http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: PANCHUGOPAL BARUA & ORS.

       Vs.

RESPONDENT: UMESH CHANDRA GOSWAMI & ORS.

DATE OF JUDGMENT:       12/02/1997

BENCH: A.S. ANAND, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      DR. ANAND. J.      This appeal  by special  leave is  directed against the judgment and  order of  the  High  Court  of  Gauhati  dated 12.8.88 in  Second Appeal  No. 85/79  and has  arisen in the following circumstances:      Shri Durga Charan Barua, predecessor in interest of the appellant, allowed  respondent No.  1 Umesh Chandra Goswami, to make permissive use of a plot of land in Jorahat town for a period  of two  years commencing  from 1.6.63 and to raise temporary structure  thereon for  the said  period  for  the purpose of his residence. There was an understanding between them that  the respondent  would remove  the  structure  and deliver khas possession of the suit land after the expiry of the period of two years. On the failure of the respondent to handover the  vacant possession  of the  suit  land  to  the predecessor-in- interest  of the  appellants,  a  registered notice  was   served  on   the  respondent  to  deliver  the possession by  31st March,  1966.  The  respondent  did  not deliver possession  and the  predecessor in  interest of the appellant thereupon,  in 1966,  filed a suit in the Court of Munsif,  Jorahat,  for  a  decree  of  khas  possession  and compensation. It  was registered  as title  suit No.  65/66. After survey  commission, it was found that the value of the suit  land   exceeded  the  pecuniary  jurisdiction  of  the Munsif’s court  and therefore  the suit  was brought  to the court of  Assistant District  Judge, Jorahat  and registered there as title suit No. 36/67. The case set up in the plaint by the  plaintiff was  that he  had allowed the defendant to make permissive  use of  the suit  land by raising temporary structure thereon for a period of two years with effect from 1st of  June, 1963  but inspite  of  a  clear  understanding between the  plaintiff and  the defendant  that  the  latter would vacate and deliver khas possession of the suit land by removing his  temporary structures  from the land at his own cost at the end of the period of two years, he had failed to hand back  the possession  of the  suit land.  The defendant resisted the  suit and  in the  written statement inter-alia pleaded that  "the defendant  did not  occupy any  land as a permissive user under the plaintiff .......... the defendant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

has occupied  the land  under the  contract of  purchase and never gave  any understanding to the plaintiff to remove his structures."  While  title  suit  No.  36/67  filed  by  the predecessor-in-interest of  the appellants  was pending, the defendant-respondent also  filed a  suit  in  the  Court  of Assistant District  Judge, Jorahat,  being  title  suit  No. 23/69 for  a decree  of  specific  performance  of  an  oral agreement to  sell the suit land against the predecessor-in- interest of  the appellant.. It was pleaded by the defendant (respondent No.  1 herein)  that he had entered into an oral agreement with  Shri Durga  Charan Barua  for  sale  of  the disputed plot  of land  and had been delivered possession of the same  in pursuance  of the  aforesaid agreement  by  him after receiving  Rs. 7860.00 as sale price. That after being handed  over  the  possession  of  the  suit  land,  as  the prospective purchaser,  he had  constructed a  house over it and since  Shri Durga Charan Barua had failed to execute the sale deed,  a decree  for specific  performance of  the oral agreement by  calling upon  Shri Barua  to execute  the sale deed be  passed in  his favour. Both the suits i.e. Suit No. 36/67 and Suit No. 23/69 were clubbed and tried together.      During the  pendency of  the suit,  Shri  Durga  Charan Barua died and his legal representatives were brought on the record. The  trial court  by a  common  judgment  and  order decreed suit No. 36/67 filed by late Shri Durga Charan Barua directing khas  possession to  be given  to the plaintiff by the  defendant   and  dismissed  suit  No.  23/69  filed  by respondent No.  1 by  returning a  finding that there was no evidence to  show that respondent No. 1 had entered into any agreement to  purchase the  suit land  with late  Shri Durga Charan Barua  nor was there any evidence to show that he had paid the  sum of Rs. 7860/- to Durga Charan Barua. The trial court held  that the  story of an oral agreement to sell the suit land was a concocted one. Aggrieved by the judgment and decree of  the trial  court, respondent  No. 1 preferred two separate appeals  before the  District Judge,  Jorahat. Vide judgment dated 21.8.78 the District Judge dismissed both the appeals and  confirmed the judgment and decree passed by the Trial Court  in both  cases. The  respondent No. 1 thereupon preferred two  second appeals before the High Court being SA No. 77/79  arising out  of suit  No. 23/69  and SA No. 85/78 arising out  of judgment  and decree  in suit No. 36/67. The High Court  vide judgment  and order  dated 4.8.88 dismissed second appeal  No. 77/79  and upheld the concurrent findings of the  two courts  to the effect that the story put forward by respondent  No. 1  regarding the  existence  of  an  oral agreement to  sell, had no truth in it. The plea put forward by respondent  No. 1 of his occupying the suit land pursuant to the  oral agreement  to sell  was rejected.  It was found that respondent  No. 1 had been given possession of the suit land as  a licencee  by the  plaintiff  as  alleged  in  the 12.8.88 allowed  second appeal No. 85/79 arising out of suit No. 36/67  and by  the said  judgment granted benefit of the provisions of Section 60(b) of the Indian Easement Act, 1882 (hereinafter called  the ‘Easement Act’) holding the licence to be  irrevocable on the principles of "justice, equity and good conscience".  The High  Court relying  on the report of the local  commissioner of  1975 came to the conclusion that the structure  raised by respondent No. 1 was of a permanent nature and  therefore the  protection under Section 60(b) of the Easement  Act was  available to  him and he could not be evicted from the suit land. The preliminary objection raised by the  appellants, that  no plea  on the basis of which the benefit of  the provisions of the Easement Act was now being sought for  the first  time in  the second  appeal had  been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

raised in  the written  statement; that  no issue  had  been framed and  no evidence  was led  by the  parties before the trial court  regarding the  availability of  the benefit  of Section 60(b)  of  the  Act  and  that  even  in  the  First Appellate  Court,   no  such   plea  had  been  raised  and, therefore, the  same could  not be  allowed to be raised for the first  time in  the High Court in the Second Appeal, was rejected and  the second  appeal, was  allowed setting aside the concurrent findings of fact.      While the  appellant filed SLP against the judgment and order of  the High Court in second appeal No. 85/79 (arising out of  SLP 2567/89),  respondent No.  1 filed a SLP against the dismissal of the second appeal No. 77/79 (arising out of SLP 14313/88).  Vide order  dated 3.8.93  special leave  was granted in SLP No. 2567/89 but SLP No. 14313/88 filed by the respondent No. 1 was dismissed.      Mr.  Hansaria,   learned  counsel,  appearing  for  the appellant submitted  that not  only was  the  second  appeal filed by respondent No. 1 not maintainable as no substantial question  of  law  was  involved  in  the  appeal  but  even otherwise no  relief could  have been  granted to respondent No. 1  on the basis of Section 60(b) of the Easement Act, as that Act  does not  apply to  the State  of  Assam.  Learned counsel for  the respondent, however, supported the judgment on the same reasoning as given by the learned Single Judge.      Both the trial court and the First Appellate Court have concurrently found that the plea of respondent No. 1 that he had entered into an oral agreement to purchase the suit land with late  Shri Durga Charan Barua and had occupied the same after  being   put  in   possession  by  Shri  Barua,  as  a prospective purchaser,  and had  raised construction thereon as a prospective purchaser was not borne out from the record and that  the story  was false  and not based on truth. Both the courts  also found,  concurrently, that  Shri Barua, the predecessor-in-interest of  the appellant  had  allowed  the respondent to  make permissive  use of  the suit  land for a period of two years and had permitted him to raise temporary structures on  the said  plot of land for the purpose of his residence. Against  these concurrent  findings of  fact, the learned  Single   Judge  admitted  two  second  appeals  and subsequently allowed  one by  setting aside  the  concurrent findings of  fact and  on the  basis  of  a  plea,  claiming benefit of  Section 60(B) of the Easement Act, raised before the High  Court for  the first  time in  the  second  appeal granted relief  to  respondent  No.  1  and  non-suited  the plaintiff-appellant. We shall deal with that aspect a little later.      It appears  to us  that the learned Single Judge of the High Court  overlooked the  change brought  about in Section 100  C.P.C.   by  the   Amendment  Act  of  1976  which  has drastically restricted the scope of second appeals. Prior to the amendment,  a second  appeal could lie to the High Court on the  grounds set out in Clauses (a) to (c) of Section 100 (1), namely:      (a)  the decision being contrary to      law or  to some  usage  having  the      force of law;      (b)  the decision  having failed to      determine some  material  issue  of      law or  usage having  the force  of      law;      (c)  a substantial  error or defect      in the  procedure provided  by this      Code or  by any  other law  for the      time  being  in  force,  which  may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

    possibly  have  produced  error  or      defect in  the decision of the case      upon the merits.      However, by  the amendment  of 1976,  vital change  was introduced by  the legislature  in Section  100  C.P.C.  The amended Section 100 C.P.C. reads thus:      100. (1)    Save    as    otherwise      expressly      provided in the body      of this  Code or  by any  other law      for the  time being  in  force,  an      appeal shall  lie to the High Court      from every  decree passed in appeal      by any  Court  subordinate  to  the      High Court,  if the  High Court  is      satisfied that  the case involves a      substantial question of law.      (2)  An appeal  may lie  under this      section from  an  appellate  decree      passed ex parte.      (3)  In  an   appeal   under   this      section, the  memorandum of  appeal      shall    precisely     state    the      substantial   question    of    law      involved in the appeal.      (4)  Where  the   High   Court   is      satisfied   that    a   substantial      question of  law is involved in any      case,  it   shall  formulate   that      question.      (5)  The appeal  shall be  heard on      the question  so formulated and the      respondent shall, at the hearing of      the appeal,  be  allowed  to  argue      that the case does not involve such      question: Provided  that nothing in      this sub-section shall be deemed to      take away  or abridge  the power of      the Court  to hear,  for reasons to      be  recorded,  the  appeal  on  any      other substantial  question of law,      not formulated  by  it,  if  it  is      satisfied that  the  case  involves      such question."      A bare  look at  Section  100  C.P.C.  shows  that  the jurisdiction of  the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals as involve a  substantial question of law, specifically set out in the  memorandum of  appeal and  formulated  by  the  High court. Of  course, the  proviso to  the Section  shows  that nothing shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the  Court is  satisfied that  the case  involves such  a question. The  proviso  presupposes  that  the  court  shall indicate in  its order the substantial question of law which it proposes  to decide  even if such substantial question of law was not earlier formulated ate by it. The existence of a "substantial question  of law" is thus, the sine-qua-non for the  exercise   of  the   jurisdiction  under   the  amended provisions of Section 100 C.P.C.      Generally speaking,  an appellant  is not to be allowed to set  up a  new case in second appeal or raise a new issue (otherwise than  a jurisdictional one), not supported by the pleadings or  evidence on  the record  and unless the appeal involves a  substantial question  of law,  a  second  appeal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

shall  not   lie  to   the  High  Court  under  the  amended provisions. In the present case, no such question of law was formulated in the memorandum of appeal in the High Court and grounds (6)  and (7)  in the memorandum of the second appeal on  which   reliance  is   placed  did   not  formulate  any substantial question of law. The learned single Judge of the High Court  also, as  it transpires  from a  perusal of  the judgment under  appeal, did  not formulate  any  substantial question of  law in  the appeal  and dealt  with the  second appeal, not on any substantial question of law, but treating it as  if it  was a  first appeal,  as of right, against the judgment and decree of the subordinate Court. The intendment of the legislature in amending Section 100 C.P.C. was, thus, respected in  its breach. Both the trial court and the lower appellate court  had decided  the cases only on questions of fact, on  the basis of the pleadings and the evidence led by the parties  before the Trial Court. No pure question of law nor even  a mixed  question of law and fact was urged before the  Trial  Court  or  the  First  Appellate  Court  by  the respondent. The  High Court was, therefore, not justified in entertaining the  second appeal  on an altogether new point, neither pleaded  nor canvassed in the subordinate courts and that too by overlooking the changes brought about in Section 100  C.P.C  by  the  Amendment  Act  of  1976  without  even indicating that  a substantial  question of law was required to be  resolved in  the second appeal. to say the least, the approach of  the High  Court  was  not  proper.  It  is  the obligation of  the  courts  of  law  to  further  the  clear intendment of  the legislature  and not  to frustrate  it by ignoring the same.      In the  case of Chevalier I.I. Iyyappan and another vs. The Dharmodayam Co., Trichur, [AIR 1966 SC 1017], Kapoor, J. speaking for  a three  Judges bench considered the case of a party, which  had tried to change its stand at the appellate stage by raising a plea of licence and its irrevocability, a plea not  raised at  the Trial Court nor adjudicated upon at any stage. It was noticed:      "The appellant  in this  Court  has      mainly relied  on the  plea that he      had been  granted a executed a work      of  a   permanent   character   and      incurred expenses  in the execution      thereof and therefore under Section      60(b) of  the Indian Easements Act,      1882  (5   of  1882),   hereinafter      referred to as the ‘Act’, which was      applicable to  the area  where  the      property is  situate and  therefore      the license was irrevocable. Now in      the trial  court no plea of license      or its  irrevocability  was  raised      but  what   was  pleaded   was  the      validity of the trust in Exhibit X.      In the  judgment of the trial court      no such  question was discussed. In      the grounds of appeal in his appeal      to  the   High  Court   which   the      appellant took  against the  decree      of the  trial  court  the  relevant      grounds are 9 to 13.      The  Court   on  the  basis  of  the  above  facts  and circumstances observed  that it was not open to the party to change his case at the appellate stage and since the plea of licence or its irrevocability had not been raised before the Trial Court, the same could not have been raised in the High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

Court and upheld the judgment of the High Court refusing the permission to  raise such  a plea at the appellate stage for the first  time. That  judgment clearly applies to the facts of the  present case.  The learned Single Judge noticed this judgment but  opined that the decision could not prevent the appellant in  the High  Court from taking the plea regarding the protection  of Section 60(b) of the Act "inasmuch as the granting of  licence and raising of structure is the case of the  plaintiff   himself".  Even  after  noticing  that  the appellant had  specifically raised  the defence  both in the Trial Court  and in  the First  Appellate Court  that he had raised the  construction as a prospective owner, the learned Single Judge  went on to say that since the plaintiff’s case in the  plaint was  that a  licence had  been granted to the appellant to raise the structure, relief could be granted to the defendant  on the  plea raised  by the plaintiff himself ignoring the  stand of the defendant as the plaintiff had to succeed or  fail on  the strength of his own case and not on the weakness  of the  defence. There  may not be any quarrel with the  abstract proposition  of law  that a plaintiff can succeed on  the strength  of his  own case  and not  on  the weakness of  the defence  but what  the High  Court seems to have completely  overlooked is  that  the  plaintiff’s  case specifically was  that he  had allowed the defendant to make permissive use  of the  suit land  as  a  licencee  and  had permitted the  raising of  temporary structure thereon for a period of  two years  beginning 1st  June, 1963 and that the defendant acting  on the  licence  had  raised  a  temporary structure on the suit land and contrary to the understanding had refused  to hand  back the  possession of  the suit land after the  expiry of  two years.  This plea of the plaintiff had to  be taken  as a  whole and could not be dissected for the  purpose   of  granting  relief  to  the  respondent  by accepting a  part of it. On the plaintiff’s plea, taken as a whole, the  question of  irrevocability of the licence could not  at  all  arise  because  for  granting  relief  on  the principles contained  in Section 60(b) of the Easements Act, a licence  becomes irrevocable  provided the following three conditions are satisfied: (1)  that the occupier must be a licensee; (2)  that he should have acted upon the licence; (3)  and executed a work of permanent character and incurred expenses for the execution of the work.      The learned  Single Judge of the High Court relied upon the report  of the  Advocate Commissioner  to opine that the structure raised  by the  defendant on the suit property was of a  permanent character.  In doing  so he ignored not only the other evidence on the record but also that the report of the Advocate  Commissioner was  submitted in 1975, while the question of  raising construction  was to  be considered  in relation to  the period  of the  licence i.e.  1.6.1963  and 1.6.1965.  According   to   the   plaintiff-appellant   only temporary construction  had been permitted and raised at the site and  when request  was made  by the  appellant  to  the licencee to vacate and handover khas possession the same did not evoke  any response.  On the  strength of the plaintiff- appellant’s case,  as noticed  above, the High Court fell in error in  holding that  the licence  could  not  be  revoked because  of  the  raising  of  permanent  structure  by  the licencee, a  case  totally  inconsistent  with  the  defence raised in  the Trial  Court and the First Appellate Court by respondent No. 1. Such a plea ought not to have been allowed to be  raised at  the stage of the second appeal in the High Court for  the first  time in  the second  appeal.  However, since the High Court has interfered with concurrent findings

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

of fact  recorded by the two courts below, we do not propose to  rest   our  judgment   only  on   the  ground   of  non- maintainability of  the second appeal and proceed to examine the merits of the judgment under appeal also.      The main  submission made  by learned  counsel for  the appellant-defendant (respondent  herein) in  the High  Court was that  the defendant  could not have been asked to vacate the premises  in as  much as  the licence granted to him had become irrevocable  in view  of the  provisions  of  Section 60(b) of the Easements Act because the appellant acting upon the  licence  had  constructed  structures  of  a  permanent character on  the suit land by spending money on it, thereby satisfying all  the requirements  of the  said Section.  The preliminary   objection    of   the    plaintiff-respondents (appellants  herein)   that  no   new  plea   regarding  the irrevocability of the licence, could be allowed to be raised for the  first time in the High Court as such a plea had not been urged  either in  the pleadings or during the arguments before the  Trial Court  or before the First Appellate Court and no  evidence had been led in support of the new plea was rejected. It was observed:      "Before the  submission advanced by      Shri Goswami  is examined, it would      be  apposite   to  state   at   the      threshold that  the aforesaid point      was not  urged in  the way  it  has      been advanced  in this Court either      before the  Trial Court  or  before      the learned  District  Judge.  Shri      Barua appearing for the respondent,      therefore, raised an objection that      this new plea may not be allowed to      be raised  for the  first  time  in      this Court.  In this connection, he      referred   to    C.   Iyyappan   V.      Dharmodayam Co,  AIR 1966  SC 1017,      in para  8 of  which this aspect of      the matter  has been dealt with. In      that case also a plea was sought to      be taken  that the appellant before      the Court  was protected by Section      60(b)  of   the  Act.   The   plea,      however,  was  not  allowed  to  be      raised because  in the  trial court      no   plea   of   licence   or   its      irrevocability  was   raised;   the      defence    taken    was    entirely      different. This  decision taken was      entirely different.  This  decision      cannot prevent  the appellant  from      taking the plea of protection under      Section 60(b)  of the  Act  in  the      present  case   inasmuch   as   the      granting of  licence and raising of      the structure  is the  case of  the      plaintiff himself.  It is  no doubt      true that  the defence taken by the      defendant in  the trial  court  was      not one  which had been advanced by      Shri Goswami.  It was  relating  to      agreement to purchase the suit land      following which  the defendant  had      come to  occupy the  suit land; but      this is  not enough.  In my view to      disallow the appellant to raise the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

    point   urged   by   Shri   Goswami      inasmuch as  the same is a question      of law and is based on the pleading      of the plaintiff," is not proper.      The learned  Single Judge noticed that the Easement Act had no  application to  the State  of Assam,  but went on to opine that  the defendant  was protected by Section 60(b) of the Act  which ‘operates’ in this case relying upon the view expressed by Tek Chand, J. in Jagat Singh V. District Board, [AIR 1940  Lahore, 409] which had relied upon the opinion of Suleman, CJ in Mathuri Vs. Bhola Nath. [AIR 1934 All. 517].      The approach of the learned Single Judge in our opinion was erroneous.  Once it  was found that the Easement Act had no application  to the  State  of  Assam,  the  question  of "clearing the  way for  Section 60(b) of the Act to operate" cannot at  all arise. Of course, the principles of "justice, equity and  good conscience"  on which  Section 60(b) of the Easement Act  rests may apply in the facts and circumstances of a  given case  but that  is not  to say  that though  the Easement Act  does not apply, provisions of Section 60(b) of the Easement Act still "operate". Since, the legislature did not intend  the Act  to apply  to Assam,  the learned Single Judge could  not have  defeated that  intendment by  holding that "the  defendant of  the present  case was  protected by Section 60(b)  of the  Act." It is not permissible to extend the provisions  of  an  Act,  made  not  applicable  by  the legislature to a State, by a judicial order as it amounts to enacting legislation  by the  High Court, a power not vested in the judiciary.      Even otherwise,  the grant  of relief to the respondent even  on   the  principles  of  "justice,  equity  and  good conscience" which doctrine appears to have been pressed into aid, was  on the  facts and  circumstances of  the case, not permissible. A  court of  equity, it  should be  remembered, must so  act as to prevent perpetration of a legal fraud. It is expected  to do  justice by promotion of honesty and good faith, as  far as  it lies within its power. A party seeking relief in equity must come to the court with clean hands. In the present case, the respondent herein denied that he was a licencee of  the appellant  or had been given permissive use to raise  temporary structures on the suit land for a period of two  years. He  set up  a ‘title’  to the  suit land as a ‘prospective purchaser’  on the  basis of an ‘oral agreement to sell  in himself  claiming to have occupied the suit land in his  capacity as a "prospective purchaser". All the three courts, including  the High  Court, found  that plea  of the respondent  to   be  ‘false’   in  the   suit  for  specific performance filed  by the  respondent.  S.L.P.  against  the judgment and  decree, was  also dismissed by this Court. How then could the respondent be found entitled to any relief in equity, when  his defence  was based  on falsehood?  We have noticed the  conduct of  the respondent in denying the title of the appellant herein and putting forward a plea which has been concurrently  found by  all the courts to be false. He, therefore, certainly  did not  come to  the Court with clean hands. Thus, even if it be assumed for the sake of argument, that the principles of ‘justice, equity and good conscience’ underlying the  provisions of Section 60(b) of the Easements Act, could  be attracted  in a  given case  in the  State of Assam where  the Easements  Act had  not been  extended, the conduct of  the respondent  disentitled him to any relief on the basis  of ‘equity,  justice and  good  conscience’.  The reliance placed  by the  High Court  on the  Division  Bench judgment of the Lahore High Court in the case of Jagat Singh and others  vs. District  Board (supra) is misplaced. Indeed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

in the  Province of  Punjab, the  Easements Act  was not  in force and  Tekchand, J.  speaking for  the Curt  invoked the common  law   doctrine  of   ‘equity,   justice   and   good conscience’,  which   the  learned   Judge   found   to   be substantially the  same as  that contained  in Section 60 of the Easements  Act, to  decide the Letters Patent Appeal. On facts, it  was found  that the  land in  dispute  was  being actually used  by the  District Board  for the  purpose  for which it  had been  given to  it on  licence.  It  was  also established on  facts that  more  than  10  years  ago,  the defendant had  erected a boundary wall and a pucca gate at a considerable cost  and that  those works were of a permanent character. It  was in  this fact situation that Tekchand, J. held that  even if  the Easements  Act was not applicable to the Province  of Punjab, it was not open to the appellant to revoke the  licence, on  their option  and resume  the land, since construction  of permanent character had been build by the  defendant  acting  upon  the  licence  granted  by  the appellant to  him on principles of ‘justice, equity and good conscience’.  The  fact  situation  in  Jagat  Singh’s  case (supra) was,  thus, totally  different. The licencee therein had raised  a permanent construction acting upon the licence after  incurring   expenditure  for  raising  the  permanent construction and  it was for that reason that the court held that the  licence could  not be revoked at the sweet will of the licensor.  In  the  present  case,  the  respondent  has categorically denied  to be  a licencee  of the appellant or that he  had raised  any construction acting on the licence. He was,  thus, not  entitled to  any relief  in  the  second appeal.  The   judgment  of   the  High   Court  under   the circumstances cannot  be sustained. This appeal succeeds and is allowed.  The judgment  and order  of the  High Court are hereby set  aside and  the judgment  and decree of the Trial Court, as  confirmed  by  the  First  Appellate  Court,  are restored. We, however, make no order as to costs.