KAN SINGH, J. - (1.) THIS is a plaintiff's second appeal directed against the appellate judgment of the Senior Civil Judge, Baran dated 2-5-64 affirming the decree dismissing the suit by the Munsif, Baran and arises out of a suit for possession of a portion of a house situated in village Antah, district Kota. According to the plaintiff, the house in question, in a portion of which defendant-respondent Kishore Singh, now represented by his legal representatives, was living belonged to one Nathaji. Nathaji had a son Pannalal who died in 1932. He had two daughters. Dhool Singh, the plaintiff, is the son of one daughter and Kishore Singh, defendant, was the son of another. Pannalal had a son Dhannalal who died during the life time of his father Pannalal. Pannalal was survived by his widow Kesar Bai. Kesar Bai was alleged to have gifted the house in question to the plaintiff Dhool Singh and the same was evidenced by a registered gift deed Ex. 1. On 25-10-1944 the plaintiff' Dhool Singh had sold a portion of the house to one Kadar Bux by a registered sale deed Ex. 2 on record. The plaintiff proceeded to say that in 1945 or 1946 the defendant Kishore Singh who was his first cousin was permitted by him to live in a portion of the house, gifted to him by Kesar Bai as a licensee. His case was that a document had been written to that effect in favour of the defendant. The plaintiff wanted to have possession of this portion of the house from the defendant, but as the defendant was not vacating it he filed the suit in the court of Munsif, Baran on 6 5-59.
(2.) THE defendant denied that the disputed portion of the house belonged to the plaintiff or that he had taken it from him as a licensee. He asserred that this portion of the house belonged to him. According to him, the portion of the house sold by the plaintiff to Kadar Bux was given to his mother by his maternal grand father at the time of her marriage with the defendant's father in 'kanya Dan' but as this portion had been unlawfully sold by the plaintiff to Kadar Bux the parties came to a settlement and in lieu of the portion sold by the plaintiff the portion in dispute was made over to the defendant and thus the defendant was living in that portion as an owner. The learned Munsif framed a number of issues. Both the parties led their evidence. The learned Munsiff found that the whole of the house was gifted by Smt. Kesar Bai to the plaintiff, that the defendant has not been able to establish that the house had been given in 'kanya Dan' to the defendant's mother by his maternal grand father and that the portion in dispute was given by the plaintiff to the defendant for residential purposes. The learned Munsif negatived the assertion regarding the portion of the house being obtained by the defendant from the plaintiff in lieu of the portion sold by the plaintiff to Kadar Bux. The learned Munsif, however, found that Rs. 125/-had been spent by the defendant in constructing a room in the portion which was in the portion which was in his possession. It was also held that the suit was within limitation. However, the learned Munsif held that the plaintiff was not entitled to revoke the licence and evict the defendant as the permission to live in the house was given to the defendant from generation to generation. For this the learned Munsif placed reliance on the statements of two of the plaintiff's witnesses namely, P. W. 4 Kadar Bux and P. W. 5 Vishambhar Dayal. In the result, he dismissed the suit. Aggrieved by the judgment and decree of the learned Munsif, the plaintiff went up in appeal to the court of the Senior Civil Judge, Baran. The learned Senior Civil Judge affirmed the findings of the learned Munsif: (i) that the gift deed Ex. 1 was executed by Smt. Kesar Bai in favour of the plaintiff, (2) that it has not been established by the defendant that the disputed portion of the house had been given to him by the plaintiff in lieu of the portion sold to Kadar Bux, (3) the defendant had spent atleast Rs. 126/- in constructing a 'kucha' room and a latrine in the portion in his possession, and (4) that it has not been established by the defendant that the house had been given by his maternal grand father to the defendant's mother in 'kanya Dan'. About the licence being irrevocable the learned Judge held that the defendant had constructed the 'kucha' room and a latrine in the disputed premises and the plaintiff came to know of it while the construction was going on. He also held that the defendant was given the licence to live in the premises from generation to generation. Consequently the leaned Senior Civil Judge reached the conclusion that it was a case of licence coupled with a transfer of property and further the licensee acting upon the licence had executed a work of permanent character and incurred expenses for the same. That being so, according to the learned Senior Civil Judge, under sec. 60 of the Easements Act the plaintiff could not revoke the licence. In the result, the learned Senior Civil Judge dismissed the appeal and affirmed the judgment and decree of the learned Munsif. It is in these circumstances that the plaintiff has come in further appeal to this Court. His learned counsel contends that the courts below were in serious error in entertaining the plea that on account of the licence being given from generation to gene ration or on account of the defendant having spent money in making construction of a permanent nature the licence became irrevocable. Learned counsel submits that this was altogether a new case made out by the lower courts for the defendant when the latter had not raised any plea. to that effect in his written statement nor had any issue been framed regarding the same. The learned counsel submitted that the courts below were wrong in holding that the room or the latrine constructed by the defendant on the disputed portion were any works of permanent character. Learned counsel maintains that the courts below had overlooked the defendant's own statement in this regard in which he had admitted that the latrine was of "tat Patta" (screens of gunny bags) and the room on the defendant's own showing was a 'kucha' one. Learned counsel for the defendant respondent, on the other hand, argued that no objection was taken on behalf of the plaintiff to the point being argued in the court below and, therefore, the plaintiff should not be allowed to raise this objection here. Then the learned counsel submitted that the room as well as the latrine constructed by the respondent were works of permanent character. He sought help from two cases Dayaram vs. Deorao (l) and Raghubir Saran vs. Param Kirti Saran (2 ). Finally, he submitted that the value of the improvements made by the defendant in the construction of the latrine and the room has been under estimated. The defendant had spent according to him, substantial amount of Rs. . 284/- in making the construction. He also sought to assail the conclusion of the courts below on the point that the house had been given in 'kanya Dan' to the defendant's mother by his maternal grand father.
(3.) I have considered the matter. The parties had fought the litigation on the question of title alone. Whereas the plaintiff claimed that on account of a gift in his favour by Smt. Kesar Bai, he was the owner of the property, the defendant asserted that the portion sold by the plaintiff to Kadar Bux had been given in 'kanya Dan' to his mother and on account of the unauthorised alienation the disputed portion was given by the plaintiff to the defendant in exchange. It was the plea of the plaintiff that the defendant was in permissive possession. In answer to that the defendant only asserted his own title to the property, but did not set up any case in the alternative that even if he were a licensee the licence would be irrevocable on account of the defendant having raised a construction of permanent character on the property. Normally a licence is revocable unless the case falls under clauses (a) or (b) of sec. 60 of the Easements Act. Under clauses (a) of the licence is coupled with a transfer of property and such transfer is in force the licence would not be revocable, and under clause (b) if the licensee, acting upon the licence, had executed a work of permanent character and incurred expenses in the execution then too the licence will not be revocable. It was a mixed question of fact and law whether the necessary conditions about the irrevocability of the licence existed or not. It was, therefore, necessary for the defendant to have pleaded the necessary facts in his written statement and to have a proper issue framed. It is true, two of the witnesses produced by the plaintiff namely, P. W. . 4 Kadar Bux and P. W. 5 Vishmmbhar Dayal support the defendant, but these statements can be of no avail to the defendant. Even so, I have considered the question whether the defendant can be said to have made any works of permanent character by the construction of the room or the latrine. So far as the latrine is concerned, the defendant has clearly admitted as P. W. 8 that when he wanted to construct the latrine the plaintiff prevented him and, therefore, he had to content himself by merely having a latrine of "tat Pattis" (screens made of gunny bags ). This latrine cannot, therefore, be said to be any work of a permanent nature. As regards the room, the court below has found that it was 'kucha'. Whether a particular construction is one of permanent character or not is primarily a question of fact and the finding can be given only in the light of the nature of the construction and other attendant circumstances. There is no hard and fast rule to determine as to what construction would be regarded as a work of a permanent, character and what construction otherwise than of permanent character. The court below has held that the room was 'kucha' and, therefore, on the material as it stands one cannot hold that the room was a work of a permanent character. It was for defendant to have raised a plea in his written statement and then to have an issue framed for its determination. In the circumstances of the present case one cannot say that the work was of the permanent character. In Raghubir Saran vs. Param Kirti Saran (2), the defendant was the owner of a plot of land on which a tiled thatch had been built by a licensee. In execution of a decree against the licensee the thatch together with the right of residence but without the site was put to auction and was purchased by the plaintiff. The thatch fell down and the land remained vacant ever since then and defendant continued to be in possession of it. Thereafter the plaintiff started construction of a house on the plot when he was obstructed by the defendant and the plaintiff brought a suit for injunction and possession. In these circumstances the court held that the property affected by the licence was the land itself and not the thatch for the construction of which the licence had been granted by the defendant and consequently when the thatch was destroyed but not the land circumstance mentioned in sec. 62 (2) Easements Act did not exist and the court was not required to hold that the licence stood revoked when the thatch fell down. It was further held that defendant had no right to construct a house as he was in the position of a trespasser and was not entitled to any decree for injunction or possession. Further the defendant's act of preventing the plaintiff from constructing a house on the land could itself be treated as an implied revocation of the licence and no formality was required for the revocation of the licence. It was in the light of those facts that the learned Judges had observed that to render a licence irrevocable three conditions were required: (1) the licensee executed a work of a permanent character, (2) he did so acting upon the licence, and (3) he incurred expenses in the execution. Then the learned Judge remarked that the construction by a licensee of a thatch with a tiled roof on the licensed site can be said to be of a permanent character even though it may have been used only for tethering cattle and storing fodder, but then the learned Judges guarded themselves by observing that whether the licensee acted upon the licence by constructing the thatch or not and whether he incurred expenses in the erection or not are essentially questions of fact, the onus to prove which lies upon the licensee who relies upon the provisions of sec. 60 for contending that the licence is irrevocable. In the absence of any evidence on these questions the licence cannot be said to be irrevocable under sec. 60. Provided the guide lines indicated by the learned Judges are kept in view in the appreciation of the question whether the work is or is not of a permanent character one can have no quarrel with the proposition that a thatch with a tiled roof could be considered a work of a permanent character. As I have already observed, it will depend on the facts and circumstances of each case whether the work was or was not of a permanent character. ;