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TMI Blog1952 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ipality, In the year 1917 the defendant's father, Ramakrishniah entered into an agreement in respect of 15-5/9 square yards' in D. No. 55 belonging to the plaintiff. Ramakrishniah intended to construct a building on his site and he found it necessary to have a boundary wall between his site and the plaintiff's site. They agreed that Ramakrishniah should be allowed to construct a masonry wall on the suit site to serve as a boundary and the plaintiff should continue to be the owner of the site. Another stipulation was that Ramakrishniah should not build any house or project his eaves over the wall at any time. He also agreed to keep the said wall in good repair at all times and in case it was damaged or got demolished, he was to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant committed a breach of the terms of Ex. A. 1 she should be entitled to recover the site. She also alleged that the defendant denied her title and, therefore) forfeited his rights under the document. Both the Courts found that the breach of the stipulation under Ex. A. 1 namely, that the defendant should not build any house or project his leaves over the wall at any time, is only a breach of warranty and not of a condition and, therefore, she would not be entitled to evict the defendant but would be entitled to recover damages. They also agreed in holding that the denial by the licensee of the owner's title would not entail forfeiture. Both the Courts accepted the contention of the defendant that the plaintiff having acquiesced in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s title by the licensee entails forfeiture. Unlike the case of lease, there is no statutory provision stating, that the licence is determined by forfeiture it the owner's title is denied. Section 60, Easements Act, prescribes the conditions under which a licence may be revoked. It reads: "A licence may be revoked by the grantor unless (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution." In the present case the licensee acting upon the license has built up a wall which is admittedly of a permanent character and incurred expenses in constructing the same. The licence is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 60(a) and (b) it is revocable at the will of the owner. For that reason, unlike in the case of a lease, the legislature did not provide for forfeiture in the case of a licence. Nor was learned counsel for the appellant able to place before me any case which applied the rule of forfeiture to a licence, "indeed all the cases that were cited at the Bar took the view that a denial of title of the owner by the licensee will not entail forfeiture -- see -- 'Dharmkunwar v. Fakira', 1901 All WN 157; -- 'Mt. Durga v. Baburam', AIR 1923 All 403; -- 'Akbar Ali Khan v. Shah Muhammad', 39 All 621; -- 'Amjad Khan v Shaffiuddin AIR1925All203 and -- 'Tripathi Anand Nath Tewari v. Jokhu Kumari', 113 Ind Cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement; but it is not likely that the constructions were put up on the sly. The nature of the constructions put up and the fact that both the parties encroached upon the wall indicate that they must have done it with the consent of each other and the plaintiff allowed the defendant to put up the structures encroaching upon the wall and did not question it for about a quarter of a century. On the facts I must hold that the plaintiff had acquiesced in the construction of the structures and is now not entitled to the discretionary remedy of a mandatory injunction. The two Courts below refused to exercise their discretion in her favour and I do not think I am justified in taking a different view on the facts found. 6 The learned Subordinat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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