s title over plaint schedule item No. 1 and 2 properties, advanced alternate contentions that they have got fixity of tenure by way of Kanam- Kuzhikkanan & kudikidappu right and Irrevocable License under Section 60(b) of the Easement Act.

2. The plaint schedule item No.1 is having an extent of 1Acre 23 cents of land. Plaint schedule item No.2 is a part of plaint schedule item No.1 having an extent of about 2 cents of land in which the residential building of the defendants is situated.

3. The Trial Court referred the matter to the Land Tribunal on the question of fixity of tenure and kudikidappu under Section 125 (3) of the Land Reforms Act . The defendants did not appear before the Land Tribunal and the Land Tribunal answered the reference against the defendants. The Trial Court found that the claim under Section 60(b) of the Easement Act is not sustainable in the absence of positive evidence from the defendants. The Trial Court decreed the suit granting mandatory and prohibitory injunction sought by the plaintiff with respect to plaint schedule item No. 1 and

2.

4. The defendants filed appeal before the First Appellate Court and the same was dismissed confirming the judgment and decree of the Trial Court. This Court admitted the Regular Second Appeal on the following substantial question of law:

“Is not the permission granted by the plaintiff to the

1^st defendant to construct a house and occupy it irrevocable or it is a right coupled with interest under Section 60(b) of the Indian Easement Act ?.”

5. I heard the Senior Counsel for the Appellant, Sri.N.N Sugunapalan, instructed by Sri. S. Sujin, and the learned counsel for the 1^st respondent, Smt. Ranjanie.R.

6. The learned Senior Counsel for the appellant invited my attention to the specific pleading in the Written Statement in which the defendants claimed the benefit under Section 60(b) of the Indian Easement Act . According to the Senior Counsel, it is admitted by the plaintiff that the construction of the house is made by the defendants, in such case it could only be on the basis of the license granted by the plaintiff to the defendants. The construction of the house can only be by a permanent structure.

7. On the other hand, the learned counsel for the respondents submitted that there is no specific pleadings and evidence for claiming benefit under Section 60(b) of the Easement Act. The defendant did not adduce any oral evidence in support of the said claim.

8. I have considered the rival contentions.

9. The only question is to be considered in this appeal is whether the defendants are entitled to get the benefit under Section 60(b) of the Indian Easement Act .

In order to claim benefit under Section 60(b), there should be a license, the licensee acting upon the license should have executed a work of permanent character at his expenses.

10. On going through the Written Statement, it is seen that the defendant has made averment that on the basis of the license, he has constructed a residence in the plaint schedule property. It is not specifically stated that the work is of a permanent character. But when the construction of a residence is averred in the Written Statement, it could only be of a permanent character. It is true that the defendant did not adduce an evidence in support of the claim.

11. There is no pleading or evidence from either side with respect to the origin and nature of entrustment of the plaint schedule properties. The plaintiffs have sought a decree for mandatory inju