TMI Blog1997 (2) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... liver 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 ..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possibly have produced error or defect in the decision of the case upon the merits. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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