TaxTMI 
TaxTMI 
1987 (4) TMI 476
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....d the society to run an English Middle School on rent in his building. which stood on the site in dispute, the school was commonly known as the "Narhi Middle School". The school was not recognised by the Education Department of the Government as it had no endowment and no building of its own. After protected correspondence with the authorities of the Education Department Raja Ram Kumar Bhargava president of the Society by his letter dated November 26, 1941 (Exhibit C-B-6) informed the Inspector of Schools Lucknow that he has given away the premises occupied by the school free of rent which may be considered his permanent contribution to the cause of the school. In pursuance to the declaration made by Raja Ram Kumar Bhargava the Education Department of the State Government recognised the institution. The members of the Committee of Management felt obliged to the Raja for his charitable disposition in donating the building to the school, accordingly, they unanimously passed a resolution expressing their gratitude to the Raja and they further resolved to change the name of the institution as the "Bishun Narain Anglo Vernacular School" to perpetuate the memory of late Bishun Narain Bha....
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.... in Hazratganj, Lucknow, bearing house No. C-43/111 in the occupation of Bishun Narain High School. Ram Sarup Gupta the appellant after purchasing the property served notice on the school and its managing committee terminating their license and directing them to restore the possession of the property to him within a specified period. Since the property was not restored to him, he filed a suit for possession against Bishun Narain Inter College, members of the committee of management of the college and the Progressive Education Society in the court of Civil Judge, Lucknow. Subsequently under the order of the trial court the members of the committee of the management of the Bishun Narain Basic School were also impleaded as defendants 11 to 17. The defendants inter alia pleaded that the Raja had donated the property in dispute to the school permanently and the school had made permanent constructions by incurring expenses for that reason license was irrevocable. On the pleading of the parties the trial court framed 8 issues and the parties produced evidence in support of their case. The trial court recorded findings that the property in dispute belonged to the joint family of which R....
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....o plead the necessary facts in their written statement, the evidence produced by them could not be considered. On these findings the learned judge proposed to set aside the trial court's order and decree the plaintiff's suit. Since there was difference of opinion the matter was referred to a third Judge. The appeal was then heard by T.S. Misra, J. he discussed the questions in respect of which the two judges had disagreed and by a detailed order he concurred with the view expressed by D.N. Jha, J. as a result of which the trial court's judgment was upheld and the appellant's suit was dismissed. The appellant has preferred this appeal by special leave under Article 136 of the Constitution. Sh. S.N. Kacker, learned counsel for the appellant contended that the trial court as well as the High Court both erred in holding that the license was irrevocable under section 60(b) of the Indian Easement Act. He urged that the defendants had failed to raise necessary pleadings on the question, no issue was framed and no evidence was produced by them. In the absence of requisite pleadings and issues it was not open to the trial court and the High Court to make out a new case for the defendants....
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....d the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR 286 a Constitution Bench of this Court considering this question observed: "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit a....
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....t of the purpose for which the license had been granted. In fact, issue numbers 4, 5 and 6 framed by the trial court relate to the question whether license was irrevocable. The issues so framed involved the question of irrevocability of the license under both the clauses (a) and (b) of the Section 60 of the Act. The plaintiff went to trial knowing fully well that defendants claim was that the license was irrevocable, on the ground that they had made permanent constructions and incurred expenses in pursuance of the license granted for the purpose of school. The plaintiff knew the case he had to meet, and for that purpose he produced Raja Ram Kumar Bhargava in evidence in support his plea that the license was a simple license and it was not irrevocable as pleaded by the defendants. This question has been considered in great detail by T.S. Misra, J. and we are in agreement with the view taken by him. Mr. Kacker, then contended that mere execution of work of a permanent character and incurring expenses by the licensee is not sufficient to make the license irrevocable instead licensee must plead and prove by positive evidence that the licensee "acting upon the license", executed work....
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....ould, in the absence of such right, be unlawful. Such right does not amount to an easement or any interest in the property. The rights so conferred is license. The grant of license may be express or implied which can be inferred from the conduct of the grantor. Section 60 provides that a license 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 license, has executed a work of permanent character and incurred expenses in the execution. Revocation of license may be express or implied. Section 62 enumerates circumstances on the existence of which the license is deemed to be revoked. One of such conditions contemplate that where license is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the license shall be deemed to be revoked. Section 63 and 64 deal with license's right on revocation of the license to have a reasonable time to leave the property and remove the goods which he may have placed on the property and the licensee is further entitled to compensation if the license was granted for consideration and the license was termina....
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....ction of both the clauses of Section 60 of the Act, firstly, they pleaded that the license was coupled with the transfer of property inasmuch as the school had been realising rent from third parties who were permitted to use a portion of the land. Secondly, they pleaded that the licensee, namely, the school had executed permanent constructions and incurred expenses in execution thereof acting on the license. The trial court as well as the High Court both rejected the respondents' claim of license being irrevocable under section 60(a) of the Act. But they upheld the respondents plea of license being irrevocable under clause (b) of Section 60 of the Act. It is true that the pleadings raised in the written statement of defendants did not expressly use the expression that the school had executed work of permanent character "acting upon the license". But reading the entire written statement one cannot escape the conclusion that the defendants had raised the plea that Raja Ram Kumar Bhargava the grantor of the license had granted license for running the school in the building and for using the open land for the purpose of school and in pursuance of the license, so granted, the school had....
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.... the plaintiff admitted in his testimony that he continued to be the president of the school since 1938 to 1961 and thereafter his wife has continued to be the president, it is therefore difficult to believe that he had no knowledge of the constructions. If the license did not permit the school to execute any permanent constructions, Raja Ram Kumar Bhargava would have certainly raised objections. His conduct of acquiescence to the raising of constructions, is eloquent enough to show that the license was irrevocable. No doubt Raja Ram Kumar made attempts to support the plaintiff's case by saying that he had not given the property to the school permanently but the trial court and the High Court both have discarded his testimony and we find no good reason to take a different view. In Gujrat Ginning and Manufacturing Co. Ltd. Ahmedabad v. Moti Lal Hirabhai Spinning and Manufacturing Co. Ltd. Ahmedabad, protection of Section 60(b) of the Act was invoked by a party who had made constructions on his own land and not on the land of the licensor and in that factual backdrop the Privy Council held that the expression "acting upon the license" must mean acting upon a fight granted to do upon ....
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....e could not be irrevocable under section 60(b) of the Act. Decisions relied are Raghbir Saran v. Param Kirti Saran, AIR 1962 All. 444; Deep Chand v. Kasturi Devi, AIR 1975 Pat. 17, Karan Singh v. Budh Sen, AIR 1938 All. 342; Mohammad Ali v. Ahmad Husain, AIR 1932 Oudh. 264; Babulal Choukhani v. Caltex (India) Ltd., AIR 1967 Cal. 205; Hashmat Jahan v. Sheo Dularey, AIR 1942 Oudh. 180; Brun Daban Jena v. Ram Chandra Misra, [1963] 29 Cut. L.T. 37; Banamali Dalbehura v. Ratnamani Dei, [1954] 20 Cut. LT 319. We do not consider it necessary to discuss these authorities in detail as in our opinion all the three conditions as required by Section 60(b) of the Act have been made out to show that the license was irrevocable. The respondents placed reliance on the decisions of Lahore High Court had Oudh High Court in Jagat Singh and others v. District Board Amritsar, AIR 1940 Lahore 18 and Thakur Prasad v.J. Thomkinson, AIR 1927 Oudh 206. In these decisions the Court held that where a license was granted to a school in respect of a land, and in pursuance thereof the licensee constructed work of permanent character on the land, the license was irrevocable under section 60(b) of the Indian Easem....
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....early indicate that Raja Ram Kumar Bhargava had permanently donated the property in dispute to the school and in lieu thereof the institution was named after his father to perpetuate his memory. The purpose of the grant was to enable the school to carry on its activity of imparting education to the students. The school progressed and it required additional building, Management of the school which was headed by Raja Ram Kumar himself, constructed additional buildings to provide for class rooms and other amenities to the students. Raja Ram Kumar Bhargava himself never raised any objection against the school making additional constructions on the disputed land. These facts and circumstances point out the terms and conditions of the license, that the school was permitted to occupy and enjoy the land permanently for the purpose of education. In this background, it would be reasonable to infer, an implied condition that the license was irrevocable and the school was permitted to occupy and use the premises so long as it continued the purpose of imparting education to the students. The appellant's submission that Raja Ram Kumar Bhargava being Karta of joint family could not create a pe....