DWARKA S/O. KALUDIN AHIR Vs. GOURISHANKAR THAKUR S/O. SUNDER

JUDGEMENT

(1.) THIS is defendant's appeal from the reversing judgment of the Additional District Judge, Jubbulpore, in Civil Appeal No. 4A of 1940, delivered on 22nd July 1940. The question in this appeal is whether a structure which is described by letter A in the plaintiff's plan is a structure of permanent character. The lower appellate Court differing from the trial Court held that it was not of a permanent character and that consequently the plaintiff was entitled to possession of the site after removal of the structure. The plaintiff's case was that he had given a license to the defendant to build a hut on the site in dispute which formed part of an occupancy holding, on an annual rent of Rs. 2 subject to the condition that the defendant was to vacate the site at a month's notice. The defendant exceeded the terms of the license by building two additional huts without the permission of the plaintiff. The plaintiff therefore has to sue for possession of the entire site after removal of the three structures and for Rs. 30 as damages for use and occupation of the land. The defendant's ease was that the huts were of a permanent character built for his residence at a cost of Rs. 250 and that the license was irrevocable under Section 60, Basements Act. The trial Court inspected the site and both parties adduced evidence. It found that one of the huts which was constructed by the defendant soon after he obtained a license was of a permanent character but that the other two which were subsequently built were of temporary nature. It therefore ordered the removal of the two temporary huts marked in the plaintiff's plan by letters B and C and dismissed the rest of the plaintiff's claim. The defendant acquiesced in the decision and did not prefer any appeal.

(2.) IN the lower appellate Court the appeal was filed by the plaintiff and he succeeded on his plea that even the structure marked by letter A in the plaintiff's plan was of a temporary character and obtained a decree for possession coupled with compensation amounting to Rs. 30 for use and occupation of the site. It is not denied that the structure A is of bricks and boulders set in mud and that it has a wooden door although it has thatched roof. Even the plaintiff admits as P.W. 1 that he had given permission in 1935 when he granted license to build a residential hut. He also admits that one of the three huts was fit for residence. Even in the plaint his main complaint was that the defendant had not paid rent for the first hut constructed in Sambat 1993=1935-36 and had not removed the other two huts see para. 3. The complaint in respect of the first hut A was not that it was not a permanent structure which he wanted the defendant to remove, but that he had not paid rent in respect of that hut.

(3.) IN the present ease the walls have bricks and holders though set in mud. The more important factor to be considered is the intention with which the house was built. If it was built for residence, it must be presumed to be of a permanent character. Even the plaintiff admits that it was built for residence. As Aikman J., pointed in Nasir-ul-Zaman Khan v. Azimullah 28 All. 741 the expression "a work of a permanent character" is used to denote some work which is not of a temporary nature. If a man were to get a license to erect a pandal for marriage ceremony or such other temporary purpose, the building would be of a temporary nature even though parts of it may be built with stones and bricks set in lime. That cannot be said of a building which is erected for purposes of residence. I have no hesitation in holding that the structure A was a work of a permanent character which rendered the license irrevocable. It is urged that the lower appellate Court's finding is a finding of fact which is not open to challenge in second appeal. In some of the cases cited above the High Court interfered with the finding of the lower appellate Court apparently on the view that the finding is one of mixed fact and law. Whether a structure is of a permanent character or not is not a pure inference of fact but is partly an inference of law.