' The appellant has challenged the Judgment and decree of the civil Court dismissing his suit for possession and mesne profits. The decree has been confirmed in appeal by the Additional District Judge, Karachi. The admitted position in the case is that after the institution of the sui the Quarter which was subject matter of dispute was allotted to the respondent and the suit was dismissed on the ground that appellant had no subsisting title in respect of Quarter which was subject-matter of the dispute. Mr. S. H. Rizvi, the learned counsel for the appellant contended that in view of provisions of section 116 of the Evidence Act, the respondent was estopped from challenging the title of the appellant as he admittedly was put in possession of the house by the appellant. ##TSE# Section 116 of the Evidence Act is in the following terms :-
116. Estoppel of tenant and of licensee of person in possession. - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy be permitted to deny that the landlord of such tenant had, at beginning of the tenancy, a title to such immovable property; and no person who came upon any immoveable property by the licence of the person in possession thereof shall be permitted to deny that such person had. a title to such possession at the time when such licence was given."
' A perusal of above provision of law will show that a licensee or a tenant is estopped from denying that his licensor or the landlord as the case may be, had title to the property at the time when such tenancy or licence was given. In the case before me, firstly, the respondent denied that he was the licensee of the appellant and claimed the premise in his own right. Secondly, even if it was found that he was the licensee of the appellant in respect of the suit property, the provision of section 116 of the Evidence Act could not be of any help to the appellant in the case as the respondent's case was that subsequent to the coming into possession of the premises the title of the appellant extinguished and same vested in respondent by virtue of a subsequent allotment of the property in his favour. In this view of the matter the provision of section 116 of the Evidence Act could -not be a bar to the case set up by the respondent in the suit. Mr. S. H. Rizvi, was unable to satisfy me as to how the claim for possession and mesne profit could be maintained by the appellant in these circumstances without challenging the subsequent allotment of the property by the K. D. A. In favour of respondent. The evidence in the suit was recorded on 16th May, 1967, when the allotment order was produced in the evidence by the respondent. In spite . Of having notice of the subsequent event no steps were taken by the appellant either to amend the plaint or to include a prayer challenging the subsequent allotment in favour of the respondent by the K. D. A. The two Courts below were, therefore, quite justified in dismissing the suit and holding that in view of the allotment of suit property to the respondent the suit for possession could not succeed without joining K. D. A. as a party in the suit and without challenging the allotment made in favour of respondent. There is no merit in this appeal which is accordingly dismissed but in view of the fact that the respondent has not appeared and contested this appeal, there will be no order as to costs.