- (1.) This appeal by special leave is directed against the judgment and order of the High Court of Gauhati dated 12-8-88 in Second Appeal No. 85/79 and has arisen in the following circumstances: Shri Durga Charan Barua, predessor-in-interest of the appellant, allowed respondent No. 1 Umesh Chandra Goswami, to make permissive use of a plot of land in Jorahat town for a period of two years commencing from 1-6-63 and to raise temporary structure thereon for the said period for the purpose of his residence. There was an understaiding between them that the respondent would remove the structure and deliver khas possession of the suit land after the expiry of the period of two years. On the failure of the respondent to handover the vacant possession of the suit land to the predecessor-in-interest of the appellants, a registered notice was served on the respondent to deliver the possession by 31 st March, 1966. The respondent did not deliver possession and the predecessor-in-interest of the appellant thereupon, in 1966, filed a suit in the Court of Munsif, Jorahat, for a decree of khas possession and compensation. It was registered as Title Suit No. 65/66. After surevey commission, it was found that the value of the suit land exceeded the pecuniary jurisdiction of the Munsif's Court and therefore the suit was brought to the Court of Assistant District Judge, Jorahat and registered there as Title Suit No. 36/67. The case set up in the plaint by the plaintiff was that he had allowed the defendant to make permissive use to of the suit land by raising temporary structure thereon for a period of two years with effect from 1st of June, 1963 but in spite of a clear understanding between the plaintiff and the defendant that the latter would vacate and deliver khas possession of the suit land by removing his temporary structures from the land at his own cost at the end of the period of two years, he had failed to hand back the possession of the suit land. The defendant resisted the suit and in the written statement inter alia pleaded that "the defendant did not occupy any land as a permissive user under the plaintiff.............the defendant has occupied the land under the contract of purchase and never gave any understading to the plaintiff to remove his structures". While title Suit No. 36/67 filed by the predecessor-in-interest of the appellants was pending, the defendant-respondent also filed suit in the Court of Assistant District Judge, Jorahat, being title Suit No. 23/69 for a decree of specific performance of an oral agreement to sell the suit land against the predecessor-in-interest of the appellant. It was pleaded by the defendant (respondent No. 1 herein) that he had entered into an oral agreement with Shri Durga Charan Garua for sale of the disputed plot of land and had been delivered possession of the same in pursuance of the afore-said agreement by him after receiving Rs. 7860.00 as sale price. That after being handed over the possession of the suit land, as the prospective purchaser, he had constructed a house over it and since Shri Durga Charan Barua had failed to execute the sale deed, a decree for specific performance of the oral agreement by calling upon Shri Barua to execute the sale deed be passed in his favour. Both the suits i. e. Suit No. 36/67 and Suit No. 23/69 were clubbed and tried together.
(2.) During the pendency of the suit, Shri Durga Charan Barua died and his legal representatives were brought on the record. The trial Court by a common judgment and order decreed Suit No. 36/67 filed by late Shri Durga Charan Barua directing khas possession to be given to the plaintiff by the defendant and dismissed Suit No. 23/69 filed by respondent No. 1 by returning a finding that there was no evidence to show that respondent No. 1 had entered into any agreement to purchase the suit land with late Shri Durga Charan Barua nor was there any evidence to show that he had paid the sum of Rs. 7860/- to Durga Charan Barua. The trial Court held that the story of an oral agreement to sell the suit land was a concocted one. Aggrieved by the judgment and decree of the trial Court, respondent No. 1 preferred two separate appeals before the District Judge, Jorahat. Vide judgment dated 21-8-78 the District Judge dismissed both the appeals and confirmed the judgment and decree passed by the trial Court in both cases. The respondent No. 1 thereupon preferred two second appeals before the High Court being S. A. No. 77/79 arising out of Suit No. 23/69 and S. A. 85/78 arising out judgment and decree in Suit No. 36/67. The High Court vide judgment and order dated 4-8-88 dismissed Second Appeal No. 77/79 and upheld the concurrent findings of the two Courts to the effect that the story put forward by respondent No. 1 regarding the existence of an oral agreement to sell, had no truth in it. The plea but forward by respondent No. 1 of his occupying the suit land pursuant to the oral agreement to sell was rejected. It was found that respondent No. 1 had been given possession of the suit land as a licensee by the plaintiff as alleged in the plaint. The High Court, however, vide judgment dated 12-8-88 allowed Second Appeal No. 85/79 arising out of Suit No. 36/67 and by the said judgment granted benefit of the provisions of Section 60(b) of the Indian Easements Act, 1882 (hereinafter called the 'Easements Act') holding the licence to be irrevocable on the principles of "justice, equity and good conscience". the High Court relying on the report of the local Commissioner of 1975 came to the conclusion that the structure raised by respondent No. 1 was of a permanent nature and therefore the protection under Section 60(b) of the Easement Act was available to him and he could not be evicted from the suit land. The preliminary objection raised by the appellants, that no plea on the basis of which the benefit of the provisions of the Easements Act was now being sought for the first time in the second appeal had been raised in the written statement; that no issue had been framed and no evidence was led by the parties before the trial Court regarding the availability of the benefit of Section 60(b) of the Act and that even in the first Appellant Court, no such plea had been raised and, therefore, the same could not be allowed to be raised for the first time in the High Court in the Second Appeal, was rejected and the second appeal, was allowed setting aside the concurrent findings of fact.
(3.) XX XX XX;