1. ' HABIB-UR-RAHMAN SHAIKH, J.---The applicants, through this Civil Revision Application, have challenged the order dated 31-5-2005 passed by the learned VIIth Additional District and Sessions Judge, Karachi South in Civil Appeal No,190 of 2004, whereby the learned Appellate Court dismissed the Appeal of the applicants and upheld the order dated 9-9-2005 passed in Suit No,863 of 2000 by the learned IVth Senior Civil Judge, Karachi South, who while allowing the applications moved by the respondents, rejected the plaint under Order VII, Rule 11, C.P.C. Hence this Petition.
2. ' Briefly the facts of the case are that the applicants are the owners of the one portion of the Plot No,98, Depot Lines, Saddar, Karachi, while the another portion was in occupation of the Private Respondents. According to the applicants there was an open space through main gate of portion in occupation of the Private Respondents, which was being used by them and other tenant since 1962, but the Private Respondents created disturbance and wanted to close it by erecting wall, hence the applicants filed a Suit before the learned trial Court, who while allowing the applications of the respondents rejected the plaint under Order VII Rule 11 C.P.C., consequent upon, an appeal was filed by the applicants, which was also dismissed.
3. ' Vide order dated 24-8-2010, -this Court, while taking the question of maintainability of the Petition and converted the same into the Civil Revision Application and passed the order, operative part of the said order is as follows:-- "We have heard the learned counsel in our opinion, the proper remedy for the petitioners is to file a Civil Revision against the impugned order passed by the learned VIIth Additional District and Sessions Judge, Karachi South in Civil Appeal No, 190 of 2004. Consequently, this petition is converted into a Civil Revision Application subject to all just exceptions, to be disposed of in accordance with law."
4. ' Learned counsel for the applicants has, inter alia, contended that the two Courts below have' erred in law and did not apply their judicious mind and misunderstood the contentions raised before them. He-has further argued that the learned trial Court should have decided the Suit of the applicants on merits instead of rejecting the plaint under Order VII, Rule 11, C.P.C. And so also the learned Appellate Court dismissed the Appeal of the applicants without appreciating the law and facts produced before it. The orders passed by the learned Appellate Court are based on conjuncture and surmises and did not appreciate the law of easement placed before. It is contended by the learned counsel for the applicants that finally, learned counsel for the applicants prays for setting aside the orders of both the Courts below by allowing this Civil Revision Application.
5. ' On the other hand, Mr. Saddat Yar Khan, learned counsel appearing on behalf of the Private Respondents has vehemently controverted the arguments of the learned counsel for the applicants and has argued that the two Courts below have rightly dismissed the Suit and the Appeal of the applicants, as according to him, the applicants being the licensee of the Private Respondents were living under the illusion of easement. No cause of action claimed by the applicants. He has further argued that according to the lease documents, the lease of the applicants has been expired and the applicants should have approached to the respondent No,3
(MEO) for redressal of their grievance and/or renewal of the leasehold rights. He has further argued that the applicants cannot claim their easement rights on the Plot, which is in the name of the Private Respondents. In support of his case, learned counsel for the respondent has relied upon the case of Alagiri Chetty and another v. Muthuswami Chetty and others (AIR 1940 Madras 102) and Messrs Pakistan Warranted Warehouse Limited v. Messrs Sindh' Industrial Trading Estates Limited 1991 SCM R 119.
6. ' I have heard the learned counsel for the respective parties and perused the entire material available on record.
7. Prima facie, it appears from perusal of the record that the applicants are in possession of the Plot No, 98/1 while the Private Respondents are the owners of the Plot No, 98 of the said premises and only entrance gate which is existed on Plot No,98 of the said premises, the applicants claim the entrance rights from the main gate ion Plot No,98, which is in possession of the Private Respondents by invoking under the law of Easement. The record further reveals that there A are no denial that Plot No, 98/1 is in the name of the applicants, which is road facing and the main entrance gate being used by the applicants is installed at Plot No,98 belonging to the Private Respondents. The record further reveals that the applicants may arrange their own separate entrance gate, as the Plot Nos.98 and 98/1 are road facing.
8. 'Furthermore the record reveals that father of the Private B Respondents, has expired in the year 1972, who issued license to use the gate to the applicants, but after expiry of Grantor, the licensee, could not renew the license from the legal heirs of late Grantor so the case would not fall within section 15 of the Easements Act, 1882, which reads as follows:-- "15. Acquisition by prescription:---Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years.
9. In the case of Messrs Pakistan Warranted Warehouse Limited v. Messrs Sindh Industrial Trading Estates Limited 1991 SCM R 119 it has been held that:- "S.13(a)---Right of way---Claimed of as an easement of necessity---Courts below rejecting the same on the assumption that such necessity must be absolute---Held that: The consensus of judicial opinion seems to be that an easement of necessity is an easement without which the property cannot be used at all---The same be not a convenient mode of enjoyment of the property---Further held: That where there are other ways for ingress and exit an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient."
10. In the case of Alagiri Chetty and another v. Muthuswami Chetty and others (AIR 1940 Madras 102) it has been held that:-- "(a) License---License is purely matter personal between licensor and licensee---It is deemed to have elapsed with death of licensor.
11. ' A license does not create an interest in the land as it is merely leave to do a thing lawfully which otherwise would be unlawful and it is thus a matter purely personal between the grantor and the grantee of the license. Such license must be held to have elapsed with the death of the licensor."
12. ' The definition of license in the Easements Act, 1882 reads as under:-- "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
13. By the very definition in section 52 a right which is a license cannot be an easement. Except that a license and an easement both are rights exercisable on the property of others and there is nothing in common between them. The essential difference between them is that while an easement is a right to the beneficial enjoyment of a dominant heritage and a license is a personal right unconnected with any property of the grantee. The license originates in permission while an easement arises out of grant or prescription. A license is revocable at the will of Grantor except when it is coupled with grant and also it is mandatory law that the license is not binding on the transferee of the Grantor. Moreover, the applicants have a road facing to their residence to fix the Gate for their ingress and egress.
14. ' For up-going discussion and the case, it reveals that the applicants have not proved their case according to the Easements Act and the applicants in the learned trial Court had made the Party to the respondent No,3 without giving prior legal notice to filing of the Suit and section 273 clearly shows that no Suit shall be instituted, against any Board or against any member of a Board, or against any officer or servant of a Board in respect of any Act done, or purporting to have been done, in pursuance of this Act or of any rule or byelaw made thereunder, until the expiration of two months after notice in writing has been left at the office of the Board.
15. In view of the facts and circumstances and the case-law, learned counsel for the applicants has failed to establish his case for claiming the relief and the orders of both the Courts below need no interference. Hence, this Civil Revision Application is dismissed with no order as to costs.