Case Note & Summary
The appellant, Tulshidas Lokhande, filed a suit for declaration of ownership and possession of Plot No. 273 against the respondent, Madhukar Lokhande, who was his uncle. The appellant claimed that on 16th August 1983, he paid Rs.5,000/- to the respondent for the sale of the property and a sale deed was executed. The respondent was allowed to occupy the house as a licensee. In May 1988, the appellant demanded possession, but the respondent refused. The trial court partly decreed the suit, declaring the appellant's title but denying possession on the ground that the license was irrevocable under Section 60 of the Easements Act, 1882 because the respondent had constructed a permanent structure. The appellate court set aside the declaration of title and directed the appellant to refund the sale consideration with interest, while maintaining the denial of possession. The appellant filed a second appeal. The High Court framed substantial questions of law regarding the appellate court's power to set aside the declaration without a cross-appeal and the applicability of Section 60. The High Court held that the appellate court erred in reversing the declaration of title without any challenge by the respondent. On the issue of possession, the court distinguished between Section 60 (irrevocable license) and Section 62 (license coupled with transfer) of the Easements Act, 1882. It held that the license was coupled with a transfer of property (the sale deed) and was therefore revocable under Section 62. The permanent structure was constructed after the license was granted, so Section 60 did not apply. The High Court allowed the appeal, restored the trial court's decree of declaration of ownership, and granted possession to the appellant.
Headnote
A) Property Law - Sale Deed - Declaration of Ownership - Appellate court cannot set aside a decree of declaration of ownership in favour of the plaintiff without a cross-appeal or cross-objections by the defendant - The appellate court exceeded its jurisdiction by reversing the trial court's finding on title when the defendant had not challenged that part of the decree (Paras 5-6). B) Easements Act, 1882 - License - Revocability - Section 62 - Irrevocable License - Section 60 - A license coupled with a transfer of property is revocable under Section 62 of the Easements Act, 1882 - The defendant's license was not irrevocable under Section 60 as the permanent structure was constructed after the license was granted, not before - The plaintiff was entitled to possession (Paras 7-9).
Issue of Consideration
Whether the appellate court could set aside the declaration of ownership without a cross-appeal by the defendant, and whether the license was irrevocable under Section 60 of the Easements Act, 1882.
Final Decision
Second Appeal allowed. Judgment of the appellate court set aside. Trial Court's decree of declaration of ownership restored. Appellant entitled to possession. Respondent directed to hand over possession within three months.
Law Points
- Sale deed valid
- license revocable
- Section 62 Easements Act
- 1882
- Section 60 Easements Act
- irrevocable license
- permanent structure
- licensee
- owner's title
