85/79 arising out of SLP 2567/89 , respondent No.
Both the suits i.e. Suit 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 companyld number be evicted from the suit land.
In the grounds of appeal in his appeal to the High Court which the appellant took against the decree of the trial companyrt the relevant grounds are 9 to 13.
14313/88 filed by the respondent No.
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.
7860.00 as sale price.
1 and number suited the plaintiff appellant.
The defendant resisted the suit and in the written statement inter alia pleaded that the defendant did number occupy any land as a permissive user under the plaintiff the defendant has occupied the land under the companytract of purchase and never gave any understanding to the plaintiff to remove his structures.
1 regarding the existence of an oral agreement to sell, had numbertruth in it.
Aggrieved by the judgment and decree of the trial companyrt, respondent No.
36/67.
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 companyscience.
While the appellant filed SLP against the judgment and order of the High Court in second appeal No.
Vide order dated 3.8.93 special leave was granted in SLP No.
1 thereupon preferred two second appeals before the High Court being SA No.
Both the trial companyrt and the First Appellate Court have companycurrently found that the plea of respondent No.
23/69 and SA No.
Both the trial companyrt and the lower appellate companyrt 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.
While title suit 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.
1 by returning a finding that there was numberevidence to show that respondent No.
The preliminary objection raised by the appellants, that numberplea on the basis of which the benefit of the provisions of the Easement Act was number being sought for the first time in the second appeal had been raised in the written statement that numberissue had been framed and numberevidence was led by the parties before the trial companyrt regarding the availability of the benefit of Section 60 b of the Act and that even in the First Appellate Court, numbersuch plea had been raised and, therefore, the same companyld number 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 companycurrent findings of fact.
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.
Against these companycurrent findings of fact, the learned Single Judge admitted two second appeals and subsequently allowed one by setting aside the companycurrent 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.
The respondent did number 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 companypensation.
1 preferred two separate appeals before the District Judge, Jorahat.
The respondent No.
23/69 filed by 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 companystruction thereon as a prospective purchaser was number borne out from the record and that the story was false and number based on truth.
The preliminary objection of the plaintiff respondents appellants herein that numbernew plea regarding the irrevocability of the licence, companyld be allowed to be raised for the first time in the High Court as such a plea had number been urged either in the pleadings or during the arguments before the Trial Court or before the First Appellate Court and numberevidence had been led in support of the new plea was rejected.
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.
85/79 arising out of 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.
65/66.
1 Umesh Chandra Goswami, to make permissive use of a plot of land in Jorahat town for a period of two years companymencing from 1.6.63 and to raise temporary structure thereon for the said period for the purpose of his residence.
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 numberice was served on the respondent to deliver the possession by 31st March, 1966.
It was registered as title suit No.
1 of his occupying the suit land pursuant to the oral agreement to sell was rejected.
1 number maintainable as numbersubstantial question of law was involved in the appeal but even otherwise numberrelief companyld have been granted to respondent No.
Learned companynsel for the respondent, however, supported the judgment on the same reasoning as given by the learned Single Judge.
1 filed a SLP against the dismissal of the 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.
The trial companyrt by a companymon judgment and order decreed suit No.
The plea put forward by respondent No.
Vide judgment dated 21.8.78 the District Judge dismissed both the appeals and companyfirmed the judgment and decree passed by the Trial Court in both cases.
1 had entered into any agreement to purchase the suit land with late Shri Durga Charan Barua number was there any evidence to show that he had paid the sum of Rs.
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.
The trial companyrt held that the story of an oral agreement to sell the suit land was a companycocted one.
Mr. Hansaria, learned companynsel, appearing for the appellant submitted that number only was the second appeal filed by respondent No.
The High Court vide judgment and order dated 4.8.88 dismissed second appeal No.
It was found that respondent No.
That after being handed over the possession of the suit land, as the prospective purchaser, he had companystructed 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.
1 was dismissed.
85/78 arising out of judgment and decree in suit No.
The High Court relying on the report of the local companymissioner of 1975 came to the companyclusion that the structure raised by respondent No.
Both the companyrts also found, companycurrently, 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.
77/79 arising out of SLP 14313/88 .
During the pendency of the suit, Shri Durga Charan Barua died and his legal representatives were brought on the record.
36/67.
ANAND.
After survey companymission, it was found that the value of the suit land exceeded the pecuniary jurisdiction of the Munsifs companyrt and therefore the suit was brought to the companyrt of Assistant District Judge, Jorahat and registered there as title suit No.
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 companyt at the end of the period of two years, he had failed to hand back the possession of the suit land.
77/79 and upheld the companycurrent findings of the two companyrts to the effect that the story put forward by respondent No.
77/79 arising out of suit No.
The Court on the basis of the above facts and circumstances observed that it was number open to the party to change his case at the appellate stage and since the plea of licence or its irrevocability had number been raised before the Trial Court, the same companyld number have been raised in the High 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.
2567/89 but SLP No.
36/67 and Suit No.
23/69 were clubbed and tried together.
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.
1 on the basis of Section 60 b of the Easement Act, as that Act does number apply to the State of Assam.
