P. Bhaskaram vs Indian Iron and Steel Co. Ltd.

Bijayesh Mukherji, J.—This is an appeal by the first Defendant, Satya Narayan Patel, from an appellate judgment and decree of reversal.

Satya Narayan died during the carriage of the appeal and has since been substituted by his heirs, P. Bhaskaram and others.

What is in controversy here is a parcel of land described as plot No. 3820 (admeasuring 20 acres) under khatian No. 413 of Mouza Hirapore within the jurisdiction of Asansol Police Station. The Indian Iron and Steel Company (shortened hereafter into ''the company'') purchased this land on September 3, 1948, by a sale-deed, the certified copy of which is Ex. 1. So it did, from the three sons and the wife of the original owner, Basudeb Thakur, who had died on April 30, 1948, leaving the said vendors him surviving. The consideration was Rs. 883 odd. In December 1949, Satya Narayan was found digging this very land for construction of structures. Protest first oral and then written followed. The written one was by a notice dated February 4, 1950, Ex. 2, the acknowledgment of which is Ex. 3. But the only result such protest yielded was the completion of the construction begun earlier. Hence the suit by the company on July 4, 1953, against Satya Narayan and also against its four vendors, said to be in collusion with the former, (i) for declaration of its title to the land in controversy, (ii) for recovery of khas possession thereof and (iii) for a mandatory injunction too for removal of the constructions made.

All the five Defendants resisted the suit.

The plea they took was of the same pattern. In 1933 34 one Dhangi Baori started living in part of the disputed land, with the permission of Basudeb Thakur, by constructing a house upon it. In 1938, Basudeb granted similar permission to Satya Narayan. In 1939, Satya Narayan raised pucca structures here. More, he purchased Dhangi Baori''s structures and got into the whole of the land. But in 1940 again A. Appa Rao and K. Surya Narayan raised kutcha structures upon part of the land and started living here with the permission of Basudeb. On September 3, 1948, the Company purchased the whole of the land with notice of such structures and occupation.

It is unnecessary to restate the questions of fact now either finally disposed of or no longer insisted upon. On the questions that now remain, the findings come to by both the Courts are placed below alongside one another:

Trial Court. Lower Appellate Court.

(1) K. Surya Narayan and A. Appa Rao are necessary parties in whose absence the suit is bound to fail. (1) The onus which was on the Defendants to prove that K. Surya Narayan and A. Appa Rao were on the disputed land, and, therefore, necessary parties, remained undischarged. Even if they were there, the suit as a whole would not fail. But the decree would not bind them.

(2) The basic instrument of the company''s title, viz., the sale-deed of September 3, 1948, has not been proved. That remaining unproved, the company''s title to the disputed land remains unproved too. (2) The sale-deed has been proved, as also the title of the company, secondary evidence of the sale-deed having been too good an evidence in the circumstances.

(3) Satya Narayan took bando-bast from Basudeb and had been living on the disputed land for 18/19 years, thereby extinguishing the company''s title. (3) Satya Narayan was a mere licensee, whose licence stood determined so soon as the grantor had made an assignment of the subject-matter thereof.

(4) Because of the delay of more than three years in bringing the suit on July 4, 1953, from the service of the notice dated February 4, 1950, and also because of the structures on the disputed land valued at Rs. 35,000, a mandatory injuction was out of the question. (4) No question of compensation was raised at the trial and could not, therefore, be raised in appeal for the first time. Hence, it was left open. But a mandatory injunction there must be.

From the findings catalogued above, it is plain that the trial Court dismissed the suit and that the lower appellate Court decreed it, reversing the trial Court.

This is why Satya Narayan came up to this Court in second appeal which, on his death, is being prosecuted by his heirs. The vendors of the company figure as Respondents 2 to 5 in this appeal. But they have not entered appearance.

Mr. Mitter, the learned Advocate for the Appellants, opens the appeal on four points:

First, Satya Narayan''s has been an irrevocable licence, assuming him to be a licensee.

Second, the appellate judgment, reversing the finding of the trial Court that the company''s sale-deed of September 3, 1948, has not been proved, is not a proper judgment of reversal.

Third, the appellate Judge has erred in law in throwing the onus upon the Defendants to prove that Appa Rao and Surya Narayan are necessary parties to the suit.

Fourth, the grant of a mandatory injunction by the appellate Court is not sustainable at law.

I have been addressed on no other point. As I proceed to notice Mr. Mitter''s contentions in support of these points, I shall notice too the contentions in reply of Mr. Guha who appears for the company, the first Respondent before me, save as will otherwise appear in the following lines.

The third point, which I take up first, appears to have been raised in vain. Satya Narayan by para. 3 of his written statement and the rest of the Defendants by para. 4 of their joint written statement raised this matter of non-joinder of Appa Rao and Surya Narayan, necessary parties though they were, according to them. So they did under Order 8, Rule 2, of the Procedure Code. They, therefore, desired the Court to give judgment as to their legal right of having the suit dismissed for non-joinder of these two necessary parties. And such legal right depended on the existence of this fact of Appa Rao and Surya Narayan having been on the disputed land a fact which they asserted. So, they were bound to prove the existence of this fact: Section 101 of the Evidence Act 1 of 1872. The learned appel late Judge, therefore, appears to be plainly right in holding that the burden of proof was on the Defendants who were to prove the existence of this fact the fact of Appa Rao and Surya Narayan having been necessary parties. It only remains for me to record that when I give out my mind as above, Mr. Mitter is good enough not to press this point which must, therefore, be found against the Appellants.

Equally ineffective is the second point on which this appeal has been opened. With all the infirmities, there appears to be no Gupta and record-keeper Sailendra Kumar Himangshu Bimal Das Gupta and record-keeper Sailendra Kumar Ghosh, the company''s two witnesses and employees that the original sale-deed is with the World Bank in Washington. And what are the infirmities? Here is one specimen. The company has a list of documents in the custody of the World Bank. That list is not forthcoming. For this the company is blameworthy, no doubt; and its staff does need a little shaking up. But by no means does it disprove the sale-deed being in the custody of the World Bank. What is more, that every bit of the company''s properties is mortgaged to the World Bank is a matter of common knowledge, of public history and of universal notoriety, which must be so well-known to a Judge unless he deliberately chooses not to know what is happening around him. So, a Judge can very well take judicial notice of such custody u/s 57 of the Evidence Act read with the International Monetary Fund and Bank Act, 1945, originally Ordinance No, 47 of 1945. Be that as it may, the last Court of facts, relying on the evidence of these two witnesses, has called in aid Section 65(a) ibid, in so far as it makes secondary evidence of the contents of the sale-deed receivable in evidence, when the original deed itself appears to be in possession of a person (here the World Bank) out of reach of, or not subject to the process of the Court, as also the like provision in Section 66, proviso 6 ibid., dispensing with a prior notice. I do not see any error of law lurking here. Nor does Mr. Mitter. What he makes a point of is the manifest error on the part of the appellate Judge in thinking that Moti Bala Debya, wife of Basudeb, did not admit the execution of the sale-deed before the sub-registrar on commission. Had the Judge taken the trouble of examining the certified copy of the sale-deed with a little more care, he would have come across trie sub-registrar''s endorsement on its second and third pages in token of admission by Moti Bala Debya of the execution of the sale-deed in the course of her examination on commission. That is followed by the usual certificate of registration which is per se evidence of the fact that such execution by Moti Bala Debya did occur. See Sections 60, 59, 58 of the Registration Act 16 of 1908. Thus, Mr. Mitter is right. The Judge is in error. Record-keeper Sailendra is also in error when he says that Moti Bala was waiting near the registry in a car. If Moti Bala had gone so far as that, why a commission and why the endorsement by the sub-registrar that he had visited her residence on September 4, 1948, when the sale-deed was put to registration? The obvious explanation for this error on the part of record-keeper Sailendra appears to be that he was giving his evidence on November 27, 1957, of an event which had taken place more than 9 years back on September 3, 1948, the date of execution of the sale-deed. He was not present at the time of registration next day, September 4, 1948. Head surveyor Himangshu was. Let this error 1 remain. If this manifest confusion be elevated to the height of falsity, let that remain too. Law is not: false in one thing, false in everything. But remains also the evidence of head surveyor Himangshu and record-keeper Sailendra, the former saying that he was present at the time of registration and the latter saying that he was present at the time of execution of the sale-deed, the true copy of which is Ex. 1. If upon evidence, the last Court of facts finds as a fact, as it does, that the secondary evidence proves the sale-deed, it is not for me, sitting in second appeal, to interfere with that finding, even though the said Court falls into an error of fact about admission by Moti Bala of her having executed the sale-deed in the course of her examination on commission before the sub-registrar. The trial Judge took a most unrealistic view of the evidence. The appellate Judge viewed the evidence as a prudent man would, emphasising rightly enough that, though Moti Bala and her three sons contest the suit, none of them pledge their oaths to deny the execution of the sale-deed. So, it cannot be said that his has not been a proper judgment of reversal. And the second point on which the appeal has been opened fails too.

Now to the first point on which I have had the advantage of hearing able arguments both from Mr. Mitter and Mr. Guha. Mr. Mitter''s approach is twofold. First: assuming Satya Narayan to have been a licensee, it is a case of an irrevocable licence. Second: a tenancy is discernible too. Mr. Guha answers: Satya Narayan cannot be regarded as either.

Let the law on licence, in so far as it is material here, be grasped first. I can do works and expend money on my own land. In so doing, I do not act upon a licence. I do not, because, it is my land and that I can do without anyone''s licence: Lord Maugham''s judgment in AIR 1936 77 (Privy Council) . But when I want to do the same on my neighbour''s land, I do need his licence. Because without his licence, my act will be unlawful. Even so, his licence passes no interest in the land which is his and which remains his, in spite of the licence he has been good enough to grant me. Hence, to quote from the judgment of Lord Denning in Errington v. Errington and Woods (1952) 1 K.B. 291, the classic definition of a licence was propounded by Vaughan, C.J. in the seventeenth century in Thomas v. Sorrell (1973) Vau 371:

A dispensation or licence properly passeth no interest nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.

Section 52 of the Easements Act 5 of 1882 is merely a rehash of this classic definition with certain additional trappings, such as the licence must be in favour of a person or persons certain, the right conferred by the licence shall not amount to easement-trappings which explain themselves. A grant and an uncertain person or an indeterminate body of persons go ill together. They cannot co-exist. Grant to whom then? A grant must necessarily be to a specified grantee or grantees. Again, licence, as the very word implies, originates in permission, whereas easement originates in grant or prescription: per P.B. Mukharji, J. in Nalin Ghosh v. Ananta Pada Modak (1965) 69 C.W.N. 503. That, then, is licence.

A licence is of two kinds revocable and irrevocable. If revocable at will and a licence, as a general rule, is revocable at the will of the grantor, the licensor has the option of revoking it, without being called upon to pay compensation to the licensee who must remove what he has raised. But if the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution, just what Section 60, Clause (b) of the Easements Act 5 of 1882 prescribes, the licence becomes irrevocable.

Can an irrevocable licence be revoked? In 1910, Sir Asutosh Mookerjee, sitting with Carnduff, J., answered the question in the affirmative and said that, on payment of compensation to the licensee, even the irrevocable licence could be revoked: Surnamoyee Peshakar v. Chunder Kumar Das (1910) 12 C.L.J. 443. In 1913, his Lordship, sitting with Beachcroft J., reiterated it, adding that until the licensee had been indemnified, the licensor could not revoke the licence on the faith whereof works of permanent character were executed: Moti Lal Rai v. Kalu Mondar (1913) 19 C.L.J. 321. The reason for the rule is that it does justice to both to the licensor in giving him back what is his and to the licensee in indemnifying him for the loss which would otherwise have been his. Twenty one years later, however, namely, in 1934, Sir Shah Muhammad Sulaiman, C.J., sitting with Sir Lal Gopal Mukherji, referred to these two Calcutta cases, commented on a certain amount of contradiction in saying that an irrevocable licence could be revocable on payment of compensation and answered the question in the negative:

...if the licensee acting upon the license has executed a work of permanent character and incurred expenses in the execution, the license becomes irrevocable and it is no longer open to the licensor to revoke it by offering to pay compensation for the buildings and the materials. Mathuri v. Bhola Nath I.L.R.(1934) All. 975.

Even so, an irrevocable licence of the type set out above is not dealing with the effect of an express contract between the parties. Consensus of mind between them is not simply there. It is dealing instead with the consequences to follow from a certain conduct on the part of the licensee which if done on the land of the licensor might well give the licensee rights against him. In other words, the conduct of the parties may be such that equity will presume the existence of such a contract as a matter of plain implication: 3 CWN 502 (Privy Council) and Canadian Pacific Ry. Co. v. The King (1931) A.C. 414.

Again, there are cases in the books showing fusion of licence and contract. Errington v. Errington and Woods (Supra), is one such. In 1936, Mr. Errington purchased a house as a home for his son who had recently married the principal Defendant. The purchase was financed through a building society with a payment by Mr. Errington of �250 down and the balance of �500 on mortgage. With the daughter-in-law Mr. Errington was on terms of affection. He handed over the building society''s book to her and said: ''Do not part with it. The house would be yours and your husband''s when you had paid the last instalment on the mortgage.'' The instalments were 15s. 0d. a week. But the conveyance was and remained, in Mr. Errington''s name till his death in July, 1945. By his will he left all his property including the house in question to his widow. The son left his wife and went to live with his mother who was keen on getting her daughter-in-law out of the house and raised an action claiming possession.

On these facts the relationship of the parties the suing mother-in-law and the sued daughter-in-law came up for construction. Three possible legal constructions there could be. One, the couple were tenants at will paying no rent. But the essence of tenancy is that it is determinable by either party on demand. And Mr. Errington could not eject the couple as long as they paid the instalments regularly to the building society. Two, the couple were tenants at 15s. 0d. a week which for convenience was paid to the building society instead of to Mr. Errington. But the couple were not bound to pay it. If they did not pay, Mr. Errington could neither sue nor distrain for it. Three, the couple were licensees, having a permissive occupation short of a tenancy, but with a contractual right, or at any rate an equitable right, to remain so long as they paid the instalments, which would grow into a good equitable title to the house itself as soon as the mortgage was paid. This third construction was held to be the right view of the relationship of the parties. So, here is a case of blending of a licensee''s right with a contractual right.

Since execution of works of permanent character on the faith of the licence makes a licence irrevocable, the expression permanent character needs an explanation. Pucca and permanent are not synonymous terms. To take an illustration, which at once comes to one''s mind a new railway station with all the indicia of a pucca construction was created near about Durgapore during a certain session of the National Congress. But it was dismantled soon after the session was over. So the idea behind such construction was an ad hoc building for the convenience of the delegates attending the session. It was not therefore a work of permanent character, a pucca construction though it was Similarly, kutcha and temporary are not synonymous terms either. Our brothers and sisters in the village live in mud huts kutcha structures all from generation to generation, building that little with just the idea that they, their children and children''s children will live there and die there too. Ergo, they are works of permanent character, kutcha structures though they are. The test, therefore, is not whether pucca or kutcha materials form the ingredients of the structures, but whether the structures have been raised with the idea of retaining them or of demolishing them after a certain object is achieved. See Kamala Kant Misra v. Kishun Ali. (1956) A.L.J. 871.

The Easements Act 5 of 1882 has no operation in this State. But the principles upon which several of its provisions are founded do operate here too as principles of justice, equity and good conscience.

I owe it to Mr. Mitter to record that all the cases I have gone by in the foregoing lines in enunciating the law on licence, in so far as it affects the litigation in hand, are the cases he has been good enough to place before me.

To sum up, the law applicable here, then, boils down to this:

A. The very concept of licence connotes the doing on another''s land some work which, but for the licence, would be unlawful.

B. Licence, as a general rule, is revocable at the will of the grantor.

C. But if the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution, the licence becomes irrevocable.

Corollary: The licensor cannot revoke the licence on the faith whereof works of permanent character have been executed and expenses incurred, not at any rate, till the licensee had been indemnified.

D. The test of determining the works of permanent character is whether the idea of constructing them is to retain them or to demolish them after the object with which they were constructed is served, no matter that they are pucca or kutcha.

E. Consensus of mind fostering a contract is not in a licence; but conduct, implying the existence of a contract, is.

F. A licensee''s right, denoting permissive occupation short of a tenancy, may co-exist with a contractual right or equitable right to stay on under certain conditions.

Let this law be now applied to the facts here, if it is capable of being applied and that too in so far as it is possible for me to enter into the realm of facts in second appeal. If the structures on the disputed lands stand from 1939 or thereabouts, as is the Appellants case in the written statement and also at the trial, then and then only the question of licence will fall to be considered. This is, therefore, a matter which has an importance all its own. And on such an important matter, the trial Judge''s finding is:

...there is evidence of the D.Ws. (Defendants'' witnesses) to show that the defdt. No. 1 is in possession of the suit land (by raising huts thereon and living there) for 18/19 years before the institution of this suit (on July 4, 1953).... So it is palpably clear that defdt. No. 1 was in possession of the suit land before Plaintiff''s alleged purchase. p. 7 of the paper-book;

whereas the appellate Judge''s findings are such that to enter into them is to enter into a labyrinth Reversing and very rightly too, the trial Judge on the point that the possession of Satya Narayan, a licensee, will be adverse to the company, the appellate Judge finds:

I do not propose to enter into the controversy regarding the alleged purchase of her (Dhangi Baori''s) structures on the land by Respondent No. 1 (Satya Narayan)... It is immaterial whether the Respondent has structures from long before or not. pp. 18-20, ibid.

Again, a little below:

The construction of pucca structure on the suit land will not be evidence of adverse possession in view of the fact that he paid compensation to Dhangi Baori and raised pucca structures with the consent and permission of Basudeb Thakur... p. 20, ibid.

Then, in answer to a contention raised on behalf of the answering Respondent before him (Satya Narayan) that acquiescence would defeat the company''s claim for removal of the structures, even if they were raised after the company''s purchase on September 3, 1948, he finds:

The point does not arise in view of the fact that it has been found (where?) that the structures are there from before the purchase... p. 22, ibid.

No more citations (save the one below) need be made, though a few more may be made yet, from the appellate Judge''s findings which are specimens of what the findings of the lower appellate Court the last Court of facts should not be. Into what he proposes not to enter (purchase of Dhangi Baori''s structures) he does enter a few lines below with a bare observation, as the first two findings extracted out above go to show. Again, what he considers to be immaterial, namely, how long the structures are on the disputed land, he covers in the end by the remark:

It has been found that the structures are there from before the purchase of the Appellant.

by which is perhaps meant the casual observation a little earlier, while noticing the question of compensation:

A point might arise as to whether the Appellant is liable to pay compensation to Defendant No. 1 for the removal of structures which were set up with the permission of Basudeb Thakur... p. 21 ibid.

Such findings are apt to bring to one''s mind the caution given by Sir George Rankin in Ram Lal Dutt Sarkar v. Dhirendra Nath Roy (1943) 47 C.W.N. 489 (P.C.):

Since findings of fact by the lower Appellate Court are to be treated as final, they should at least be clear and specific not ambiguous or inferential.

The findings I notice here are neither clear nor specific. They are inferential and worse than ambiguous causal and somewhat contradictory swooping down here and there and hanging in the air with little to support them. No finality can attach to such findings of the lower appellate Court entitling me to decide, upon evidence on record the question as to how long the structures have been on the disputed land, as the findings of the sort in Ram Lal''s case (1943) 47 C.W.N. 489 (P.C.) entitled the High Court to decide in second appeal the question of possession and dispossession upon the evidence before it.

To do that I now proceed. Satya Narayan examined himself and two more witnesses, Lek Muhammad and Md. Eshaque. They are witnesses 1 to 3 on his behalf. The learned trial Judge accepts their evidence evidence which the appellate Judge does not take the trouble of noticing when he comes to some sort of a finding, if it can at all be called a finding that the structures have been there on the disputed land from before the company''s purchase. And what is such evidence? Deposing in Court on one and the same day (November 21, 1957), what they say stands thus:

Satya Narayan

Purchased Dhangi Baori''s ghar for Rs. 80 in 1934 or 1935. After such purchase, constructed a pucca ghar 18 or 19 years ago ''from today'', that is to say, in 1938 or 1939. The said ghar contains 10 rooms. Another pucca ghar with two rooms is there. A well and a latrine are there too.

Lek Muhammad

Satya Narayan constructed his ghar 18/20 years back, that is to say, in 1937 or 1938, when Lek Muhammad was about 20 years old. So did Satya Narayan after having purchased Dhangi Baori''s ghar with the consent of Basudev and on payment of Rs. 80 to Dhangi Baori, which he had seen. There are two pucca ghars one with six rooms and another with two big rooms. A four-roomed kutcha ghar is there too.

Md. Eshaque

Satya Narayan did construct a ghar about 18/19 years ago ''from today'', that is to say, in 1938 or 1939. Satya Narayan paid Rs. 80 to Basudeb and thereafter demolished Dhangi Baori''s ghar. More, he (Eshaque) witnessed the counting of the currency notes at a distance of 60/70 feet, the back of Basudeb having been in his front. And he heard the sound made by the counting of notes.

[What much of a sound does such counting make?] Then, he goes back upon his earlier evidence and says:

Satya Narayan did not demolish the house of Dhangi; it was removed by Dhangi herself.

Purchase indeed by Satya Narayan of Dhangi''s house which was removed by her, the seller and consideration for which (Rs. 80) was paid not to her, the seller, but to Basudeb, a stranger to the sale.

Such then is part of the trio''s evidence which the trial Judge accepts and the appellate Judge does not touch even. And accepting such evidence, the trial Judge says that Satya Narayan

is in possession of the suit land for 18/19 years before institution of this suit (p. 7 of the paper-book)

on July 4, 1953, which takes Satya Narayan''s possession to 1934 or 1935. This is much more than what the witnesses, Lek Muhammad and Eshaque, themselves say and what Satya Narayan''s case is in the written statement (para. 8): that he started living here in 1938-1939.

There is a lot more yet. Satya Narayan cannot name Eshaque as one of the persons present at the time of the so called purchase of Dhangi Baori''s ghar, though Eshaque is definite that he has known Satya Narayan for the last 18/19 years, that is to say, from 1938 or 1939. Lek Muhammad''s brother (since dead) and Satya Narayan used to work in the melting shop at Burnpur and through his brother he had come to know Satya Narayan. But in 1939 or thereabouts when Satya Narayan came in and Dhangi Baori went out, neither Satya Narayan nor Lek Muhammad''s deceased brother worked in the melting shop at Burnpur. According to Lek Muhammad, his brother did nothing else but sell milk before that and Satya Narayan used to ply a taxi. But, according to Satya Narayan, both he and Lek Muhammad''s brother used to serve the Tatas and hence they came to know one another. A brother (Lek Muhammad) however does not know as much. He knew his brother selling milk only and not serving the Tatas. There is something funnier still. Satya Narayan, aged about 45 years, asks the Court to believe that he has been serving the melting shop at Burnpur for the last twenty years, after having put in 18 years'' service under the Tatas. It looks therefore that he started serving under the Tatas at the age of 7, a raductio absurdum. What has happened is that, in order to keep up the appearance of Satya Narayan and Lek Muhammad having been old acquaintances since 1938 or thereabouts, both resorted to lies with which, however, they could not keep pace, no matter what concession you make for the levity with which people of this type speak of their ages. If the Courts of facts had condescended to sift such evidence, they too would have come to the same conclusion to which I am coming: that both are witnesses of untruth, Satya Narayan saying falsely that he had made the constructions in 1939, or thereabouts, Lek Muhammad falsely supporting such story and both vying with one another in falsely establishing their acquaintance from 1938-39. Upon the whole of the evidence, it is impossible to find as a fact that they had even known one another in 1938 or thereabouts. That being so, Lek Muhammad is a singularly unfit witness to depose to what he is made to depose about. And Eshaque eliminates himself as a wholly undependable witness by saying that Satya Narayan had paid Rs. 80 to Basudeb and that Dhangi Baori had removed her ghar, though Satya Narayan and Lek Muhammad will say that Dhangi was paid Rs. 80 and that her ghar was purchased thereby. The appellate Judge, constituting the last Court of facts, omits outright to consider such wealth of material evidence on record and necessarily sufficient evidence too for determining the issue of fact: did Satya Narayan make the constructions he says he did in or about 1939? And what an issue of fact: To determine that is essential for disposal of the appeal in hand. Worse, that issue of fact has been wrongly determined (if determined at all) by the lower appellate Court by reason of such omission of the most material of material evidence, thereby making a substantial error of law and giving me jurisdiction to determine an issue of fact even, u/s 103 of the Procedure Code, Ram Lal''s case (Supra) apart.

Omissions as these are not exhausted yet. They persist. Satya Narayan says, he purchased Dhangi Baori''s ghar in 1934 or 1935 and constructed a pucca ghar (which has 10 rooms) in 1938 or 1939. Leaving aside the variance with his pleading, when he constructed the other pucca ghar with two rooms he does not say. In his cross-examination he improves upon such evidence in chief. Within six months from the departure of Dhangi, he constructed a kutcha ghar too. Lek Muhammad and Eshaque speak of construction by Satya Narayan of one ghar only. Whereas Lek Muhammad speaks of 6 rooms in the pucca ghar on the south, 4 rooms in the kutcha ghar on the north and 2 big rooms in the pucca ghar on the north too. Eshaque does not bother about the number of rooms. He speaks generally of Satya Narayan having constructed pucca and kutcha ghars at the same time, construction having begun within 3/4 months after the purchase and concluded within 6/7 months: vide his cross-examination. Thus he departs from what he says in chief of Satya Narayan having constructed one ghar. He departs too from what Satya Narayan says that he started construction one month after the purchase so-called. Like Lek Muhammad, he too traces the source of his acquaintance, not with Satya Narayan, but with Lek Muhammad in order to make it appear that he, an old acquaintance, is a natural and competent witness. His sister''s husband and Lek Muhammad''s brother again were ''thick'' with one another. From time to time, Lek Muhammad used to put up with his brother and he used to put up with his sister''s husband. Hence they came to know one another for the last 20 years. Lek Muhammad, however, will not say that much. He has known Eshaque for the last 7/8 years, though he knew his name for the last 17/18 years. Again, Lek Muhammad is so intimate with Satya Narayan that each has ingress into the other''s zenana. Yet such a one does not corroborate Satya Narayan about the construction of a pucca ghar with ten rooms in 1938 or 1939. He speaks instead of three ghars two pucca, one with 6 rooms and another with 2 big rooms and one kutcha, with 4 rooms. Which ghar was constructed when is anybody''s guess.

Omission of a paramount consideration is discernible too. Basudeb, let it be recalled, was the original owner of the land in controversy here. After his death in 1948, his wife and three sons sold it to the company on September 3, 1948, reciting in the sale-deed that the land was free from any manner of an incumbrance. These vendors are Defendants 2 to 5 participating in the trial by a separate written statement and resisting the suit by a little cross-examination too. They espouse the cause of Satya Narayan. Yet such ones do not examine themselves to say that Satya Narayan has been on the land by constructing huts in or about 1939 as a licensee-This goes heavily against Satya Narayan having constructed huts in Or about 1939.

Then, there is the telling evidence of head surveyor Himang-shu Bimal Das Gupta:

After Kobala purchase we gave boundary pillars on behalf of the company.

Again,

The suit land was vacant at the time of purchase by the Plaintiff company.

The appellate Judge omits to consider such material evidence. The trial Judge attaches no importance to it. Because the company does not produce papers (which it has) in token of such pillars having been raised. Since the appellate Judge had made a wrong determination; of the issue of fact I am on now whether or not the structures were there before the company''s purchase by reason of such omission, Section 103 of the Procedure Code gives me jurisdiction to determine this issue, even though this is an issue of fact. And I have proceeded to. determine it. For non-production of the necessary papers, the company deserves to be condemned again. But, u/s 114 of the Evidence Act 1 of 1872, the Court may draw a presumption adverse to the company. Not that the Court must. Upon the whole of the evidence here, a prudent man cannot draw a presumption adverse to the company, unless he forsakes his prudence. So, head surveyor''s evidence on oath stands. Once it does, the finding must necessarily be that these structures came to be erected after the company''s purchase on September 3, 1948, just what head surveyor says in his evidence evidence which appears to be worthy of credence.

The notice dated February 4, 1950, Ex. 2, lends assurance to the conclusion just reached. The company took the precaution of sending such notice by registered post with acknowledgment due. The acknowledgment came back in the usual course bearing a signature which reads: Satya Narayana Pattya, not Patel. Satya Narayana denies this to be his signature in the course of his evidence. The trial Judge accepts this denial and finds the service of notice to be ''false and got up'' (p. 8 of the paper-book). The appellate Judge finds ''the question of notice'' to be ''quite immaterial'' (p. 20, ibid.) The trial Judge has succeeded in coming to the finding about the service having been ''false and got up'', only because he has suffered himself to be untramelled by a crowd of decisions on the point, the most important of which is the Privy Council decision in Harihar Banerji v. Ramsashi Roy (1919) 23 C.W.N. 77. Adapting a little the observations of Lord Atkinson who delivered the judgment in that case, I say:

There is nothing whatever to show that the company was actuated by a desire to play any trick, or effect any fraudulent purpose with this notice. Here is a letter properly directed, containing the requisite notice. It is proved to have been put into the Post Office. It is, therefore, presumed that the letter reached its destination at the proper time according to the regular course of business of the Post Office and was received by the person to whom it was addressed. That presumption applies with still greater force to the letter here which the company has taken the precaution to register. That presumption is not rebutted but strengthened by the fact that a receipt for the letter is produced signed by or on behalf of the addressee.

Just so here. Satya Narayana Pattya is either Satya Narayan Patel or somebody else. Be he one or the other, the strengthened presumption stands. To quote Lord Atkinson again, it is an entire mistake to suppose that the addressee must sign the receipt for a registered letter. Denial by Satya Narayan? One has only to compare the hand writing in the acknowledgment, Ex. 3, reading Satya Narayan Pattya, with the admitted signatures of Satya Narayan at the foot of his deposition and in the written statement, in order to be convinced of the fact that this sort of a bare denial cannot shake the presumption.

The trial Judge has and the appellate Judge has not, attached much too much value to loose statement by head surveyor Himangshu:

Defendant No. 2 (Basudeb''s son) gave lease to Defendant No. 1 (Satya Narayan) in 1939.

a statement which makes no sense, when it is remembered that Basudeb was alive in 1939 to die only on April 30, 1948. [See para. 8 of the written statement of Basudeb''s wife and sons; also the evidence of Satya Narayan: ''Basudeb Thakur possibly died in 1948.''] So, no question can there be of the son granting a lease when the father is alive. And that is not Satya Narayan''s case either. Hence, this unmeaning statement of a head surveyor (Himangshu), who, in the very nature of things, cannot have any personal knowledge of what he calls the lease, may be kept in its proper place so as not to influence the decision of this litigation in any manner whatever.

In view of all that goes before, I am unable to find as a fact that Satya Narayan had had his structures on the disputed land before the company''s purchase on September 3, 1948. Upon the whole of the evidence, I find instead that Satya Narayan intruded upon the land after September 3, 1948 and erected his structures thereafter, as stated by head surveyor Himangshu.

Satya Narayan, therefore, degenerates himself into a trespasser, not even a licensee. Accordingly, the somewhat faint contention about Satya Narayan''s tenancy recedes into the background all the more. Still, when the contention is there, I meet it, assuming almost all the time the truth of what Satya Narayan pleads, though in reality it is the exact opposite of truth.

The case made out in the written statements of Satya Narayan and also of the four vendors of the company militates against the plea of tenancy. In para. 8 of his written statement, Satya Narayan, Defendant No. 1, speaks of his having gone into possession of the whole of the land with the permission and consent of Basudeb by having raised kutcha-pucca structure in 1939. In para. 9, he says of Surya Narayan and Appa Rao having been given permission by Basudeb to live in part of the whole land he went into possession of, in 1939 and having been living there on that footing since 1940. The heirs of Basudeb, Defendants 2 to 5, who are the vendors of the company, say as much in paras. 5 to 7 of their written statement. It is impossible to spell out a tenancy from such averments, even though in para. 9, such heirs and vendors aver that only the landlords interest was sold to the company a fact which is patently untrue and proved to be untrue by the sale-deed itself. And then the tenancy is a queer one for which Satya Narayan had not paid rent to anybody ever, as he himself admits in his evidence. He only paid a pronami of Rs. 10 to Rs. 20 a year to Basudeb till 1948, for which, of course, no receipt is forthcoming, nor any evidence in support from Basudeb''s heirs, contesting Defendants though they are. And after Basudeb''s death he discontinued paying this little too. Such pronami can hardly be equated with rent. Worse, the story of such pronami is a mere story which cannot carry conviction. Mr. Mitter reminds me that there are tenancies, with no rent, but burdened with a liability for assessment of rent: Khajna Yogya as it is called. No doubt, that is true. But where is the pleading to that end? That, indeed, is not even Satya. Narayan''s case.

In the background of these facts, clear and loud, the authorities Mr. Mitter wants me to go by do not reach the case in hand. In Arpan Ali v. Jnanendra Kumar Pal Chowdhury (1945) 49 C.W.N. 346 : I.L.R.(1945) Cal. 361, there was consideration for the licence and what is more, such consideration had moved both from the licensor and the licensees, the licensees, fishermen all, having the benefit to sell the fish in the licenser zamindar''s market and the licenser zamindar in turn having the benefit of so many fishermen obliged to sell the fish in his market every day, morning and evening, as provided for by the ekrarnamah, an agreement in writing, leading thereby to the market''s improvement. But there J was no contract that the licence was not to be revoked at all or for a certain time. On the contrary, this Court in exercise of its powers u/s 103 of the Procedure Code entered into evidence on record only to find that there was sufficient evidence, coupling with sufficient cause, justifying the revocation of the licence, even it was not revocable at will. In the case before me, no question can there be of a bilateral consideration. Consideration, if any, was unilateral, as Mr. Guha submits, Satya Narayan alone receiving benefit, with no benefit to Basudeb, even if the most of what Satya Narayan says be taken as true, which, of course, it is not. The story of pronami looks like a false one and an afterthought, nothing like it having been pleaded in the written statement, or stated by Basudeb''s heirs. and at all events, Arpan Ali''s case (1945) 49 C.W.N. 346 : ILR (1945) Cal. 361 has nothing to do with a tenancy.

O.C. Ganguli v. Kamalpat Sing Dugar (1947) 51 C.W.N. 208, results in a find of the tenancy instead of a licence on considerations which, for a clearer understanding, may be tabulated as under:

A. Will the Defendant O.C. Ganguli paying a monthly sum (not rent, a word which is avoided in the document) to the Plaintiff Dugar make it a tenancy? No. because a licence may be for consideration too.

B. Will the stipulation that the Defendant was to vacate by a date certain, to wit, by December 31, 1943, make it a tenancy? No. no conclusive test that. For, a licence may very well be for a term too.

C. Will the Defendant''s liability to pay taxes make him a tenant? No. that is not decisive, though such liability suggests a tenancy.

D. What is decisive is that the ground-floor (the Defendant was in occupation of in part) had vested, in the first instance, in the Plaintiff qua tenant and out of that exclusive right of occupation he carved out a portion, making a re-grant thereof, to the Defendant who had had an exclusive right of occupation pro tanto.

Therefore, it was held by Chakravartti, J. (as his Lordship then was)

that O.C. Ganguli was a tenant, not a licensee. This decision or its principle cannot be translated to the case in hand. No payment of a sum here, the belated version of an annual pronami having been dismissed as totally unworthy of credence. No stipulation here to vacate by a date certain. A mere permission by Basudeb allowing Satya Narayan to live on the land at his (Basudeb''s) pleasure, if what Satya Narayan pleads and says is true, which it is not. No liability here too for payment of taxes a test which suggests a tenancy. About exclusive possession, what Satya Narayan says of having such possession been dated from 1939, he unsays by bringing Appa Rao and Surya Narayan on the land in dispute in 1940, assuming this to be true and stretching so much in his favour. On top of that, the crucial test of exclusive possession, which was good law some one hundred years ago, is no longer on that high pedestal. As Lord Denning puts it in Errington''s case (Supra)

...although a person who is let into exclusive possession is prima facie to be considered to be a tenant, nevertheless he will not held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held to be a licensee only.

And what was Satya Narayan granted, as he pleads and says, but a personal privilege, with no interest in the land? So, a tenant he could not be.

Lord Denning reiterated it some eight years later on December 16, 1959, in Isaac v. Hotel De Paris Ltd. (1960) 1 All E.R. 348, where was no concluded contract, but where were instead exclusive possession, payment and acceptance of rent, payment of other disbursements, etc., pending the execution of a formal contract. Still all the indicia were not found. Upon the circumstances and the conduct of the parties was found instead a privilege only till the formal contract was to be executed. But it was executed never. It fell through. Therefore, notice to put the occupier out, though not sufficient to end a tenancy, was regarded as quite sufficient to end the licence. Even acceptance of rent by the licenser was dismissed as a matter of no moment. Because it was better for him to have something in hand than lose all in the long-drawn course of Court proceedings. In this case and in the earlier one: Errington''s case (Supra), Lord Denning went by the golden rule laid down by Lord Greene, M.R., in Booker v. Palmer (1948) 2 All E.R. 674, 677:

There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships when the circumstances and the conduct of the parties negative any intention of the kind.

And what were the circumstances? For duration of the war, the evacuees were given permission to stay in a cottage rent free. Exclusive possession was theirs. Still they were held to be licensees, not tenants.

Apply this golden rule to the facts here. Satya Narayan says to Basudeb: ''May I live on your land?'' Basudeb says: ''Do''. No payment ever save a pronami varying from Rs. 10 to Rs. 20 a year, which it is difficult even for credulity to swallow. After Basudeb''s death on April 30, 1948, to the sale of the land to the company on September 3 following, nothing is paid. Laksmi Narayan, a son of Basudeb and Defendant No. 2 and Satya Narayan, co-workers in the same department, are on ''friendly terms''; so neither Basudeb demands any sum of Satya Narayan, nor Satya Narayan makes any payment to him. That is what Satya Narayan says in his cross-examination. Do such facts and circumstances impute intention to enter into legal relationship? On the contrary, they negate such intention. Permanent construction? I am coming to it soon enough. [See para. 43, infra].

In Associated Hotels of India Ltd. Vs. R.N. Kapoor, , the main point for decision was if certain spaces in the ''Ladies and Gents'' cloak rooms of the Imperial Hotel, for which R.N. Kapoor was paying initially Rs. 800 a month and subsequently Rs. 700 a month and carrying on the business of a hair dresser was to be treated as a room in a hotel within Section 2, Clause (b) of the Delhi and Ajmere-Merwara Rent Control Act 19 of 1947, placing a room in a hotel outside the said Act. S.K. Das J. and Sarkar J. (as their Lordships then were) held that the space did constitute a room in a hotel. Subba Rao J. (as his Lordship then was) held the contrary. But, R.N. Kapoor was there by virtue of a deed dated May 1, 1949, using phraseology appropriate to a licence. Sarkar J. did not consider it necessary to express any opinion on the construction of this document. But Subba Rao J. held and S.K. Das J. agreed with him that it was a lease, though masquerading as a licence. In doing so, his Lordship referred to Errington''s case (Supra) as also to another decision of the Court of appeal, Cabbv. Lane (1952) 1 All E.R. 1199 and considered the following propositions well-established:

A. Prefer the substance of the document to the form.

B. Gather the intention of the parties the real test in such matters.

C. Does the document create an interest in the property? If it does, it is a lease.

D. Does the document only permit another to make use of the property, of which the legal possession continues with the owner? If it is so, find a licence.

E. Exclusive possession of the property conferred? Then, prima facie the grantee is a tenant.

F. But weigh the circumstances. Do they negative the intention to create a lease? If they do, find a licence, exclusive possession notwithstanding.

I have before me pleadings and oral evidence, no document. Even at their face value, they attract the principle of proposition D above.

A bare permission by Basudeb to Satya Narayan to use the land, the legal possession of which continues with Basudeb and after his death, with his heirs who, by virtue of such legal possession and ownership, sell the land to the company. On proposition E above: the test exclusive possession, Satya Narayan himself undoes his case. Surya Narayan and Appa Rao were let in, as he says, by Basudeb, to occupy part of the land Basudeb had permitted him to live in. What remains then of exclusive possession? [See para. 35 ante : also para. 37 ante and the portion marked A in particular.]

Only another case Mr. Mitter refers me to in this connexion remains to be noticed. That is Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, , which also holds, inter alia, that the key to such a matter licence or lease is the intention of the parties. More, there is no royal road to get to know such intention except through all the circumstances and the conduct of the parties, no less through all the provisions of a document, when there is one. Again, exclusive possession, without more, is not conclusive evidence of there being a lease. If coupled with an interest in the property a lease is there and not a licence. To say that, from Basudeb, Satya Narayan had acquired an interest in the land is to say the unsayable. His was a permissive occupation only with no manner of an interest in the land, even if all he says be regarded as true.

The conclusion I have, therefore, come to is that, put at its highest and on a most generous assumption (para. 24 ante), Satya Narayan was not a tenant but was a mere licensee. In reality, he was not even that. He was an intruder upon the land after the company''s purchase on September 3, 1948 (para. 34 ante).

Can it be said of such a one (assume, he is a licensee), that, acting upon the licence, he executed a work of permanent character and incurred expenses in the execution? What a work of permanent character means has been noticed (para. 20 ante). Grant, Satya Narayan constructed all he says he did. What was the idea behind such construction? Not that he hoped to stay on here for ever on the contrary, he knew well enough that his was a precarious stay and that he would have to quit with all his materials, so soon as it would be Basudeb''s pleasure to ordain so. Hence, no work of permanent character was all the construction he had made.

And expenses? The less said about it, the better. The learned trial Judge lays himself open to the charge of credulity by accepting glibly enough the uncorroborated testimony of Satya Narayan that he had expended Rs. 12,000 to Rs. 13,000 for raising the constructions he did constructions which would be valued at present at Rs. 35,000. The learned appellate Judge solved the problem by keeping the question of compensation open. In my judgment, the whole approach to the problem appears to be wrong, from the beginning to the end. In the first place, Satya Narayan, having been a trespasser after the company''s purchase, is not entitled to any compensation, as rightly contended by Mr. Guha. He is one who has made his. bed and must lie on it. In the second place, even if he is regarded as a licensee, though upon evidence it is impossible to regard him so, the idea behind all he raised was to take them away, the moment his licenser would ask him to do so. Where then remains the scope for compensation? In the third place, such claim was never made in the defence presented. Therefore, as Viscount Dunedin put it in AIR 1930 57 (Privy Council) , no amount of evidence can be looked into upon a plea which was never put forward. The trial Judge strikes no issue either on the question of exprenses and the consequential compensation.

No doubt, there are exceptions to the rule laid down by Nagubai Ammal and Others Vs. B. Shama Rao and Others, , is a case in point. There, no specific plea that lis pendens hit the sale was raised in the plaint. Necessarily, no issue was there to that end. But the Defendant went to trial with the full knowledge that lis pendens was, in fact, in issue. Upon such development at the trial, Venkatarama Ayyar, J. held, speaking for the Court:

The true scope of this rule (that ''no amount of evidence can be looked into upon a plea which was never put forward'') is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue which was not present to the minds of the parties and on which they had no opportunity of adducing evidence.

Stopping here, it is there to be seen that the question of expenses and compensation was never present in the mind of the company who had therefore no opportunity of adducing evidence thereon, as Mr. Guha rightly contends. Indeed, the trial Judge has done what the Supreme Court forbids him to do: evidence let in issues on which the parties went to trial has been made the foundation for decision of another and different issue on expenses and compensation. The appellate Judge has not done any the better by keeping open a matter which does not arise on pleadings.

To continue noticing what Venkatarama Ayyar, J. laid down as law:

But that rule (Viscount Dunedia''s rule) has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto.

Herein lies the exception which however cannot avail Satya Narayan or his heirs, the present Applicants. The company never went to trial with the knowledge that the question of expenses and compensation is in issue, in fact, though not formally framed. The company did go to the trial with the knowledge that it was the turning out of a trespasser, sought to be resisted by pleas of adverse possession and the like. As Mr. Guha pertinently submits, were the company aware beforehand of such a new plea which took it by surprise, it would have adduced evidence of the true value of the structures that stand on the disputed land.

Or take the case Mr. Mitter cites: Bhagwati Prasad Vs. Shri Chandramaul, . The facts are such that they are prone to arrest one''s attention. Chandramaul (for short CM) and Bhagwati Prasad (for short BP) are friends bound to one another in mutual affection and esteem. The version CM comes to Court with is:

As I start building a house, BP wants it, when completed, for residence. The ground-floor constructed, BP gets into it as my tenant on Rs. 150 a month. Next year I complete building the first floor. BP gets into it as well on Rs. 150 a month more as rent. Two years later I complete building the second floor which also BP takes on a further rent of Rs. 150 a month. Therefore, BP becomes my tenant of the whole house on Rs. 450 a month. And he continues paying rent for some four years. Therefore he ceases paying rents. Hence my suit for ejectment of BP, arrears of rent and future mesne profits.

The version BP tells the Court is otherwise:

True, the land over which the house stands is CM''s. But I built the house, not CM who had no funds to go in for a construction as this. I had expended Rs. 32,000 odd to raise the house. I went into possession too. More, I was to occupy it until Rs. 32,000 odd was repaid by CM. Therefore, CM can get neither ejectment nor rent.

The trial Judge disbelieves BP''s version. He disbelieves too CM''s version about rent. But he finds the relationship of landlord and tenant between the parties, assesses the reasonable rent to be Rs. 300 a month, awards past rent and future mesne profits at that rate and decrees the suit so. On appeal, the High Court disbelieves, as the trial Judge does, BP''s version of having constructed the house. But it finds leave and licence instead of a tenancy and confirms the decree for ejectment, treating BP as a mere licensee. At the same time, it reverses the trial Judge on the question of past rents and future mesne profits.

Upon such facts and findings, the point raised by Mr. Setalvad on behalf of BP, the Appellant before the Supreme Court, is: the High Court has made a new case-for CM a case of leave and licence though CM''s has been a clear and specific case of tenancy between him and B.P. Gajendragadkar C.J., speaking for the Court, emphasises the importance of pleadings beyond which the parties cannot be allowed to travel, but lays down two tests where the formal requirement of pleadings can be relaxed:

A. Was the matter in substance in issue, even by implication?

B. Did the parties have opportunity to lead evidence about it?

These two tests to fit the case under discussion. The plea of leave and licence was in substance in issue by implication, no possibility even of any other possible plea being there. And both CM and BP had opportunities to lead evidence on it. Therefore, the High Court''s decree for ejectment of a licensee is upheld. and if only to complete the narration, the Supreme Court reverses the High Court on the question of future mesne profits on the ground that once you grant the relief of ejectment to CM, BP who remains in the house despite the decree must be mulcted in mesne profits or damages for use and occupation until CM gets back what is his.

What is it that I see here ensuring to the benefit of the Appellants before me? The plea of having been on the land after construction of pucca-kutcha ghars at an enormous expense and that too to the knowledge of the company, without objection, without obstruction, peaceably, on assertion of his own title and thereby having acquired a species of a novel, separate and independent right (para. 9 of Satya Narayan''s written statement), the plea of the company being entitled to a fair and equitable rent only from Satya Narayan at the prevailing rate (para. 10 ibid) etc. stare the Appellants in the face. From such pleas it is impossible to say that the question of a licence and an irrevocable licence at that was touched ''indirectly or even obscurely'' by Satya Narayan. So nothing like it was, in issue, even by the faintest of an implication. The first test the Supreme Court lays down in Bhagwati Prasad''s case (Supra), therefore, fails. No less the second test. The recorded evidence reveals, as also the record that the company had no opportunity to lead, nor did lead, evidence on this point a fact Mr. Guha rightly stresses. Now, read the following passage from Gajendragadkar, C.J.''s judgment:

What the Court has to consider...is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it?

The company knew not that the question of expenses and compensation ''was involved'' here as the trial began. And the company led no evidence. His Lordship continues:

If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter.

It is just so here: A different matter. and on this aspect, his Lordship concludes:

To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one part), the Court cannot do injustice to another.

That is exactly what the two learned Judges below have done here.

I, therefore, find the first point on which this appeal has been opened (paras. 9 and 13 ante) as under:

A. Satya Narayan has not been a tenant ever.

B. He has not been a licensee either, far less a licensee with an irrevocable licence. He has in fact teen a trespasser.

The fourth point on which I have been addressed by Mr. Mitter remains (para. 9 ante). In view of all that goes before, a mandatory injunction shall be there as a matter of course. No doubt, as pointed out by the Supreme Court in Mrs. Clubwala''s case (Supra), a licence revocable at the will of the grantor is not inconsistent with the specific provision in the licence itself for 30 days notice to vacate what is held by virtue of the licence. But why call this principle in aid here and how? A trespasser shall have the honour of being given an advance notice to quit: Again, assuming it to be a case of licence, did Basudeb give Satya Narayan the privilege of getting a prior notice. I, therefore, consider this point to be totally destitute of merit.

This appeal by Satya Narayan and since prosecuted by his heirs, on his death, therefore fails, save that the decree of the Subordinate Judge, in so far as it keeps the question of compensation open, is set aside. Subject to this modification, I dismiss the appeal with costs.