Bind Basni Prasad, J.@mdashThis is a second appeal by the defendants arising out of a suit for his ejectment from a room and a dalan and some open space in front of them situated in Mohalla Uncha Mandi of the city of Allahabad. One Mt. Kallo was the maid servant of the plaintiff. She stood in need of a house. The plaintiff permitted her to construct a house on the disputed site on the condition that the right of possession was for her lifetime, only and upon her death the plaintiff would be entitled to the possession of the site. Mt. Kallo died in 1940. The suit was brought by the plaintiff in 1944 on the ground that, in view of the conditions under which Mt. Kallo was allowed to construct and occupy the house, the plaintiff was entitled to the possession of the site. The defendants were the heirs of Mt Kallo.
2. It appears that subsequent to the oral agreement between the parties a deed was executed by Mt. Kallo on 19th November 1928, embodying the terms stated above and agreeing to pay a runt of Re. 1 per annum for the site. The trial Court decreed the suit for rent, but dismissed the suit for ejectment. In appeal the learned Judge of Small Cause Court decreed the suit also for the possession of the site and directed the defendants to remove the materials The defendants come in second appeal and contend that there being no valid agreement, they are licensees but u/s 60, Easements Act, the license cannot be revoked.
3. There can be no doubt that the sarkhat dated 19th November 1923, did not create a lease. The law requires that a deed of lease should be executed by the lessor and the lessee both or there should be counter-parts executed by each. When it is for a period of more than one year it should be registered also. These formalities were not complied with in this transaction. Therefore it cannot be treated as a lease. The fact remains, however, that Mt. Kallo did enter into possession of the site on the basis of the contract mentioned above. The question is as to what was the nature of her possession. It was certainly a permissive possession. There are a number of cases in which similar questions arose. In
4. There is also the recent case of
5. The appellants'' contention is that the qabuliat executed by Mt. Kallo is not admissible in evidence and that by virtue of Section 60, Easements Act they are not liable to ejectment. It is true that the appellants'' predecessor, Mt. Kallo; made certain constructions on this site and thus executed a work of a permanent character by incurring expenses; but she knew full well that after her death her heirs would not have any right of residence. Section 60, Easements Act, does not override any such condition in a license. Where a licensee executes a work of a permanent character under a clear understanding that he or his heirs may be called upon after certain time to leave the land, it is not open to him to plead such work as a bar against his eviction on a suit brought by the plaintiff in pursuance of the solemn undertaking given by him.
6. The qabuliat executed by Mt. Kallo may not be admissible in evidence for the transaction of lease, but certainly when it is treated as license it is admissible. The law does not require any formalities for a license.
7. The appeal has no force and it is hereby dismissed with costs. Leave to appeal under Letters Patent was asked and it is refused.
