' UMAR ATA BANDIAL, J.--- This civil revision is filed against the order passed by the learned Appellate Court on 13-10-2009 declining interim relief to the petitioner and thereby affirming the order passed by the learned civil Court on 26-1-2008.
2. The petitioner is a licensee of the respondent Civil Aviation Authority ("Authority") under Licence Agreement dated 26-1-2005 which has admittedly expired on 13-2-2007. The Licence Agreement allowed the petitioner licensee to install advertisement signboard on land belonging to the Licensor Authority. Clause 7 of the Licence Agreement confers a right on the licensor to retain exclusive possession of the site; clause 14 thereof prohibits construction of a permanent structure at the site; and clause 32 thereof imposes special conditions on the Licensee specified in Appendix-A which includes the condition that on expiry/ termination of the Licence Agreement, the signboard shall vest in the Authority and the licensee shall not claim any kind of compensation.
3. In the foregoing background, learned counsel for the petitioner submits that notwithstanding the expiry of the Licence Agreement on 13-2-2007, the petitioner has retained possession of the site by regularly paying monthly rent to the respondent-Authority in respect thereof. He argued that by accepting rent from the petitioner the licensor Authority has acquiesced to the petitioner becoming its tenant at the site. Furthermore, he submits that the petitioner has made investment of a permanent nature at the site which confers a right on the petitioner to special notice under section 60 of Easements Act, 1882. He relies upon Ebrahim Brothers Limited v. Wealth Tax Officer PLD 1985 Kar.
407. Accordingly, submits that the orders passed by the learned lower courts have committed illegality and injustice in declining interim relief to the petitioner.
4. Learned counsel for the respondent points out that although the Licence Agreement expired on 13-2-2007 yet the petitioner has managed to retain the site belonging to the Authority on the strength of stay orders obtained in different civil suits. One suit which bears the same title as the present petition was filed on 30-12-2005 but was ultimately dismissed on 26-1-2009. Another suit filed by the petitioner on 2-12-2006 was consigned to the record on 21-7-2009 on the basis of an arbitration clause between the parties. The petitioner filed the suit underlying the present revision petition on 24-1-2008 wherein the injunction was refused by the learned trial Court on 26-1-2008 but on 15-2-2008 the learned Appellate Court granted ad interim injunction which was vacated by the order dated 13-10-2009 impugned in the present revision petition. Presently, the petitioner has filed yet another civil suit for permanent injunction on 20-10-2009 which is pending in the Court of Mr. Muhammad Aslam Panjota, learned Civil Judge, Lahore. He submits that on account of said litigation the petitioner has succeeded to prolong his possession of the site against the wishes of the licensor Authority. Monthly payments were accepted by licensor Authority because these represent value for use of Authority's property and refusal to receive would have necessitated further litigation. However, with effect from the date when the Authority admittedly took over possession of the site and the signboard, the Authority is willing to refund any excess amount collected by it. In view of the said facts he submits that impugned order are correct and justified.
5. The court has examined the nature of the relationship between the petitioner and the Authority. It is one of licensee or licensor. Under the License. Agreement exclusive possession of the site is retained by the licensor. It is also obvious that the petitioner has continued to keep his signboard on the site after the Licence Agreement had expired on 13-2-2007. This was done without extension of the Licence Agreement and contrary to the wishes of the licensor Authority. The allegation that the petitioner managed this on the strength of orders of interim relief obtained from courts does have some force. Consequently, the petitioner's plea of acquiescence by the licensor Authority on this count is not spelt out from the record. Whether the acceptance of monthly rent by the licensor Authority constitutes acquiescence is rebutted by the latter's strenuous efforts to get interim injunction recalled. To recover payment for disputed use of a property is also consistent with a right to compensation which may not estop a claim for revocation of licence. This fact cannot without proof of consent or waiver by the licensor disentitle the latter at this stage from dispossessing the petitioner. Of course the legal effect of such payments may be settled after evidence of the parties is recorded in the suit.
6. This brings one to the only significant legal point made by the learned counsel for the petitioner.
This is based on section 60 of Easements Act, 1882. It is claimed that on account of investment of a permanent nature made by the petitioner on the property of the respondent Authority, the petitioner has acquired an interest in the property and cannot be dispossessed summarily.
Learned counsel for the Authority has questioned how such a right is claimed by the petitioner under the Licence Agreement when exclusive possession of the property is retained by the Authority and the petitioner is liable to surrender his structure, a signboard, at the expiry of the licence. The special condition under clause 32 read with the Appendix A of the Licence Agreement makes the investment by the petitioner liable to retention by the licensor Authority at the end of Licence Agreement. The claim of permanent investment by the petitioner is therefore, untenable without evidence in its affirmation. The petitioner is at liberty to show by evidence that its investment was assured by the respondent to remain protected. That claim cannot, however, be presumed at the interlocutory stage of proceedings.
7. Prima facie, the legal right of the petitioner under the Licence Agreement is of a limited nature as a licensee. The transitory nature of such a right is explained in Zaidi Enterprises v. C.A.A. PLD 1999 Kar.
181. The petitioner's possession of the advertising site is being interfered by the licensor Authority which admittedly controls access thereto. In such circumstances, according to the Ebrahim Brothers case relied by learned counsel for the petitioner, claim for a tenancy by the petitioner also stands excluded. The ingredients of section 60 of the Easements Act, 1882 are not apparent on the face of the record; in the present case of a licence an interim order of the court cannot be issued by presuming that the licensor Authority has accepted some enlarged status of the petitioner over its property. No prima facie case for relief is made out. This petition is accordingly dismissed.