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PETITIONER: RAM SARUP GUPTA (DEAD) BY LRS.

       Vs.

RESPONDENT: BISHUN NARAIN INTER COLLEGE & ORS.

DATE OF JUDGMENT08/04/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1987 AIR 1242            1987 SCR  (2) 805  1987 SCC  (2) 555        JT 1987 (2)    76  1987 SCALE  (1)700  CITATOR INFO :  R          1988 SC1845  (22)

ACT: Indian Easement Act, 1882:     Section 52, 60, 62, 63 and 64  License grant of--Express or  implied--Also  oral--To  be  inferred/ascertained   from conduct  of  parties and circumstances leading to  grant  of license--When  license becomes irrevocable--Person  allowing another to build on his land without reserving any right  to revoke--Whether entitled to revoke. Practice and procedure:     Pleading--Form    of--Undue   emphasis   not    to    be placed--Substance of pleading alone to be considered.

HEADNOTE:     The  property in dispute was under the occupation  of  a school managed by a Registered Education Society. The Socie- ty was managing the respondent college also. The school  was not recognised and had no endowment and building of its own. In order to secure recognition for the school, the President of Society, who owned the property in dispute, informed  the Inspector  of Schools by a letter dated November  26,  1941, that  he had given away the premises occupied by the  school free  of  rent,  which may be considered  as  his  permanent contribution  to the cause of the school. Pursuant to  this, the  school was recognised. To meet the need for  additional accommodation the management made permanent constructions on the open land attached to the building without any objection by the donor or any of his family members.     The  donor had taken a considerable amount of  loan  and mortgaged  the  property in dispute, alongwith a  number  of properties  on March 27, 1957. In order to pay off the  loan the  property  in dispute was got discharged and  the  donor alongwith  his three minor sons executed a sale deed  trans- ferring the property in dispute to the plaintiff-appellant.     The  plaintiff-appellant served a notice on  the  school and  its  managing committee terminating their  license  and directing them to restore the possession of property to  him and upon their failure to do so, 806 filed a suit for possession. The defendants pleaded that the

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property  in dispute had been donated to the  school  perma- nently  and the school had made permanent  constructions  by incurring expenses and, therefore, their license was irrevo- cable.     The  trial  court  dismissed the  suit  after  recording findings to the effect that the property in dispute belonged to  the  joint  family of which the donor  was  Karta,  that though  the  property  was donated to the  school  no  rifle passed  to  it or to any of the defendants as  the  property being  immovable  could not be transferred  except  under  a registered  deed,  and that in the absence of  the  transfer deed, then donor continued to be the owner and could  trans- fer  title in the property to the plaintiff, that under  the U.P.  Act. III of 1947 no allotment could validly be  issued in  favour of the school as there was no vacancy or  likeli- hood  of  vacancy, that though the property had  been  given away  to the school by the donor as permanent  contribution, but in the absence of the registered deed, the  transactions amounted  to  a license only, and since the  defendants  had made  permanent constructions on the premises in  suit,  li- cense  was  irrevocable under Section 60(b)  of  the  Indian Easements Act 1882 and as the donor himself had no power  in a law to revoke the license, the plaintiff being  transferee from him could not acquire any better right and,  therefore, he  was  not  entitled to revoke the license  or  to  obtain possession  of the property. In the appeal before  the  High Court there was difference of opinion between the two Judges who  constituted the Division Bench and the matter  was  re- ferred  to  a third Judge. By majority, the High  Court  af- firmed  the  findings of the trial court and held  that  the license granted to the school was irrevocable and the appel- lant was not entitled to any relief.     In  the appeal to this Court, it was submitted 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, that the defendants had failed to raise necessary pleadings on the question, no issue was framed and no  evidence  was produced by them, that 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  holding  the license irrevocable, and  that  the defendants  had failed to produce any evidence to prove  the terms and conditions of the license and that the donor being Karta  of the Joint family could not alienate  the  property permanently to the detriment of the minor co-sharers. It was contended on behalf of the defendants-respondents that  both the courts had recorded findings of fact on appreciation  of evidence  on  record,  that  the  license  granted  by   the donor/grantor was irrevocable and that 807 acting  upon the license, the school had  made  construction for  the purposes of running the school and the license  was irrevocable and that necessary pleadings had been raised and there was sufficient evidence in support of the pleadings. Dismissing the appeal, this Court,     HELD:  1.  Where license is granted for the  purpose  of running  the  school without reserving any right  to  revoke license  and  if  the licensee erected  works  of  permanent nature,  the grantor of license is not entitled  to  recover land, as the execution of work was for the purpose of school and  it  fails  within  the  expression  "acting  upon   the licence". [821E-F]     2.  If a person allows another to build on his  land  in furtherance of the purpose for which he is granted  license, subject  to  any agreement to the contrary, he  cannot  turn

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round,  later on, to revoke the license. This  principle  is codified in Section 60(b) of the Indian Easements Act, 1882. [823E-F]     In the instant case, all the three conditions, viz.  (1) the licensee executed work of a permanent character, (ii) he did  so acting upon the license, and (iii) he  incurred  ex- penses in doing so, as required by Section 60(b) of the  Act have been made out. [821A-B]     3.1  License, as defined in s. 52 of the  Easements  Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable  property of  the  grantor, something which would, in the  absence  of such right, be unlawful. Such a 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  expressed or  implied  which can be inferred from the conduct  of  the grantor. [817C-D]     3.2  Section  60 of the Act  enumerates  the  conditions under which a license is irrevocable; firstly the license is irrevocable  if it is coupled with the transfer of  property and  such right is enforced, and secondly, if  the  licensee acting upon the license executes work of permanent character and incurs expenses in execution. But Sec. 60 is not exhaus- tive. According to Section 62, a license is revocable at the will  of the grantor and the revocation may be expressed  or implied.  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. [817G-H; E-F] 3.3  The  parties may agree expressly or  impliedly  that  a license 808 which is prima facie revocable not falling within either  of the  two categories of license as contemplated by s.  60  of the  Act  shall  be irrevocable. Such agreement  may  be  in writing  or  otherwise, and its terms or conditions  may  be express  or  implied. A license may be oral  also,  in  that case,  terms, conditions and the nature of the license,  can be gathered from the purpose for which the license is grant- ed  implied with the conduct of the parties and the  circum- stances which may have let to the grant of license. [818D-E]      3.4  License  had been granted to the  school  for  the purpose of running the school and imparting education to the students, the license was not merely in respect of  building alone  but it was also in respect of open land  attached  to the building. Additional accommodation was required and  the school carried out works on the open land which was appurte- nant to the main building, with the knowledge of the  licen- sor,  as  has  been found by the trial court  and  the  High Court. In view of the licensor’s donation of the property to the  school, and his subsequent conduct, the licensee  could reasonably entertain a belief that the licensor had  permit- ted  the construction on the land and in pursuance  thereof, the  licensee made constructions and incurred expenses.  The result is that the respondents "acting upon the license" had executed  works  by incurring expenses  which  rendered  the license irrevocable. [819C-E]      3.5  If the licensee did not permit the school to  exe- cute  any  permanent constructions, the grantor  would  have certainly raised objections. His conduct of acquiescence  to the  raising  of constructions, is eloquent enough  to  show that the license was irrevocable. [819H; 820A]      3.6The pleadings, evidence and circumstances  available on record, have fully established that the donor had granted license  to the school in respect of building and  the  land

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attached  to it for the purpose of imparting  education  and the  school,  in  furtherance of  that  purpose  constructed additional  building  and it further  incurred  expenses  in carrying  out  modifications and extensive  repairs  in  the existing  building during the period the donor continued  to be the President of the Managing Committee of the school and he never raised any objection to it and there is nothing  on record  to show that licensee had retained right  to  revoke the license. [823D-E]      3.7  The  conduct  of the parties has  been  such  that equity  will  presume the existence of a  condition  of  the license  by plain implication to show that license was  per- petual  and irrevocable. That being so, the   grantor  could not revoke the license or evict the school and the appel- 809 lant being transferee from him could not and did not acquire any better right. The appellant. therefore, has no right  to revoke  the license or to evict the school, so long  as  the school  continues  to carry on the purposes  for  which  the license was granted. [823F-G]     4.1  In  the  absence of pleadings,  evidence,  if  any, produced  by  the  parties cannot be  considered.  No  party should  be permitted to travel beyond its pleadings and  all necessary and material facts should be pleaded by the  party in support of the case set up by it. The object and  purpose of  pleading  is to enable the adversary party to  know  the case  it  has to meet. In order to have a fair trial  it  is imperative that the party should state the essential materi- al  facts so that other party may not be taken by  surprise. The  pleadings, however, should receive a liberal  construc- tion,  no  pedantic  approach should be  adopted  to  defeat justice on hair-spliting technicalities. Sometimes pleadings are  expressed in words which may not expressly make  out  a case  in  accordance with strict interpretation of  law.  In such  a case, it is the duty of the Court to  ascertain  the substance of the pleadings, to determine the question. It is not desirable to place undue emphasis on form; instead,  the substance of the pleadings should be considered. [814C-F]     4.2  Whenever  the question about lack of  pleadings  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. Once  it is found that inspite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in appeal. [814F-H]     In the instant case, the plaintiff knew the case he  had to  meet.  and  for that purpose he produced  the  donor  in evidence  in support of his plea and that the license was  a simple license and it was not irrevocable as pleaded by  the defendants. [816C-D]     Bhagwati  Prasad v. Shri Chandramaul, [1966] 2 SCR  286; Gujarat Ginning and Manufacturing Co. Ltd. Ahmedabad v. Moti Lal Hirabhai Spinning and Manufacturing Co. Ltd.,  Ahmedabad AIR 1936 P.C. 77; Shankar Gopinath Apte v. Gangabai Harihar- rao  Patwardhan, [1977] 1 SCR 411; Muhammad Ziaul  Haque  v. Standard  Vaccum Oil Company, 55 Calcutta Weekly Notes  232; Dominion  of  India v. Sohan Lal, AIR 1950 EP  40;  M.F.  De Souza v. Childrens Education, Uplift Society AIR 1959 Bombay 533; Raghbir Saran v. Param Kirti Saran, AIR 1962 All.  444; Deep Chand v. Kasturi Devi, AIR 1975 Pat. 17; 810 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; Hasmat Jahan v. Sheo

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Dularev, AIR 1942 Oudh. 180; Brun Daban Jena v. Ram  Chandra Misra, [1963] 29 Cut. L.T. 37; Banamali Dalbehura v. Ratnam- ani Dei, [1954] 20 Cut. L.T. 319; Jagat Singh and Others  v. District  Board  Amritsar,  AIR 1940 Lahore  18  and  Thakur Prasad v.J. Thomkinson, AIR 1927 Oudh 206, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  638  of 1980.     From  the  Judgment  and Order dated  18.2.1978  of  the Allahabad High Court in First Civil Appeal No. 18 of 1965. S.N. Kacker, G.C. Mathur and C.P. Lal for the Appellants.     U.R. Lalit, K.K. Gupta, P.H. Parekh and P.K. Manohar for the Respondents.     Soli J Sorabjee, Prithvi Raj, N.B. Sinha and Sanjeev  B. Sinha for Respondents No. 10 to 16. The Judgment of the Court was delivered by     SINGH,  J.  This  appeal by special  leave  is  directed against  the judgment of the High Court of  Allahabad  dated 18th  February, 1978 dismissing the appeal preferred by  the appellant against the judgment and decree of the  Additional Civil Judge, Lucknow, dismissing the suit instituted by  him for possession of the property in dispute.     The  property in dispute situate at Nawal Kishore  Road, Lucknow,  consists of buildings and land which have been  in the occupation of the Bishun Narain School. In 1938, certain public  spirited  persons of Lucknow city formed  a  society registered  as the Progressive Education Society for  estab- lishing  educational  institution for  imparting  education. Raja Ram Kumar Bhargava who owned considerable property,  in the  Lucknow city, was elected Chairman of the  Society.  He permitted  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 811 authorities  of  the  Education Department  Raja  Ram  Kumar Bhargava president of the Society by his letter dated Novem- ber  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 pursu- ance 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 donat- ing the building to the school, accordingly, they unanimous- ly  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 Bhargava, the father of Raja Ram Kumar Bhargava. This meeting was presided over by Raja Ram Kumar Bhargava himself as the President  of the  Society.  Thereafter Raja Ram Kumar  Bhargava  did  not realise  rent from the school and he allowed the  school  to occupy the building and the open land attached to it for the use  of  the  school. With the passage of  time  the  school progressed, it was raised to the status of a High School and then to the status of an Intermediate College which was also named  after Bishun Narain Bhargava. Subsequently, the  pri- mary  section  of  the institution was  separated  from  the

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College section and it was given the name as "Bishun  Narain Basic School" This school has been occupying the property in dispute,  however,  the  school and the  college  both  were managed  by committee of management of which Raja Ram  Kumar Bhargava continued to be the President till 1961 and  there- after  his  wife Rani Lila Bhargava  became  the  President, which  office she continued to occupy since then.  As  there was  considerable  increase in the number of  students,  the institution  felt short of accommodation. To meet  the  need for additional accommodation, the management made  permanent constructions  on the open land attached to the main  build- ing,  to  provide  three class rooms  and  other  facilities including bath-room to the students without any objection by the Raja or any of his family members.     It  appears that Raja Ram Kumar Bhargava had taken  con- siderable amount of money as loan from Central Bank of India and to secure the loan he executed a mortgage deed, on March 27,  1957  mortgaging a number of properties  including  the property in dispute occupied by the school, in favour of the Central  Bank  of  India. The loan, however,  could  not  be repaid.  Raja Ram Kumar Bhargava offered to sell  the  mort- gaged  property  and  on negotiations, the  Bank  agreed  to release the property from mortgage to enable Raja Ram 812 Kumar Bhargava to sell the same for raising money to pay off the  loan.  The Bank released the property under  a  written agreement  dated  27th June, 1961 and in  pursuance  thereof Raja  Ram  Kumar Bhargava along with his  three  minor  sons executed  a  Sale Deed on 27th June, 1961  transferring  the property in dispute occupied by the school along with  other property to Ram Sarup Gupta, the plaintiff-appellant. In the registered  sale deed the property in dispute was  described as  Portion II of ITD Block 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  com- mittee  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  irrevoca- ble.     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 Raja Ram Kumar Bhargava  as Karta. Raja Ram Kumar Bhargava had donated  the property  in dispute to the school, but no title  passed  to the school or to any of the defendants as the property being immovable could not be transferred except under a registered deed. In the absence of transfer deed Raja Ram Kumar Bharga- va continued to be owner and he could transfer title in  the property  to  the plaintiff. The defendants’ plea  that  the civil  court  had no jurisdiction to entertain the  suit  or pass  decree  for possession was negatived on  the  findings that  under  the U.P. Act III of 1947,  no  allotment  could validly  be issued in favour of the school as there  was  no

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vacancy  or likelihood of vacancy. The trial court  recorded findings  that  Raja Ram Kumar Bhargava had given  away  the property to the school as his permanent contribution but  in the absence of registered deed the transaction amounted to a license  only  and since the defendants had  made  permanent constructions  on  the  premises in suit,  the  license  was irrevocable under section 60(b) of the Indian Easements Act, 1882 (hereinafter referred to as the Act). The trial court 813 further  held  that Raja Ram Kumar Bhargava himself  had  no power in law to revoke the license, consequently the  plain- tiff being transferee from him could not acquire any  better right,  therefore he was not entitled to revoke the  license or  to obtain possession of the property. On these  findings the  trial court dismissed the suit. The appellant took  the matter  in appeal before the High Court, the appeal came  up for  hearing before a Division Bench consisting of P.N.  Jha and K.S. Verma. JJ. There was difference of opinion  between two  learned Judges. D.N. Jha, J. affirmed the  findings  of the trial court and opined that since license granted to the school  was irrevocable. the appellant was not  entitled  to any  relief. K.S. Verma, J. took a contrary view,  according to  him  the defendants had failed to raise  requisite  plea that the license granted to them was irrevocable as  contem- plated  by  Section 60 (b) of the Act and they  had  further failed  to produce any positive evidence to prove the  terms and  conditions of the license showing that the license  was irrevocable. The learned Judge held that the defendants plea that  they had made permanent constructions on the  land  in pursuance  of the license incurring expenses, could  not  be considered as the defendants had failed to plead the  neces- sary 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,  holding  the  license irrevocable.  He  urged that the defendants  had  failed  to produce  any evidence to prove the terms and  conditions  of the  license. In order to hold the license  irrevocable,  it was necessary to plead and further to prove that the defend- ants  had made construction, "acting upon the terms  of  the license".  Shri  Kackar further urged that  Raja  Ram  Kumar Bhargava being Karta of 814 joint  family, could not alienate the, property  permanently to  the detriment of the minor co-sharers. Sri. U.R.  Lalit, appearing  on behalf of the defendant-respondents  supported the findings recorded by the trial court and the High  Court and  urged  that both the courts have recorded  findings  of

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facts on appreciation of evidence on record that the license granted by Raja Ram Kumar Bhargava was irrevocable and  that acting upon the license the school had made construction for the  purposes  of  running the school and  the  license  was irrevocable.  He  took us through the record  to  show  that necessary  pleadings had been raised by the  defendants  and there was sufficient evidence in support of the pleadings.     The  question which falls for consideration  is  whether the  respondents in their written statement have raised  the necessary  pleading  that  the license  was  irrevocable  as contemplated  by  Section 60(b) of the Act and,  if  so,  is there  any  evidence on record to support that plea.  It  is well  settled that in the absence of pleading, evidence,  if any,  produced  by the parties cannot be considered.  It  is also  equally settled that no party should be  permitted  to travel beyond its pleading and that all necessary and  mate- rial facts should be pleaded by the party in support of  the case set up by it. The object and purpose of pleading is  to enable the adversary party to know the case it has to  meet. In  order  to have a fair trial it is  imperative  that  the party  should  state the essential material  facts  so  that other  party  may not be taken by  surprise.  The  pleadings however  should receive a liberal construction, no  pedantic approach should be adopted to defeat justice on hair  split- ting  technicalities. Sometimes, pleadings are expressed  in words which may not expressly make out a case in  accordance with strict interpretation of law, in such a case it is  the duty  of the Court to ascertain the substance of the  plead- ings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the  plead- ings 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               815               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 satisfactori-               ly  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 are touched,  though               indirectly  or even obscurely in  the  issues,               and evidence has been led about them, then the               argument  that  a particular  matter  was  not               expressly  taken  in the  pleadings  would  be               purely formal and technical and cannot succeed               in every case. What the Court has to  consider               in dealing with such an objection is: did  the               parties  know that the matter in question  was               involved  in  the  trial, and  did  they  lead               evidence  about  it? If it  appears  that  the

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             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.               To  allow one party to reply upon a matter  in               respect of which the other party did not  lead               evidence  and has had no opportunity  to  lead               evidence,  would introduce  considerations  of               prejudice, and in doing justice to one  party,               the Court cannot do injustice to another."     Before we examine the pleas raised by the defendants  in their written statement it is necessary to keep in mind that the  plaintiff himself stated in paragraph 4 of  the  plaint that  the property in dispute has been in occupation of  the school  as licensee under the permission of Raja  Ram  Kumar Bhargava erstwhile owner of the property. Defendant Nos.  11 to 17 in paragraph 10 to 16 of their written statement while dealing  with the question of license expressly stated  that the school had made pucca constructions and had been  making various substantial additions and alterations in the  build- ing without any objection. Raja Ram Kumar Bhargava had given away  the premises in dispute permanently to the school  and they have been in occupation of the premises for the last 20 years and during that period they have been making  substan- tial  additions  and alterations in the  building  including replastering, re-flooring etc. by incurring heavy  expenses. In paragraph 18 of their written statement they pleaded that the license was coupled with a grant and in any case it  was a permanent and irrevocable license in favour of the  school and  the  same could not be revoked by  the  plaintiff.  The pleadings so raised make it apparently 816 clear  that the defendants had raised a specific  plea  that the  license was coupled with grant, it was a permanent  and irrevocable  license  and in pursuance of  the  licence  the licensee had carried out work of permanent character  incur- ring  expenses for the advancement 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  in- volved  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  defend- ants  claim  was that the license was  irrevocable,  on  the ground  that they had made permanent constructions  and  in- curred 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  Bhar- gava 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 of a permanent character and incurred expenses in its execu- tion.The defendants tailed to raise any such plea before the trial  court  that they had executed the work  of  permanent character  and incurred expenses "acting upon  the  license" and  they further failed to produce any evidence in  support thereof. He urged that by making constructions and incurring expenses  a licensee could not make the license  irrevocable

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as the law requires that constructions, if any, and expenses incurred  thereon  must be shown to have been  made  "acting upon  the license". He placed reliance on the Privy  Council decision  in  Gujarat  Ginning and  Manufacturing  Co.  Ltd. Ahmedabad  v. Moti Lal Hirabhai Spinning  and  Manufacturing Co. Ltd. Ahmedabad, AIR 1936 P.C. 77 and also on a  decision of this Court in Shankar Gopinath Apte v. Gangabai  Harihar- rao Patwardhan, [1977] 1 SCR 411. In addition to these cases he  referred to a number of High Court decisions in  support of his submissions that benefit of Section 60 (b) of the Act could  not  be  granted to the  respondent  school.  Similar grievance  had been raised by the appellant before the  High Court  on the ground on absence of requisite pleadings  with regard  to  the  respondents’ claim for  the  license  being irrevocable under section 60 (b) of the Act. The majority of the  Judges of the High Court repelled the appellants’  sub- mission on a detailed scrutiny of the plead- 817 ings.  We have already referred to the pleadings  raised  by the defendants which contain necessary facts to sustain  the pleading  of the license being irrevocable under section  60 (b)  of the Act. It is well settled that the pleadings  need not reproduce the exact words or expressions as contained in the  statute,  nor  the question of law is  required  to  be pleaded. The substance of the respondents’ pleadings clearly informed  that their case was that they had  made  construc- tions on the land acting upon the licence which substantial- ly met the requirement of law. Before we discuss the author- ities cited by the appellants’ counsel we consider it neces- sary to briefly refer to the provisions of the Act  regulat- ing  the grant, revocation of license and other allied  mat- ters and also the evidence available on record.     License as defined by Section 52 of the Act means  grant of  permission, by a person to the other, a right to  do  or continue  to do, in or upon, the immovable property  of  the grantor,  something  which  would, in the  absence  of  such right,  be unlawful. Such right does not amount to an  ease- ment  or  any interest in the property. The rights  so  con- ferred  is license. The grant of license may be  express  or implied which can be inferred from the conduct of the  gran- tor.  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  imprac- ticable, 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 terminated  without any fault of his own.  These  provisions indicate  that  a license is revocable at the  will  of  the grantor  and  the revocation may be  expressed  or  implied. Section  60 enumerates the conditions under which a  license is irrevocable. Firstly, the license is irrevocable if it is coupled with transfer of property and such right is enforced and  secondly, if the licensee acting upon the license  exe- cutes  work  of permanent character and incurs  expenses  in execution. Section 60 is not exhaustive. There may be a case

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where  the grantor of the license may enter  into  agreement with  the  licensee  making the  license  irrevocable,  even though, none of the two clauses 818 as specified under section 60 are fulfilled. Similarly, even if the two clauses of section 60 are fulfilled to render the license  irrevocable  yet it may not be so  if  the  parties agree  to the contrary. In Muhammad Ziaul Hague v.  Standard Vacuum Oil Company, 55 Calcutta Weekly Notes 232 the Calcut- ta  High  Court  held that where a license  is  prima  facie irrevocable  either  because it is coupled with a  grant  or interest or because the licensee erected the work of  perma- nent  nature  there is nothing to prevent the  parties  from agreeing expressly or by necessary implication that  licence nevertheless shall be revocable. On the same reasoning there is nothing to prevent the parties agreeing expressly or  im- pliedly  that  the license which may not  prima  facie  fall within  either of the two categories of license (as  contem- plated  by section 60) should nevertheless  be  irrevocable. The  same  view  was taken by Das, J. (as he  then  was)  in Dominion of India v. Sohan Lal, AIR 1950 EP 40. Bombay  High Court  has  also  taken the same view in H.F.  De  Souza  v. Childrens Education Uplift Society, AIR 1959 Bombay 533. The parties  may  agree expressly or impliedly  that  a  license which is prima facie revocable not failing within either  of the two categories of license as contemplated by Section  60 of  the Act shall be irrevocable. Such agreement may  be  in writing  or  otherwise and its terms or  conditions  may  be express or implied. A license may be oral also in that case, terms,  conditions  and the nature of the  license,  can  be gathered from. the purpose for which the license is  granted coupled  with  the conduct of the parties  and  the  circum- stances which may have let to the grant of the license.     In  their pleadings the defendants had invoked the  pro- tection of both the clauses of Section 60 of the Act, first- ly,  they  pleaded  that the license was  coupled  with  the transfer of property inasmuch as the school had been realis- ing  rent  from third parties who were permitted  to  use  a portion of the land. Secondly, they pleaded that the  licen- see, 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 respond- ents  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  perma- nent  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 819 the  purpose of school and in pursuance of the  license,  so granted, the school had executed work of permanent character and  incurred  expenses in making the same.  The  defendants further  pleaded  that no objection had been raised  by  the grantor of the license or by anyone else against the  school in  making the constructions. Repeated assertions have  been made in their written statement that Raja Ram Kumar  Bharga- va,  had granted a permanent license which was  irrevocable. Substance  of  the pleading was clear  that  defendants  had raised  a specific plea that the school had in pursuance  of

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the  license  executed work of permanent character  and  in- curred  expenses  in  execution and that  no  objection  was raised  by the licensor therefore the license was  irrevoca- ble.  The  license had been granted to the  school  for  the purpose  of  running school and imparting education  to  the students, the license was not merely in respect of  building alone  but it was also in respect of open land  attached  to the  building.  Additional  accommodation  was  required  to provide  class rooms for the students which was an  integral part  of the purpose for which the license had been  granted and the school carried out works on the open land which  was appurtenant to the main building, with the knowledge of  the licensor  as has been found by the trial court and the  High Court. In view of the licensor’s donation of the property to the  school, and his subsequent conduct, the licensee  could reasonably entertain a belief that the licensor had  permit- ted the construction on the land, and in pursuance  thereof, the  licensee made constructions and incurred expenses.  The result is that the respondents "acting upon the license" had executed  works  by incurring expenses  which  rendered  the license irrevocable. As regard evidence we have perused  the statement of Ganga Prasad Dhayani, DW 1, Shanker Dutt, DW 2, and Bhola, DW 3. Their testimony fully established that  the school had constructed three class rooms, latrin and urinals and incurred expenses. Raja Ram Kumar Bhargava in his testi- mony claimed that the aforesaid constructions had been  made by a trust constituted by his family members, but no account books  were filed in support of the statement,  although  it was admitted that the trust maintained accounts on the other hand  vouchers  were produced on behalf  of  the  defendants showing  that  the  management had spent  money  for  making constructions. Raja Ram Kumar Bhargava who was examined as a witness on behalf of 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  objec- tions. His conduct of acquiescence to the raising of 820 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  in- voked 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  the land of the grantor something which  would  be unlawful  in  the  absence of such right.  A  man  does  not "acting  upon a license" executes works and  incurs  expense upon  his own property as that he can do without  any  one’s license. These observations do not support the appellant  on the  other  hand they show that if a man  executes  work  of permanent  character and incurs expense on the  property  of other  person  under a license he may have done  so  "acting upon  the  license". In Shanker Gopinath Apte  v.  Gangabhai Hariharrao  Patwardhan  the  plaintiff had  raised  plea  of tenancy failing which he claimed to be in possession of  the

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land,  in part performance of an agreement for sale. On  the rejection of both the pleas the plaintiff-appellant  therein raised  a further plea that he was protected  under  section 60(b)  of the Indian Easements Act as he had executed  works of permanent character on the land incurring heavy expenses. This Court rejected the submissions on the ground of absence of  pleadings,  issues  and evidence.  While  rejecting  the appellant’s submissions the Court observed that even  assum- ing  that  the appellant had executed work  of  a  permanent character on the land it could not be said that he had  done so "acting upon the license" as required by Section 60(b) of the  Easements  Act. The Court observed that  the  appellant improved the land by executing work c-f a permanent  charac- ter,  he did so, in the belief that being a tenant he  would become  statutory  purchaser of the land or  that  the  oral agreement  of  sale will one fine day  be  implemented.  The execution  of the work was done either in the capacity as  a tenant or as a prospective purchaser but not as a  licensee. The decision has no application to the facts of the  present case  as  admittedly the school was a licensee and  in  that capacity  it  executed works of a  permanent  character,  by incurring  expenses and this plea was raised at the  initial stage before the trial court. 821     Reference was made to a number of decisions of the  High Court in support of the proposition that a license is irrev- ocable  under section 60(b) of the Act only if three  condi- tions are fulfilled, namely, (i) the licensee executed  work of  a  permanent character, (ii) he did so acting  upon  the license,  and  (iii) he incurred expenses in doing  so.  The onus of proving these facts lie upon the licensee and in the absence of any evidence on these questions the license 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. Ratnam- ani Dei, [1954] 20 Cut. LT 319. We do not consider it neces- sary to discuss these authorities in detail as in our  opin- ion 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  deci- sions  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 Easements Act. In our view the Court  rightly held  that where license is granted for the purpose of  run- ning  school without reserving any right to revoke  the  li- cense and if the licensee erected works of permanent nature, the  grantor of license is not entitled to recover land,  as the  execution of work was for the purpose of school and  it falls within the expression "acting upon the license".     Learned  counsel  for the appellant urged  that  in  the absence of any document containing the terms and  conditions of the license, the courts below committed error in  holding that license was irrevocable. Since no written document  was executed by the parties containing the terms and  conditions of  the license, the terms and conditions could be  inferred

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from  the  attending circumstances and the  conduct  of  the parties.  Raja Ram Kumar Bhargava was the President  of  the Society  which was running the Narhi Middle School,  but  it was not recognised by the Education Department of the  State of U.P. The correspondence which is on record shows that the Education  Department  insisted that there  should  be  some endowment and school should own building 822 and  land before it could be granted recognition.  Raja  Ram Kumar Bhargava gave away the disputed property donating  the building  and  the land in favour of school  by  his  letter dated November 26, 1941 (Ex C-B-6) addressed to the  Inspec- tor  of  Schools,  Lucknow. In that letter  Raja  Ram  Kumar stated  "I have given my building free of rent to the  Narhi Middle  School. I now write to inform you that the  premises at  present  in the occupation of the school  free  of  rent which  may  be considered my permanent contribution  to  the cause  of  the school." On the receipt of  that  letter  the Education Department granted recognition to the school.  The proceedings of the Managing Committee of the school held  on January  6,  1942  (Ext. B-16) show that a  meeting  of  the Managing  Committee was held on that day president  over  by Raja  Ram  Kumar Bhargava and in that meeting  the  Managing Committee  expressed  its  deep sense  of  appreciation  and grateful thanks to Raja Ram Kumar Bhargava for donating  the building to the school for procuring the recognition to  the school from the U.P. Government, and it further resolved  to name the school as the Bishun Narain Anglo Vernacular School to  perpetuate  the memory of Shri  Bishun  Narain  Bhargava father  of Raja Ram Kumar Bhargava. These documents  clearly indicate that Raja Ram Kumar Bhargava had permanently donat- ed 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  stu- dents.  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  rea- sonable 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  impart- ing education to the students.     The appellant’s submission that Raja Ram Kumar  Bhargava being  Karta  of joint family could not create  a  permanent license in favour of the school without the consent of other co-sharers, tO the detriment of his minor sons, is devoid of any  merit. No co-sharer or member of the joint family  ever raised any objection to the donation of the property to  the school by Raja Ram Kumar Bhargava nor they 823 raised  any  objection at any stage of construction  of  the additional buildings by the school. There is no evidence  on record to show that his three minor sons, on whose behalf he executed  sale deed on 27th June 1961 in appellant’s  favour were born prior to 1941. Moreover title in the property  was not  transferred to the school instead a  permanent  license was granted, in which every member of the joint family, must have  been interested, as the school perpetuated the  memory

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of the common ancestor Shri Bishun Narain Bhargava father of Raja Ram Kumar Bhargava. The question of any legal necessity did  not arise and the grant of permanent license in  favour of  the  school’ could not be rendered void  merely  because Raja  Ram Kumar Bhargava was Karta of the joint  family.  No co-sharer  has  challenged the validity of the  license,  on that  ground. On the other hand they have acquiesced to  it. There is thus no merit in the appellant’s contention.     In  view of the above discussion we are of  the  opinion that the pleadings, evidence and the circumstances available on record, have fully established that Raja Ram Kumar  Bhar- gava  had  granted license to the school in respect  of  the building  and  the land attached to it for  the  purpose  of imparting  education and the school in furtherance  of  that purpose  constructed  additional buildings  and  it  further incurred expenses in carrying out modification and extensive repairs  in the existing buildings during the  period,  Raja Ram  Kumar  Bhargava continued to be the  President  of  the Managing Committee of the school. He never raised any objec- tion  to  it  and there is nothing on record  to  show  that licensor  had  retained right to revoke the  license.  If  a person  allows another to build on his land in the  further- ance  of the purpose for which he had granted license,  sub- ject  to  any agreement to the contrary cannot  turn  round, later on, to revoke the license. This principle is  codified is  Section 60(b) of the Act. Moreover, conduct of the  par- ties has been such that equity will presume the existence of a condition of the license by plain implication to show that license  was perpetual and irrevocable. That being so,  Raja Ram Kumar Bhargava could not revoke the license or evict the school and the appellant being transferee from him could not and  did not acquire any better right. The appellant  there- fore  has  no right to revoke the license or  to  evict  the school, so long the school continues to carry on the purpose for  which the license was granted. The trial court and  the High Court have therefore rightly dismissed the suit.     Before  concluding,  we would like to observe  that  the appellant  purchased the property in dispute from  Raja  Ram Kumar  Bhargava for valuable consideration and he  continues to be the owner of the 824 property,  his desire to get the possession of the  property is  quite  natural but at the same time we cannot  shut  our eyes to the hard reality that Raja Ram Kumar Bhargava  erst- while  owner  of  the property had  granted  an  irrevocable license in favour of the school. On 27th June 1961 when Raja Ram  Kumar  Bhargava executed the sale deed  in  appellant’s favour  the  property in dispute was in  possession  of  the school  under an irrevocable license. The  appellant  should have  known that the institution was occupying the  property and  it was rendering public service in imparting  education to the students and it would be difficult to get possession, in spite of that, the appellant purchased the property.  The school has been occupying the property since 1939 and it has made  permanent  constructions without any  demur  from  any quarter,  in this situation it is not possible to grant  any relief to the appellant. To evict the school may result into closure  of  the  institution and that  would  certainly  be against  public interest. Having regard to these  facts  and circumstances, we gave opportunity to the parties to  evolve settlement  to adjust equities without disturbing the  cause of  education. We regret to say that the parties  could  not settle  the matter, we have therefore decided the appeal  on merits.     In view of the above discussion we do not find any merit

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in  the appeal it is accordingly dismissed. In  the  circum- stances of the case parties shall bear their own costs. N.P.V.                                          Appeal  dis- missed. 825