LexPANCHUGOPAL BARUA AND ORS. versus UMESH CHANDRA GOSWAMI AND ORS.
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A
PANCHUGOPAL BARUA AND ORS.
v.
UMESH CHANDRA GOSWAMI AND ORS.
FEBRUARY 12, 1997
'B
[DR. A.S. ANAND AND S.B. MAJMUDAR, JJ.)
Code of Civil Procedure, 1908 : Section JOO (as amended in 1976).
"Exercise of jurisdiction-In second appeal by High Court-Substantial
C question of law-Essential prerequisite for-Suit filed by owner for khas
possession of land on ground that he had allowed the licensee to make
pennissive use of the land for two years and raise. temp~rary structure thereon
with the understanding that he would remove the structure and deliver khas
possession of the land after two years which he failed to do-Licensee pleaded
that he occupied land not as a pemiissive user but as 'prospective purchaser'
D under an oral agreement of sale-Trial Court and First Appellate Court
concu"ently decided on questions off act Neither any pure question of law
nor any mixed of law and fact raised before those courts-However, in second
appeal High Court on the basis of a report of AdvocilTh Commissioner held
that the structure raised by the licensee being of a pennane11t nature, the
E licence became i"evocable under S. 60(b) of Easements Act and, there/ ore,
he could not be evicted-Held : High Court could not decide second appeal
on the basis of new point neither specifically set out in memorandum of
appeal and without f onnulati11g any "substantive question of law''-H ence,
High Court was not justified in entertaining the new point regarding ap-
plicability of S. 60(b) of Easements Act in second appeal.
F
Indian Easements Act, 1882 : Section 60(b ).
Licensee of land in State of Assam-Principles of "justice, equity and
good co11scie11ce''-Applicability of-Conditions f 01~Lice11ce granted in 1963
for two years with pennission to raise temporary structure thereon with the
G understanding that licensee would remove the structure · and deliver khas
possession of land after two yeal"-Licensee failed to do so-Suit filed/or khas
possession and decreed by Trial Court and First appellate Court-However,
in second appeal High Court on the basis of report of Advocate Commis-
sioner submitted in 1975, took the view that licensee had raised structure of
H a pennanent nature on land and even though Easements Act was not
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PANCHUGOPALBARUAv. U.C.GOSWAMI
applicable in State of Assam, S. 60(b) thereof was applicable on the principles A
of ''justice, equity and good co11scie11ce" and as such the licence had bec01:ne
irrevocable-Held : High Court erred in relying upon repoit of Advocate
Commissioner Submitted in 1975 when question of raising the sllUcture
pertained to the period of licence i.e. from 1963 to 1965-High Court's view
of applicability of S. 60(b) was also erroneous since it had f ou11d tltat the fAct B
itself did not apply to State of Assam-Grant of relief 011 the principlef of
"justice, equity and ·good conscience" was not pennissible wlte11 the licelzsee
himself had not come to the cozirt with clean hands.
1
·
Statute Law :
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Territorial operation-Central Act not applicable in a State-Held :
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Such Act could not be applied by High Court through its judicial power-Judi-
cial Activism.
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The appellant allowed the respondent to make permissive use of a
plot of land for a period of two years commencing from 1.6.1963 and to D
raise a temporary structure thereon for the purpose of his residence. There
was an understanding between the appellant and the respondent that the
respondent would remove the structure and deliver khas possession of the
suit land after the expiry of the period of two years. However, the respon-
dent failed to handover the vacant possession of the suit land to the E
appellant. Thereupon the appellant filed a suit for a dec.ree of khas
possession and compensation.
The respondent resisted the suit on the grounds that he did not
occupy the suit land as a permissive user under the appellant and that the
respondent had occupied the suit land under Ii contract of purchase. While F
this suit was pending the defendant-respondent also filed a suit against
the appellant for a decree of specific performance of an oral agreement to
sell the suit land on the ground that after being handed over the possession
of the suit land, as the 'prospective purchaser', the respondent had con-
structed a house over it. The Trial Court and the First Appellate Court
decreed the suit filed by ·the appellant and dismissed the suit filed by the G
respondent.
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