(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, as against the Judgment and Decree of the District Court, Karaikal in A.S.No.10 of 2012 dated 14.03.2014, reversing the Judgment and Decree of the learned Principal District Munsif, Karaikal in O.S.No.58 of 2008 dated 16.03.2012.)

1. The Second appeal has been preferred as against the decree and judgment passed by the District Court, Karaikal in A.S.No.10 of 2012 dated 14.03.2014.

2. The appellants are the legal heirs of the deceased defendant. The respondents are the legal heirs of the deceased Plaintiff. The deceased Plaintiff M. Govindasamy @ Govindarasu had filed a Suit in O.S. No.58 of 2008 on the file of the Principal District Munsif Court, Karaikkal for the relief of declaration and recovery of possession in respect of the Suit property. The said Suit was partly decreed. The title of the property has been declared, however, the relief in respect of recovery of possession has been rejected. Aggrieved by the said decree and judgment, the defendant has preferred an appeal in A.S. No.10 of 2012 on the file of the District Court, Karaikkal and the said appeal was allowed by setting aside the decree and judgment passed by the trial Court and the Suit was decreed on its entirety. During the pendency of the appeal, the defendant died, thereby, his legal heirs have preferred this second appeal.

3. The case of the Plaintiff before the trial Court is that the deceased Plaintiff was granted free house site patta under the Pondicherry Kudiyiruppu (Conferment of Ownership) Act by the Government of Pondicherry in R.S. No.119/5-B with an extent of 2 Ares and 91 Ca and with Patta No.41(K). In that property, the Plaintiff’s father constructed a thatched house on the eastern side and was enjoying the western half side as his garden. The deceased defendant Rukmini’s husband was also granted a similar free house site patta, which is the 3rd manai on the Western side of the deceased 1st Plaintiff’s manai. The said Jaganathan, defendant and her two sons lived in a Thatched hut in that manai. The defendant had two children and her younger son died. Thereby, her widow daughter-in-law separated from the defendant with one child and one grand daughter of said deceased younger son was living with the defendant. The deceased defendant’s elder son Kumaresan constructed a residential house in that Kudiyiruppu manai granted to Jagannathan. The deceased had only one son namely Krishnamoorthy. The deceased 1st Plaintiff and his wife alone were residing in the Manai and thatched manai belonging to the deceased 1st Plaintiff. As the deceased 1st Plaintiff was alone, aged and sick, he borrowed money from the defendant for his medical and other expenses to the tune of Rs.16,000/-. While so, the defendant could not stay with her elder son Kumaresan and due to frequent quarrel with her daughter in law, she requested the deceased 1st Plaintiff to permit her to construct a Thatched hut on the western side half portion of Manaicut, which was replaced as garden by the deceased 1st Plaintiff. Accordingly, the deceased 1st Plaintiff granted permission to put up thatched shed and she also lived there about 11 years. At the time of borrowal of loan, the defendant got signature of the deceased 1st Plaintiff in a stamp paper. Taking advantage of the permission granted to the defendant by the deceased 1st Plaintiff, the defendant is attempting to grab the Suit property, thereby, the deceased 1st Plaintiff was not willing to permit the defendant to continue her stay. Thus, the deceased 1st Plaintiff issued a Notice dated 23.07.2007 terminating the leave and license granted to the defendant. The defendant also issued a reply notice dated 28.07.2007 with false allegations. Though the defendant was in permissive possession, she claimed stating that she purchased the property. In fact, the deceased 1st Plaintiff did not sell the property. Therefore, the deceased 1st Plaintiff filed the Suit for declaration and recovery of possession as against the defendant.

4. The brief averments of the written statement filed by the defendant are as follows:

The Suit is not maintainable. The Plaintiff claims that the Suit property is a patta property granted under the provisions of the Pondicherry Kudiyiruppu (Conferment of Ownership) Act. Therefore, all the disputes on the Kudiyiruppu land disputes shall be decided by the authorized officer, Kudiyiruppu, Karaikkal. Therefore, the Civil Court has no jurisdiction. The averments that the defendant was granted leave and license and there were money transactions, are all denied as false. In fact, the defendant purchased the Suit property from the deceased 1st Plaintiff for a sum of Rs.17,500/- on 23.04.1996 and the deceased 1st Plaintiff also delivered the possession of the property. On and from the date of purchase of the property, the defendant has been under possession and enjoyment of the property and she erected fence on four sides and also constructed the building and was living thereon as owner. The deceased 1st Plaintiff also admitted the receipt of money to the tune of Rs.16,000/-. In fact, the defendant paid a sum of Rs.17,500/- towards sale consideration. Therefore, the Plaintiff is not entitled to any relief as prayed for in the Suit and the Suit is liable to be dismissed.

5. Based on the above said pleadings and after hearing both sides, the trial court has framed the following issues for trial:-

                   1. Whether the Plaintiff is the owner of the Suit property?

                   2.Whether the Plaintiff is entitled to recover the Suit property?

                   3.Whether the Plaintiff is entitled to the decree for declaration as prayed for?

                   4.To what other reliefs, the Plaintiff is entitled to?

6. Before the trial court, on the side of the plaintiffs, witnesses P.W.1 was examined and marked exhibits, Exs.A.1 to A.16. On the side of the defendants, witnesses D.W.1 and DW2 were examined and marked exhibits, Exs.B.1 to B8. The trial court after considering the evidences adduced on both sides and perusing the records, decreed the Suit in respect of declaration and rejected the claim of recovery of possession. Aggrieved by the said decree and judgment, the Plaintiffs have preferred an appeal before the First Appellate Court in A.S. No.10 of 2012 on various grounds. The First Appellate Court has not framed points for determination. However, the issues framed by the trial Court have been taken as points for determination and the First Appellate Court allowed the appeal and decreed the Suit by granting recovery of possession, as the appeal was only as against the recovery of possession and no any appeal was preferred by the defendant as against the declaration. Aggrieved by the said decree and judgment, the present second appeal has been preferred by the defendants.

7. This Court, at the time of admitting the second appeal, formulated the following Substantial Question of Law.:-

                   1. Whether the respondent / Plaintiff who allowed the appellant to erect house in the Suit property by spending huge amount without any objection is barred under Section 60 of Indian Easements act from revoking license and seek recovery of possession?

                   2. Whether the respondent, who allowed appellant to erect house in the Suit property by spending huge amount without any objection, especially when he is residing adjacent to Suit property, is prevented by Doctrine of Equitable Estoppel from seeking recovery of possession?

8. For the sake of convenience and brevity, the parties herein are referred as plaintiffs and defendants, as referred before the trial Court.

9. The learned counsel appearing for the appellants would submit that the Plaintiff, who filed the Suit for the reliefs of declaration and recovery of possession, has not proved the case through sufficient evidences. Thereby, the trial Court refused to grant relief of recovery of possession. In fact, originally the property was purchased by the defendant from the deceased 1st Plaintiff through an unregistered Sale Deed dated 23.04.1996 for a sale consideration of Rs.17,500/- and the possession was given to the defendant. The said sale deed was not registered. However, the Plaintiff admitted the receipt of money from the defendant for a sum of Rs.16,000/-. However, the trial Court has rejected the plea of unregistered Sale Deed and granted relief of declaration and since the defendant is in possession and enjoyment of the property under license, no recovery of possession has been ordered as the defendant made permanent structure. Since the possession of the defendant was protected by the trial Court, the defendant has not preferred any appeal against the declaration. However, the Plaintiffs have preferred an appeal, but the First Appellate Court without framing proper points for determination, allowed the appeal and granted recovery of possession. The First Appellate Court failed to consider that based on the permission given by the Plaintiff, the defendant constructed permanent structure and thereby, the possession has been permitted under Section 60 of the Indian Easements Act. The Plaintiff allowed the defendant, who is residing on the eastern side of the Suit property, to put up permanent structures by spending huge amount without any objection and thereby, he is prevented by Doctrine of Equitable Estoppel from seeking relief of recovery of possession. These aspects have not been considered by the First Appellate Court and thereby, the judgment and decree passed by the First Appellate Court by granting recovery of possession are unsustainable and are liable to be set aside.

10. The learned counsel appearing for the respondents would submit that the Plaintiff is the owner of the property and the same has been admitted by the defendant. The defendant has taken a plea that she purchased the property from the Plaintiff for a sum of Rs.17,500/- through an unregistered Sale Deed 23.04.1996. In fact, the Plaintiff borrowed money from the defendant. Thereafter, the defendant due to misunderstanding between her family members, sought for Plaintiff’s permission to reside in the Suit property and based on the permission granted by the Plaintiff, she has been under possession and enjoyment of the property. Thereafter, the Plaintiff asked the defendant to vacate the premises, but she failed to vacate the premises. Thereby, the Plaintiff filed the Suit. The trial Court after declaring the title, failed to order for recovery of possession as based on the license, the defendant had put up the superstructure in the property. In fact, there is no permanent structure in the Suit property. The defendant was permitted to put up a thatched shed and there are no any permanent structure in the Suit property. The defendant also has not pleaded about the construction made by her and she has only stated vaguely as she raised construction. Even according to the evidence of PW1, the defendant has only put up a thatched shed and the same cannot be treated as permanent construction. Therefore, the First Appellate Court after considering the evidences adduced on both sides, set aside the decree and judgment passed by the trial Court and ordered for recovery of possession as there are no permanent structure. Admittedly, the defendant has also not filed any appeal as against declaration decree granted by the trial Court, thereby, the defendant admitted the title of the Plaintiff. Once she entered into possession based on the license, she has to vacate the premises, after the termination of license. Therefore, the First Appellate Court has rightly ordered for recovery of possession by setting aside the judgment and decree passed by the trial Court in respect of recovery of possession. Therefore, the second appeal is liable to be dismissed.

11. This Court heard both sides and perused the entire materials available.

12. In this case, the Plaintiff has filed the Suit for declaration and recovery of possession as against the defendant alleging that the defendant is in permissive occupation and the Plaintiff permitted the defendant to put up thatched shed in the Suit property and thereafter, when the Plaintiff requested to handover the possession, she refused. Thereby, the Plaintiff filed the Suit. The defendant denied the permissive possession and according to the defendant, she purchased the Suit property from the Plaintiff for a consideration of Rs.17,500/- through an unregistered Sale Deed dated 23.04.1996.

13. It is a well settled law that through an unregistered Sale Deed, title cannot be passed, as the value of the property is more than Rs.100/-. The trial Court also granted declaration of title of the Plaintiff and failed to grant recovery of possession as the defendant is in possession based on the license and she has also put up permanent structure in the property of the Plaintiff, who has not raised any objection for permanent structure. Admittedly, there is no evidence adduced by the defendant to prove the permanent structure. Mere putting the fence and erection of thatched shed is not sufficient to hold that there is a permanent structure in the Suit property. The defendant miserably failed to prove that there are permanent structure in the Suit property, even in the pleadings, there is no mention about the permanent structure raised by the defendant. Thereby, the First Appellate Court has discussed elaborately and allowed the appeal. It is true that the First Appellate Court has not framed points for determination and has taken the issues framed by the trial Court as points to answer and the same is not in accordance with Order XLI Rule 31 of the Code of Civil Procedure. The First Appellate Court should have framed separate points for determination in terms of Order XLI Rule 31 of the Code of Civil Procedure. However, the appellants have not seriously objected and the First Appellate Court has discussed about the issues and answered the issues after discussion, thereby, it is not appropriate to remand the matter for fresh consideration by the First Appellate Court.

14. The learned counsel appearing for the appellants has relied upon the following judgments:

                   (i) Pradeep Oil Corporation v. Municipal Corporation of Delhi and another reported in (2011) 5 Supreme Court Cases 270.

                   (ii) Purushottam Das Bangur and others v. Dayanand Gupta reported in 2012 (6) CTC 344.

                   (iii) Ram Sarup Gupta (Dead) by Lrs v. Bishun Narain Inter College and others reported in (1987) 2 Supreme Court Cases 555.

                   (iv) Ganesan v. Sivaperumal @ Arjunan and 2 others reported in 2011- 1-L.W. 48.

On a careful perusal of the above judgments, it is clear that as per Section 60 of the Indian Easements Act, if any license granted and based on the license, the licensee executed work of a permanent structure and he incurred expenses in doing so, that license will become irrevocable and the pleadings should be liberally considered if the parties are aware of the plea involved and proceeded in the trial on the basis. The question of absence of that plea cannot be raised by any of the parties. Also it is clear that if any permanent structure raised and removability of the structure without causing any damage to the building, durability of the structure and the material used for erection of the same and purpose of structure are all relevant factors for deciding that whether the structure is permanent or temporary. In the case on hand, there is no evidence that the permanent structure has been erected in the Suit property and the defendant had only put up a thatched shed and thereby, the defendant failed to prove the permanent structure and the license granted is not irrevocable. Therefore, the said judgments are no way helpful to decide the case in favour of the appellants.

15. Though the First Appellate Court has not framed separate points for determination, discussed about the points and thereby, for that ground alone, the Court need not set aside the judgment of the First Appellate Court. Since the First Appellate Court has applied the law and correctly allowed the appeal, there is no perversity or illegality found in the order passed by the First Appellate Court.

16. As far as the 1st substantial question of law that Whether the respondent / Plaintiff who allowed the appellant to erect house in the Suit property by spending huge amount without any objection is barred under Section 60 of Indian Easements act from revoking license and seek recovery of possession? is concerned, according to the Plaintiff, he permitted the defendant to put up a thatched shed and the defendant is also residing there. According to the defendant, she constructed a permanent structure in the property. In order to prove the permanent structure, there are no evidences. Even according to the defendant side evidences, that the defendant has only erected the thatched shed and fenced the property. Mere putting up a thatched shed and fence are not sufficient to prove the permanent nature of structure and the defendant admitted that she raised thatched shed by covering coconut leaves and once in four years, she used to remove the same and cover new coconut leaves. The said evidence of DW1 would show that the shed is not a permanent structure. Therefore, the said structure does not come under the purview of ‘permanent structure’ and thereby, Section 60 of the Indian Easements Act is not applicable to this case. Thus, the 1st substantial question of law is answered.

17. As far as the 2nd substantial question of law that Whether the respondent, who allowed appellant to erect house in the Suit property by spending huge amount without any objection, especially when he is residing adjacent to Suit property, is prevented by Doctrine of Equitable Estoppel from seeking recovery of possession? is concerned, there are no records as to how much money was spent by the defendant and according to the defendant, Rs.60,000/- was spent for the construction, but no records have been produced to prove the same. Even according to the defendants’ side evidences, once in 5 years, she used to remove the thatch shed and to put up a fresh thatched shed and thereby, it is clear that the alleged shed put up by the defendant is not a permanent structure. Since there is no permanent structure, the Doctrine of Equitable Estoppel from seeking recovery of possession will not arise at all in this case. It is not the case of the defendant that she was permitted by the Plaintiff to reside in the property. Per contra, her case is that she purchased the property from the Plaintiff through an unregistered Sale Deed and thereby, she is in possession and enjoyment of the property, but she failed to prove her case through proper evidence. Whereas the Plaintiff proved that the defendant has been in permissive possession and the trial Court also came to a conclusion that the defendant was authorized by the Plaintiff to reside in the Suit property and declared the title of the Plaintiff, but no appeal has been preferred as against the declaration decree, thereby the defendant admitted the permissive possession. Once the possession is a permissive possession, the defendant has to handover the possession to the Plaintiff. Moreover, the defendant failed to prove the permanent structure, thereby Doctrine of Equitable Estoppel also will not be applicable to this case. Therefore, mere permission granted by the Plaintiff to the defendant to put up thatched shed, without any permanent structure, will not come under the purview of Section 60 of the Indian Easements Act. Thus, the substantial questions of law are answered as against the appellants and in favour of the respondents.

18. In view of the above said discussions and answers to the substantial questions of law, this Court is of the view that there is no merit in the Second Appeal and the same is liable to be dismissed.

19. Accordingly, Second Appeal stands dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.