- (1.) S. K. Phaujdar, J. The present plaintiff appellant and the two plaintiff respondents filed O. S. No. 1015 of 1962 before the Additional Munsif, Jhansi, for recovery of possession of a House No. 2716 as described in details in the plaint. It was stated that the three plaintiffs and defendant No. 2 were the owners of the suit-house. The defendant No. 1 had encroached upon this house and had not vacated despite service of notice which compelled the plaintiff to file the suit. The encroachment was allegedly made six years prior to the filing of the suit. Defendant No. 1 contested the suit and pleaded that he was the owner of the house in question as he had inherited the same from one Salamat Khan. He had further pleaded that the suit was barred by Section 42 of the Specific Reliefs Act.
(2.) THE trial Court framed three issues, (1) whether the suit was barred under Section 42 of the Specific Reliefs Act, (2) whether the plaintiffs and defendant No. 1 were the owners of the house, and (3) whether the plaintiffs were entitled to any relief. THE trial Court was of the view that the suit was not barred under Section 42, the plaintiffs were the owners of the property and were accordingly entitled to the possession of the suit property after eviction of defendant No. 1 therefrom. The aggrieved defendant preferred a Civil Appeal No. 73 of 1965. This was heard by the Civil Judge, Jhansi, and the appeal was allowed and the suit was dismissed by the judgment and decree dated 19-3- 77. The first appellate Court was of the view that the defendant was a licensee in respect of suit- premises as gathered from the admission of the parties and he had made substantial constructions on the suit-property and the licence was not open to be revoked under Section 60 of the Indian Easements Act, 1882. When the present second appeal was preferred, two points of law were framed, (1) Whether the appellate Court could extend the benefit of Section 60 of the Indian Easements Act to the defendant- respondent without the respondent having raised a plea to that effect in the written statement and without any issue having been framed in that regard, (2) Whether the ingredients of Section 60 of the Indian Easements Act were established on the facts of the present case. At the time of hearing, only the learned counsel for the appellant had appeared andthematterwas heard ex-parte.
(3.) ELABORATING his points, Sri Sankatha Rai, appearing for the appellant, submitted that a clear-cut case of ownership was raised by the defendant so far the suit-property is concerned while the plaintiffs came up with a clear-cut case of wrongful possession on the part of the defendant No. 1. The Court, according to the learned counsel had no authority to infer a third case from the facts proved in the case and the first Appellate Court had also failed t note that the elements of Section 60 of the Indian Easements Act were not there in the facts and circumstances of the case. A reading of the judgment and decree of the first appellate Court indicates that he had laid stress on certain admissions made by P. W. 4, Abdul Hameed, the plaintiff No. 1 himself. This witness had accepted during examination that the co-owner, Mohammed Yunis had permitted the defendant to stay in the suit-premises. This witness had also accepted that he had not objected to such grant by Yunis. He had further found that substantial constructions were made by the defendant on the suit-property and the first appellate Court inferred that the licence granted by a co-owner Mohammed Yunis to defendant No. 1 was not to be revoked as the licensee, acting upon licence had executed a work of a permanent character and had incurred expenses in the execution. The learned counsel submitted that it was not open for the Court to have acted upon a plea not raised in the written statement. He relied on a decision of the Privy Council as reported in AIR 1930 PC 57. The Privy Council held in this case that if a plea is not raised in the defence no evidence can be looked into upon such plea. Reliance was further placed on a Division Bench decision of the Allahabad High Court as reported in 1962 ALJ at page 297. It was held herein that where the licensee adduced no evidence, whatsoever, to prove whether he had acted upon the licence in making the constructions or not and where he incurred expenses in the execution or not, it must be held that the licensee was not proved to have acted upon the licence and to have incurred expenses by its execution. The learned counsel further relied on a decision of the Privy Council as, AIR 1936 PC 77. Here also the words "acting upon the licence" were explained to mean acting upon a right granted to it upon the land of the grantor something which would be unlawful in the absence of such right.;