JUDGMENT J.H. Bhatia, J.
1. All these five Second Appeals may be disposed of by this common judgment as the respondent, who is original plaintiff, is common in all the five matters, though, the appellants, who are original defendants or legal heirs of defendants, are different. The facts involved are almost common.
2. The facts leading to these appeals may be stated in brief thus:
The respondent Dr. Pandurangrao is the original plaintiff. He filed these suits contending that the land S. No. 200/2 admeasuring 94 Ares and S. No. 200/3 admeasuring 1 hectare 5 Ares, both situated at village Ratnali, Taluka Biloli. Dist. Nanded, had come to his share in partition of joint family property. The lands are situated near the village locality. Some portion of the land was under cultivation and remaining open area was given to needy persons for utilisation as licensees free of charges. The defendants were also licensees. The plaintiff claims to have issued notices to the defendants revoking the licence and seeking possession of the land. However, the defendants refused to accept the notices. Thereafter, the plaintiff issued a public notice in daily newspaper "Prajawani" dated 14-9-1984 and thereby revoked the licence of defendants in all the suits and called upon them to surrender possession. However, the defendants failed to vacate the land and to give possession to the plaintiff, hence the suit.
3. The defendants contested the suit. In Second Appeal Nos. 2 and 3 of 2003, the defendants claimed that their forefathers had purchased the land and contended that they had constructed their huts and were residing on the same for long time, thus they are owners and in any case they have perfected their title over the land by adverse possession. In remaining three Second Appeals bearing Nos. 684, 685 and 698 of 2003, the defendants merely denied the title of the plaintiff and claimed that since the time of their forefathers they were living on the said lands by constructing their huts and thus they have perfected their title by adverse possession.
4. In view of the pleadings of the parties, the learned trial Court framed several issues and after hearing the parties for both the sides, the learned trial Court came to the conclusion that the plaintiff had proved his title over the land and he had also proved that the defendants were occupying the land as licensees. The plea of defendants to have purchased or to have possessed the same hostile to the title of the plaintiff and thus to have perfected the title by adverse possession came to be rejected. Certain other pleas were also rejected.
5. The learned Civil Judge (S.D.) decreed the Regular Civil Suit Nos. 288, 236 and 237 of 1984 to the extent of declaration of title of the plaintiff but dismissed the suit for possession. Against the said judgments Regular Civil Appeal No. 522/1983, R.C.A. No. 430/93 and R.C.A. No. 42/2001 respectively were filed by the plaintiff. These three appeals filed by the plaintiff came to be allowed and decree for possession was passed.
6. Two suits being R.C.S. Nos. 4 and 6 of 1997 were decreed by the trial Court for title as well as possession. In these two matters, the defendants preferred R.C.A. Nos. 47 and 80 of 1997 respectively. These appeals came to be dismissed. Therefore, the defendants or their legal representatives in all five suits have preferred Second Appeals.
7. In all five appeals, the main contention of the defendants appellants is that since the time of their forefathers, they have constructed huts or permanent structures and are living on the suit lands and the licence has become irrevocable. Therefore plaintiff-respondent could not revoke the license and claim back possession.
8. Heard Mrs. A.N. Ansari, learned advocate for the appellants in first four appeals and Shri M.A. Kandharkar, learned advocate for the appellants in S.A. No. 698/-2003. The respondent-plaintiff argued the matter in person.
9. Even though, initially, the defendants in two suits had taken plea of purchase of the land, that plea could not be proved. In all the matters, the plaintiff-respondent has proved his title over the land. The defendants appellants have failed to prove their adverse possession. The trial Court in all the five matters held that the defendants were occupying the land by virtue of licence. Now in the Second Appeals, the defendants have not raised dispute either to the title of the plaintiff nor they have raised the plea of adverse possession. According to them for last 2/3 generations, they are living on the suit lands by constructing huts, which are permanent structures and therefore, in view of Section 60(b) of Easements Act, licence has become irrevocable and therefore, the plaintiff cannot revoke the licence and seek possession back. In view of this, the matters rest on the following issue:
Whether the defendants-appellants prove that the licence has become irrevocable in view of the provisions of Section 60 Clause (b) of Indian Easements Act.
10. It is not in dispute that the plaintiff is owner of the land. The defendants or their fathers had taken possession of the land as licensees. It is also not in dispute that the plaintiff issued notices for revocation of license. The said notices were not accepted and thereafter, the plaintiff issued a public notice in local newspaper "Prajawani". Section 60 reads as follows:
60. Licence when revocable : A licence may be revoked by the grantor unless:
(a) it is coupled with a transfer of property and such transfer is in force:
(b) the licensee acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.
Admittedly, Clause (a) is not applicable to the facts of the present case. Under Clause (b) the licence would become irrevocable if licensee acting upon the licence has executed a work of permanent character and incurred expenses in the execution. All the three conditions have to be satisfied, naturally burden lies on the licensee to prove these three conditions, who pleads that the licence has become irrevocable. It is well settled principle of law that before any evidence of any fact may given in a Civil proceeding, party has to plead the fact, so that on such disputed fact issue may be framed and then parties may lead evidence on that issue. Admittedly, in the present matters, the defendants in their written statements had not admitted that they were licensees and further they had also not pleaded that they had, acting upon the licence, constructed huts or houses of permanent character and had incurred expenses in execution of the said work. Naturally, in absence of any such plea of irrevocability of licence, no issue was framed. The plaintiff proceeded to lead evidence to prove his title, licence and revocation of licence by issuing notice. Defendants, on the other hand, tired to lead evidence to prove their title or adverse possession over the said lands for more than 12 years. Plea of irrevocability was not raised in the written statement. Relying on certain authorities of the Supreme Court in Elizabeth and Ors. v. Saramma AIR 1985 NOC 159 (Ker.), the Kerala High Court held that irrevocability of licence has to be pleaded and proved and in absence of any pleadings or issue on this point, it cannot be said that licence was irrevocable. In Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan , the Supreme Court had to deal with the similar case in which the defendant had not pleaded irrevocability of licence nor any issue was raised but it was contended that the defendant-appellant was deemed to be licensee and since he had executed the work of permanent character involving heavy expenditure. Hence, the licence would be irrevocable under Section 60(b) of the Easements Act. After discussing the facts of the case, Their Lordships made following observations in para 14:
Only one more thing need be stated : even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by Section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licensee.
The authority in the matter of Shankar v. Gangabai (supra) was also referred with the approval by the Supreme Court in Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter College and Ors. . In para 12 of the judgment, Their Lordships made following observations:
12. Reference was made to a number of decisions of the High Courts in support of the preposition that a license is irrevocable under Section 60(b) of the Act only if three conditions are fulfilled, namely (i) the licensee executed work of a permanent character, (ii) he did so acting upon the license, and (iii) he incurred expenses in doing so. The onus of proving these facts lies upon the licensee and in the absence of any evidence on these questions the license could not be irrevocable under Section 60(b) of the Act.
11. In view of the abovereferred authorities, it is well settled that the licence is irrevocable only if the three conditions are fulfilled : namely (i) licensee executed work of permanent character; (ii) he did so acting upon the licence; (iii) he incurred expenses on doing so and onus of pleading of proving these facts is always on the defendant pleads irrevocable licence. In the present case according to the plaintiff himself, the defendants were his licensees. According to the defendants, they or their forefathers have constructed huts which should be deemed to be structures of permanent character. In support of the fact that even huts can be treated as work of permanent character, reliance was placed upon Amjad Khan and Ors. v. Shafiuddin Khan and Ors. . According to the defendants they have constructed the huts and for long period they are living there. Even if relying on the authority in the case of Amjad Khan (supra), it is presumed that the defendants by making construction of the huts have executed work of permanent character, still it will be necessary for them to prove that they have done so acting upon the licence. In present matters the defendants in their written statements never accepted that they were licensees. According to them they had become owners either by way of purchase or by adverse possession and as such they had constructed their huts. It means they had constructed the huts or executed the work of permanent character, under the belief or presumption that they are owners of the land. They did not execute the work acting on the licence which necessarily required not only the license but permission or consent of the licensor to make such work of the permanent character. In absence of such plea and evidence, at the stage of arguments they could not be allowed to say that the licence has become irrevocable.
12. Mrs. Ansari, learned Counsel vehemently contended that in Ram Sarup Gupta (supra) also no specific plea of irrevocability of the licence was taken but Their Lordships held that when the necessary pleadings were taken, though not in specific words and parties were aware about the point in dispute and the parties had also led the evidence, merely because the plea of irrevocability was not taken in so many words, it is not sufficient to reject the case of the licensee. It is material to note that in that case certain property was given to the School for running school on licence and the School management never disputed that it was in possession as a licensee but contended that acting on the licence, they had executed work of the permanent nature and had spent money. Taking into consideration the facts, in para 7 of the said judgment, Their Lordships also held that the pleadings raised by the defendants make it clear that the defendants had raised a specific plea that the licence was coupled with grant, it was a permanent and irrevocable license and in pursuance of the license the licensee had carried out work of permanent character incurring expenses for the advancement of the purpose for which the license had been granted. Their Lordships also noted that in fact, issues Nos. 4, 5 and 6 framed by the trial Court relate to the question whether license was irrevocable. Taking into consideration the facts in the case of Ram Sarup (supra) and the pleading taken therein, I find that the said authority does not come to the rescue of the appellants in the present matter.
13. In view of the facts and legal position discussed above, I find that the defendants-appellants have failed to prove that the licence was irrevocable in view of the provision of Section 60(b) of the Easement Act. As such there is no merit in the appeals, the appeals are liable to be dismissed.
14. For the aforesaid reasons, the appeals stand dismissed. However, in view of the fact that the appellants appear to be poor persons, there shall be no order as to costs.