PLJ 2018 Karachi 1

MOHIUDDIN KHAN vs M/s. STATE LIFE INSURANCE CORPORATION OF PAKISTAN

CitationPLJ 2018 Karachi 1

CourtSindh High Court

Judge(s)Aziz-ur-Rehman

ResultSuit dismissed.

The Plaintiff has filed the instant suit on 11th May, 1999 for Declaration and Permanent Injunction with the prayers as below:-- a. to declare that the Plaintiff is a tenant of the Defendants in respect of land bearing Survey No, 7, Sheet RY-5, situated at Lakie Road, Karachi. b. to declare that the Plaintiff being a tenant of the Defendants in respect of plot of land bearing Survey No,

7. Sheet RY-5. situated at Lackie Road, Karachi cannot be ejected/evicted therefrom otherwise than in due course of law. c. to declare that the Plaintiff being lawful tenant of the Defendants is entitled to carry on the business of parking of vehicles on plot of land bearing Survey No, 7, Sheet RY-5, situated at Lackie Road, Karachi without any hindrance from the Defendants jointly and severally. d. permanently restrain the Defendants jointly and severally their agents, servants employees, officials successors-in-interest and or any other person claiming through or under them from ejecting/evicting the Plaintiff from the plot of land bearing Survey No,

7. Sheet RY 5. situated at Lackie Road. Karachi. e. permanently restrain the Defendants jointly and severally their agents, servants, employees, officials successors-in-interest and or any other person claiming through or under them from causing hindrance or let in lawful business of parking of vehicles being carried on by the Plaintiff on the plot of land bearing Survey No, 7, Sheet RY 5, situated at Lackie Road, Karachi. f. any other relief or reliefs which this Hon'ble Court deems fir and proper, in the circumstances of this case. g. cost of the suit.

2. The brief facts relevant for the purpose of deciding of this suit as disclosed in the plaint are as follows.

3. Defendant No, 1, is a Corporation established by the Life Insurance (Nationalized) Order, 1979.

Defendant No, 2, is a Private Limited Company incorporated in Pakistan under the Companies Ordinance, 1984 and stated to be owner of land bearing Survey No, 7, Sheet RY 5, Lackie Road, Karachi [hereinafter referred to as 'subject plot/. Defendant No, 2, is wholly owned subsidiary of Defendant No, 1 and the latter has full power and authority to deal with the properties belonging to Defendant No,

2. As averred in the plaint, by a 'Public Notice' dated 19.4.1985. published in daily Newspaper of Karachi, Defendant No, 1 had invited tenders for renting out the 'subject plot' for Car parking purpose. The Plaintiff No, 1 in response, submitted his bid for acquiring the 'subject plot' on rent which offer/bid was accepted by Defendant No,

1. Per Plaintiffs version rent was payable for the subject plot from the date of handing over of possession of the subject plot to the Plaintiff.

4. On acceptance of Plaintiff's offer/bid an agreement dated 25.8.1985 [Annexure '13' to the Pliant], was executed between the Plaintiff and Defendant No, 1 which contains the mutually agreed terms' and conditions' for and in respect of subject plot. According to the Plaintiff's stand, Plaintiff and Defendant No, 1 under the said agreement of 25.8.1985 acted as 'tenant' and 'landlord'. The use of words 'Licensor' or 'Licensee' in the said agreement, according to the Plaintiff, in no manner can control or negate the 'relationship' of `landlord' and 'tenant'. Defendant No, 1, as per assertions made in the plaint used to issue receipts invariably for 'rent' and not for 'license charges'/`fee'.

Moreover, upon execution of agreement dated 25.8.1985, the Plaintiff submitted a detailed plan of gates and site plan of the `subject plot' for approval of Defendant No,

1. Pursuant to approval of Defendant No, 1, complete actual and physical possession of the `subject plot' was handed over to the Plaintiff.

5. The Plaintiff as alleged, after taking over actual and physical possession of the 'subject plot' developed the same by spending quite a big amount on construction of RCC beams, steel gates, water well with pump and an office room. Thereafter, the plaintiff started using of the 'subject plot' for public parking of vehicles. According to plaintiff since, taking over 'possession' of the subject plot, the Plaintiff is enjoying un-hindered physical possession of the 'subject plot'. The relationship between the Plaintiff and Defendant No, 1, according to the Plaintiff stand is that of a tenant and landlord. Not only this, upon expiry of the agreement dated 25.8.1985 [Annexure 'IV to the plaint], on 30th September, 1988, the Plaintiff has become a 'statutory tenant' of Defendant No, 1.

6. Defendant No, 1, no doubt, under its' letter dated 19.1.1989 forwarded a 'draft of fresh agreement' to the Plaintiff but thereby. Defendant No, 1, in actual fact had attempted to convert tenancy rights of the Plaintiff in respect of the 'subject plot' to that of a licensee. The terms and conditions as contained in the Draft Agreement sent to the Plaintiff were materially different not only in `form' but also in 'substance' from the original license agreement of 25.8.1985. Upon refusal of Plaintiff to sign/execute such Draft Agreement, Defendant No, 1, nevertheless. continued to receive rent in respect of the subject plot. On 8.4.1989, Defendant No, 1, however, refused to accept the same.

Plaintiff, thereafter, started to deposit rent in the Court of VIth Senior Civil & Rent Controller, Karachi (South), in Misc. Rent Case No, 697/1989.

7. Per Plaintiffs version, right from the date of execution of the 'License Agreement' dated 25.08.1985 and handing over of possession of the 'subject plot', Defendant No, 1, never exercised any, control over the subject plot. The 'parking plot' is/was always open for use of general public and not restricted to 'tenants', visitors' and `employees' of Defendant No,

1. The 'Electric charges' etc. in respect of the 'subject plot' was exclusively payable by the Plaintiff. Per Plaintiffs stand, payments made by Plaintiff to Defendant No 1 be deemed as `rent' under the Sindh Rented Premises Ordinance, 1979, [XVII of 1979]

8. Plaintiff viz. Mohiuddin Khan s/o Niaz Muhammad Khan in the plaint of the above suit, has further averred that on or about 06.05.1999, some people claiming to be employees/officials of the Defendant No, 1, came over to the 'subject plot' and then they had attempted to `dis-possess' the Plaintiff from the 'subject plot' forcefully and illegally. Nevertheless, at the intervention of the people who had gathered there, the employees/officials of Defendant No, 1, did not succeed to take over the vacant possession of the 'subject plot'. The employees/officials of Defendant No, 1 while, going back, however, had extended threats to the plaintiff for dis-possessing him from the `subject plot'.

For and in view of such circumstances, the matter was also reported to the Deputy Commissioner, District South, Karachi, the Senior Superintended of Police, District South, Karachi and the Station House Officer. Mithadar Police Station, Karachi. Again, on 10.05.1999, according to the plaintiff version, some/officials of Defendant No, 1, came at the 'subject plot' and they again tried to `forcibly' and 'illegally' take over possession of the 'subject plot'. But this time as well, due to the 'security arrangements' made in advance, the `employees'/'officials' of Defendant No, 1 were compelled to go back without any success.

9. Under the aforesaid scenario the instant suit was filed on 11th May, 1999 for DECLARATION & PERMANENT INJUNCTION against the defendants with the prayers reproduced hereinabove.

10. On 11.05.1999, when the above suit came-up before the Court then the following order was passed:--

1. For Orders on Misc. No, 3453/99

2. For Orders on Misc. No, 3454/99

3. For Orders on Misc. No, 3455/99 Mr. Abul Inam, advocate for the plaintiff 11.5.1999

1. Allowed

2. Time for payment of Court-fees is extended by one week.

3. It is the case of the Plaintiff that agreement dated 25.8.1985 was executed between the Plaintiff and Defendant No,

1. After taking over the actual and physical possession of the plot in question, the Plaintiff started using the same for parking the public vehicles and since then was enjoying the said facility unhindered. In May, 1989 Defendant filed Suit No, 583/1989. This Court passed the order which has been reproduced in Para 8 of the affidavit of plaintiff. On 6.5.1999 some persons claiming to be the employees of Defendant No, 1 came to site plot and attempted to forcibly dispossess the plaintiff from the said plot. This matter was reported by the plaintiff to the Deputy Commission, District South, SSP and also to SHO Mithadar Police Station, Karachi. On 10.5.1999 another attempt was made.

In view of above-mentioned facts, ad-interim injunction is granted as prayed against the defendants till the next date of hearing i,e, 28.5.1999. Notice be issued to defendants for the next date. [Underlining is mine].

Sd/-11.5.99 JUDGE"

11.Upon service, Defendants filed 'common written statement' on 23.6.1999, wherein, the adverse 'averments' and `assertions' leveled by the Plaintiff were specifically and forcefully denied. In the 'written statement', it was averred that the `relationship' between Mohiuddin Khan s/o Niaz Muhammad Khan [Plaintiff herein] and Defendant No, 1 viz. M/s. State Life Insurance Corporation is that of 'licensee' and 'licensor'. The 'LICENSE AGREEMENT' dated 25.8.1985 executed between Defendant No, land Plaintiff, as such, is not enforceable under law. Per Defendants' stand. Plaintiff has no legal character or otherwise, has any right in the 'subject plot'. Plaintiff, thus has no 'locus standi' to institute the above suit and that too merely on the basis of an expired license agreement dated 25.8.1985 [Annexure 'IT to the Plaint].

12. Per Defendant No, l's stand. Defendant No, 2, is the owner of 'subject plot' of land bearing Survey No,

7. Sheet RY-5, situated at Lakie Road, Karachi, which is wholly owned sub-sidiary of Defendant No, 1 i,e, M/s. State Life Insurance Corporation of Pakistan. Per averments, made in the 'written statement', Defendant No, 1 besides, not only authorized and empowered to issue LICENSE.

TERMINATE, RENEW it but also fully authorized and competent to take all necessary steps inclusive but not limited to litigation, claiming `mesne profit', seeking injunction and/or ejecting/evicting of trespassers from the 'subject plot'.

13. According to Defendants' stand, 'quotations' were invited for 'open space' of 'subject plot' on 'LEAVE AND LICENSE BASIS', being sufficient for parking of 360 Cars through 'public notice' of 19.4.1985, having published in 'Daily Newspaper' English 'DAWN' Karachi and not on renting out basis, as alleged, by Plaintiff. Further, the 'quotations' were invited for CAR PARKING with a right to reject any 'offer'/' bid' without assigning any reason. Plaintiff, in response thereof, no doubt, offered for 'specified' use of 'subject plot' through his letter dated 29.4.1985. Per 'written statement", Plaintiff's offer was found suitable, as such, the same was accepted by the management of the Plaintiff. The acceptance of such. 'offer' was also apprised/communicated to the Plaintiff's through Defendants' letter dated 21st July, 1985 [Annexure 'A/1' to the Plaint]. Upon acceptance of the Plaintiffs 'bid'/' offer', a 'license agreement' dated 25.8.1985 [Annexure 'B' to the Plaint], was consequently executed between Defendant No, 1 and Plaintiff. Under the mutually agreed 'terms' and `conditions' thereof, the 'relationship' between Defendant No, 1 and Plaintiff was that of a 'Licensor' and the 'licensee' and not that of `landlord' and 'tenant' as being claimed by plaintiff.

14. In the 'common written statement', it was also averred that the 'subject plot' is under 'control' and 'possession' of Defendants. The claim of Plaintiff regarding so called 'exclusive possession' of `subject plot', was specifically and vehemently denied. Besides, the alleged 'relationship' of 'landlord' and 'tenant' as having been claimed by the Plaintiff, was not only categorically controverted but also specifically denied as being false and incorrect. According to the Defendants' stand, under the provisions of the 'License Agreement' dated 25.8.1985 [Annexure 'B' to the Plaint]. Plaintiff is merely a `licensee' and not a tenant. This factum is also evident from 'handing' and 'taking over' letter of 9th September. 1985 [Annexure 'C' to the Plaint].

15. Per Defendants, stand, the object of the License Agreement dated 25.8.1985, was only to grant a license to plaintiff. Calling such 'License Agreement of 25.8.1985, now as 'Tenancy Agreement' by no means affects and/or alters the 'relationship' of `Licensor' and 'licensee' created under their 'terms' and 'conditions' of the said License Agreement dated 25.8.1985, signed between the Defendant No, 1 and the Plaintiff. Under the said 'License Agreement' Plaintiff had been allowed only to do certain things, such as, collecting of Car Parking Charges. Reference in this regard, can be made to `Clause 7' of the License Agreement dated 25.8.1985, which reads as follows: "7. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents, servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event." [Underlining is mine].

Besides, a further reference can be made to 'Clause 5' [wrongly mentioned as 'Clause 4'] of said License Agreement dated 25.8.1985 where-under, the 'subject plot' was to remain in 'joint possession' of Plaintiff and Defendants. Per mutual agreed 'terms' & 'conditions' each lock' of gate shall have 'two keys', one of which was to remain in possession of Defendant No, 1/Licensor and the other one with Plaintiff/Licensee. The said 'Clause 5' of the License Agreement dated 25.8.1985 [Annexure `B' to the Plaint] reads as follows:-- "5. Each lock of the above said gates shall have two keys one of which shall remain in the possession of LICENSOR." [Underlining is mine].

16. Accrual of any 'cause of action' in favour of the Plaintiff on the dates referred to and mentioned in `para 13' of the plaint or any other date was specifically denied by Defendants. Lastly, in 'common written statement' it was asserted/prayed that the instant suit as `framed' and 'filed' by Plaintiff besides, having been filed with 'ulterior motives' and `malafide intentions', is not maintainable, as such, the same is liable to be dismissed with cost.

7. Before proceeding further, at this juncture I would like to refer to Defendants' suit bearing No, 583 of 1989 IMIs. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin & another Khan./ filed on 21.5.1989 for DECLARATION. PERMANENT INJUNCTION. MESNE PROFIT AND POSSESSION before this Court and an order passed therein, on 19.10.1989. Being relevant, order dated 19.10.1989 is reproduced here-in-below:-- "1. For Hg. of CMA-6995/89

2. For Hg. of CMA-6996/89

3. For Hg. of CMA-6997/89 19.10.1989 Mr. Makhdoom Ali Khan, Advocate for Plaintiff. Munir A. Malik, Advocate for defendant.

By consent it is ordered that the defendants shall furnish bank guarantee in the sum of Rs, 100.000 with 6% mark-up within three days hereof with the Nazir of this Court, whereupon order dated 15.10.1989 whereby the defendants, their agents and employees were restrained from allowing third' parties to park their cars at the plot question and/or from collecting car parking charges from them shall stand vacated. Again by consent, the defendants are restrained from using the plot for purposes other than car parking or parting with the physical possession of the plot in question to any one till disposal of the suit or till further orders.

The learned counsel for the defendants also undertakes on behalf of the defendants to deposit all the arrears of license fee deposited by them in the Lower Court within four weeks hereof and to further deposit further license fee payable by them in this Court every month till disposal of this suit.

In view of this consent order CMA No, 6995/89. CMA-6996/89 and CMAs-6997/89 & 3683/89 stand disposed off. [Underlining is mine].

Sd/- JUDGE"

18. Plaintiff herein [Defendant No, 1 in Suit No, 583 of 1989], it appears, had also filed an application under Order XXXIX Rules 1 & 2, CPC [CMA No, 6484 of 1998] in Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & Another v. Mr. Mohiuddin Khan]. The said application [CMA No, 6484 of 1998], filed by present plaintiff [who is Defendant No, 1 in Suit No, 583 of 1989], when came- up before the Court on 18.7.1998 then, the following order was passed: "1. For orders on CMA No, 6483/98

2. For orders on CMA No, 6484/98 18.07.1998 Mr. Arif Hussain Khilji, Advocate Defendant No, 1.

1. Granted.

2. It is contended by Mr. Arif H. Khilji that plaintiffs are closing the entrance gate of Building No, 1 situated at Chundrigar Road which in fact will amount to illegal & unauthorized dispossession of the Defendant No,

1. It was argued that if the, plaintiffs are permitted to raise hindrance or destruction then it will also amount to violation of this Courts order dated 19.10.1989. Issue notice to Plaintiffs for 24.07.1989. Till then Plaintiffs are directed to maintain status-quo. [Underlining is mine].

Sd/- JUDGE"

19. Later on, in view of 'pro' and 'contra', assertions and averments made in pleadings on 13.12.2006, the following six ^[06] issues were settled in the suit in hand:--

1. Whether the suit is not maintainable?

2. Whether the suit is time barred?

3. Whether the suit is barred by promissory estoppels?

4. What relationship the Plaintiff and the Defendant had i,e, either of tenant or of a licensee?

5. To what relief, if any, the Plaintiff is entitled to?

6. What should the decree be?

20. Subsequently by order dated 21.2.2007 and with consent of parties. Mr. Yousuf Moulvi, Advocate, was appointed as 'commissioner' for recording evidence of the parties. Order dated 21.2.2007 as being relevant, is also reproduced here-in-below:-- "21.2.2007 Mr. Zia-ul-Haq Makhdoom. Advocate for the plaintiff Mr. Kh. Shamsul Islam Advocate holding brief for Mr. Siddiq Mirza, Advocate for the defendants.

Mr. Zia-ul-Haq Makhdoom has submitted that in this matter a commissioner may be appointed to record the evidence of the pal-ties. Mr. Kh. Shamsul Islam on instructions from Mr. Siddiq Mirza has extended his no objection for appointment of a commissioner to record the evidence of the parties.

By consent of the learned counsel for the parties Mr. Yousuf Moulvi, Advocate, is appointed Commissioner to record the evidence of the parties. The parties may file their respective affidavits- in-evidence alongwith the relevant documents before the learned commissioner. The commission to be concluded within six months. The fee of the learned commissioner will be Rs, 10,000/- per witness to be borne by the respective parties." [Underlining is mine].

SD/- JUDGE"

21. In the evidence, recorded before the learned commissioner, Mohiuddin Khan [PW-1'], in his 'examination-in-chief besides, producing his 'affidavit-in-evidence' as 'Exh-4' produced other documents as 'Exh-P/4/1' to 'Exh-P/4/31'. Like-wise, Defendants' witness viz. Hafiz Arshad , Hussain Shaikh NDW-11, in his `examination-in-chief , apart from producing his 'affidavit-in-evidence' as 'Exh-D/1' produced other documents as 'Exh-D/2' to 'Exh-D/16'. Upon conclusion of evidence, the report submitted by the learned commissioner was taken on record vide order dated 24.8.2009 and then, the above suit was ordered to be fixed for arguments.

22. On 19.10.2016, 1.11.2016, 7.11.2016, 23.11.2016; 8.12.2016 and 21.12.2016 when the above Suit No, 606 of 1999 [Mohiuddin Khan s/o Niaz Muhammad Khan Vs State Life Insurance Corporation of Pakistan & another], filed by the Plaintiff for 'DECLARATION' AND `PERMANENT INJUNCTION' and Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], filed by the Defendants herein for DECLARATION. PERMANENT INJUNCTION, MESNE PROFIT AND POSSESSION, came-up before me then, I heard Mr. Moin Qamar a/W Mr. Zia-ulMakhdoom, learned counsel for the Plaintiff in Suit No, 606 of 1999 and Defendants in Suit No, 583 of 1989 and Mr. Zeeshan Abdullah, learned counsel for the Defendants in Suit No, 606 of 1999 and Plaintiffs in Suit No, 583 of 1989 and also gone through the available record before me minutely with their valuable assistance.

ISSUE NO. 1:--

23. Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom, learned counsel for the Plaintiff while, arguing Suit No, 606 of 1999 'issue-wise' forcefully contended that as far as, Issue No, 1 which is to the effect as to Whether the suit is not maintainable is concerned, it is in fact for the Defendants to establish that the Plaintiff's suit as 'framed' and 'filed' is not maintainable. So far, Plaintiffs stand is concerned, per Mr. Moin Qamar, the above suit filed by plaintiff is not only maintainable but also deserves to be decreed in favour of Plaintiff as prayed. Mr. Moin Qamar while, advancing his arguments on the maintainability of the suit, emphatically contended that Plaintiff, as being a 'tenant' of Defendants in respect of the 'subject plot' i,e, Survey No, 7, Sheet RY-5, situated at Lakie Road. Karachi, in no manner, is liable to be ejected by show of force on the part of Defendants. In this regard, learned counsel, focused the attention of this Court towards' pares 10 & 11 plaint and forcefully contended that on or about 6.5.1999, some un-known people claiming to be `employees'/'officials' of Defendant No, 1, had come at the 'subject plot' and had attempted to dis-possess the Plaintiff from the `subject plot', indeed, forcibly and without observing 'due process' of law. But due to 'intervention' of people who had gathered there, the illegal attempt so made by Defendants for dispossessing the Plaintiff forcibly could not succeed. Per learned counsel, on 10.5.1999, officials/employees of Defendant No, 1, once again came on the `subject plot' obviously with an intention to dispossess Plaintiff from the `subject plot' forcibly and without adopting due course of law. Even this time as well, the malafide attempt meant for dis-possessing the Plaintiff from the 'subject plot' stand failed because of prior security arrangements made by Plaintiff in view of repeated threats having been advanced to Plaintiff by Defendants. For and in view of the above scenario, the Plaintiff was constrained to file the above case for relief sought in the plaint.

24. Against the above, Mr. Zeeshan Abdullah, learned counsel for the Defendants while, arguing Issue No, 1, submitted that in suit in hand, the controversy between the parties, in fact, revolves around the `License Agreement' dated 25.8.1985 [Exh-P-4/31. Per Mr. Zeeshan Abdullah, learned counsel for the Defendants, the 'relationship' between the Plaintiff and Defendants is that of 'licensee' and `Licensor' and not of 'tenant' and 'landlord', as claimed by Plaintiff. The paramount element/nucleus point involved needs to be ascertained is the intention of the parties. Such intentions of parties can and surely be ascertained from the contents of the said License Agreement [`Exh.P-4/31. Per Mr. Zeeshan Abdullah, learned counsel for the Defendants, the said License Agreement dated 25.8.1985, is an undisputed document. Being, this is the position, the 'terms' & `conditions' of 'Exh.P-4/3' are fully and absolutely binding on parties to the License Agreement dated 25.8.1985 [Exh.P-'4/3'1.. The Plaintiff, it is needless to say, has not only admitted the execution of License Agreement dated 25.8.1985 in Para 3 of the plaint but it was later-on also produced and exhibited in plaintiffs 'examination-in-chief as ExhP-'4/3' of course, without any objection. Moreover, the contents thereof, have also been admitted by the Plaintiff during his 'cross examination' in words as "I see exhibit rExh-P-4/31 and say it is correct that the document is signed by me". Like-wise, Plaintiff herein [who is Defendant No, 1] in Suit No, 583 of 1989 [M/s. State Life- Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], has also admitted the factum of execution of the said License Agreement of 25.8.1985 in his cross examination where, he states that "I see the agreement 'exhibit 9' and it is signed by me. The agreement was read over to me and signed the same after I understood the same. "[It is worth to mention herein that Exh.9 is equivalent to `Exh. P'4/31

25. With regard to Issue No, 1, it is significant to note, the Defendant No, 1 herein, had filed Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] and the Plaintiff herein, had filed an application under O.XXXIX Rr..1 & 2 r/w S. 151, CPC [CMA No, 6484 of 1998], in Suit No, 583 of 1989. The said application when, came-up before the Court on 18.7.1998 then the Court while, issuing notice to Defendants herein, parties to Suit No, 583 of 1989, were directed to maintain status quo. The said Suit No, 583 of 1989, filed by Defendants herein, it is worth to mention herein, was dismissed for 'non-prosecution' on 11.03.1999. From such position, it appears, Defendants herein, after dismissal of their. Suit No, 583 of 1989 [Xs. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] for non-prosecution, ex-facie had made attempts to dispossess Plaintiff herein, from the 'subject plot'. Reference in this regard can be made to `paras 10 & 11 of the plaint' in the present suit. Being relevant, the said paras are reproduced here-in-below:-- "10. That on or about 06.05.1999 some people claiming themselves to be employees/officials of Defendant No, 1 came to the said plot and attempted to forcibly and illegally dispossess the Plaintiff from the said plot. It was on the intervention of the people who gathered there that the employees/officials of Defendant No, 1 were persuaded not to take law into their own hands and refrain from taking illegal action of dispossession of the Plaintiff from the said plot. The employees/officials of the Defendant No, 1 went back extending threats of illegal dispossession to the Plaintiff. The matter was immediately reported by the Plaintiff to the Deputy Commissioner, District South, Karachi the Senior Superintendent of Police, District South, Karachi and the Station House Officer. Mithadar Police Station, Karachi. [Underlining is mine].

11. That again on 10.5.1999 some employees/officials of Defendant No, 1 came to the said plot and made an attempt to forcibly and illegally take possession of the said plot from the Plaintiff. Since by now the Plaintiff has made security arrangements the employees/officials of Defendant No, 1 went back empty handed hurling threats to come back again with a bigger force and dispossess the Plaintiff from the said plot." [Underlining is mine].

26. Keeping in view the above scenario, it appears that Plaintiff herein was constrained to file the suit in hand [Mohiuddin Khan v. M/s. Stale Life Insurance Corporation of Pakistan & another] on 11.05.1999 for DECLARATION. AND PERMANENT INJUNCTION, which in my view cannot be said and/or otherwise, termed as not maintainable absolutely, much-less, for the relief of seeking restraining order against the Defendants herein, viz-a-viz. ejecting/evicting Plaintiff herein, from the 'subject plot' of land bearing Survey No, 7, Sheet RY5, situated at Lackie Road, Karachi, forcibly and without observing 'due process' of law. ISSUE No, 1 accordingly is answered in 'NEGATIVE'.

ISSUE NO. 2:--

27. As far as 'Issue No, 2' which is to the effect as to, whether the suit is time barred is concerned, Mr. Moin Qamar, learned counsel for the Plaintiff vehemently contended that the Plaintiff herein upon dismissal of Defendants' Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] for 'non-prosecution' on 11.3.1999 and of vacation of `status quo order', operating therein against the Defendants herein. [Plaintiffs in Suit No, 583 of 1989]. Plaintiff herein, thus was constrained to file the instant suit on 11.5.1999 inter alia for seeking restraining order/permanent injunction against Defendants, their employees and/or agents jointly and severally from entering upon the `subject plot' and/or causing any let or hindrance in the lawful business of parking of vehicles and/or creating any hurdle in the way of the plaintiff viz-a- viz. collecting 'car-parking fee' and/or otherwise interfering in any manner with the possession of the plaintiff. Per Mr. Moin Qamar, the instant suit as 'framed' and "filed" under the aforesaid given circumstances, in no manner, as alleged, is time barred.

28. Conversely, Mr. Zeeshan Abdullah, learned counsel for the Defendants, forcefully contended that Plaintiff ex-facie through the suit in hand interalia is seeking a declaration regarding his alleged character as 'tenant' instead of 'licensee' of Defendants in respect of the 'subject plot'. Per Mr. Zeeshan, prayer clause 'a' is for a declaration which is to the effect that Plaintiff be declared as a 'tenant' of the Defendants regarding the 'subject plot' bearing Survey No, 7, Sheet RY-5, situated at Lakie Road, Karachi. For and in view of above position. Mr. Zeeshan Abdullah urged that in such like situation time period for a suit of 'declaration' is governed by Article 120 of Limitation Act [IX of 1908], which provides a period of six ^[06] years viz-a-viz. filing of a suit that is to say when such right for to sue accrues. For a declaration to any legal character or right to any property for to sue accrues when such legal character, if any, or right to sue is denied. Per Mr. Zeeshan Abdullah since.

Plaintiff viz. Mohiuddin Khan s/o Niaz Muhammad Khan, in the suit is hand is seeking a declaration regarding his alleged legal character' as 'tenant' and not as 'licensee' of Defendants, as such, the time period for filing of such kind of suit is six ^[06] years under Article 120 of the Limitation Act. 1908 [IX of 1908].

29. Mr. Zeeshan Abdullah, learned counsel for the Defendants in this regard also made reference to `para 8' of the plaint [i,e, in Suit No, 606 of 1999], wherein, Plaintiff herein admits the factum of filing of Suit No, 583 of 1989 before this Court. In the said Suit No, 583 of 1989, it has been explicitly averred that Plaintiff herein, is a 'licensee' and not a 'tenant' as being claimed by the Plaintiff herein. Besides, in the said suit filed by Defendants herein, a declaration has also been sought that after expiry of License Agreement dated 25.8.1985 on 30.9.1988, the Plaintiff herein,, viz. Mohiuddin Khan, has no right, power and/or authority either to enter upon the 'subject plot' or otherwise, allow any third party to park their cars and/or to collect parking fees/charges. Per Mr. Zeeshan Abdullah, the Defendant No, 1/Licensor has specifically denied any legal character of the Plaintiff as being a tenant i,e, when Suit No, 583 of 1989, was filed on 21.5.1989.

The right to sue, if any, for a declaration and his so-called legal character accrued. in the year 1989, therefore, filing of the instant suit on 11.5.1999 i,e, after about 10 years from the date of denial, as such is hopelessly time barred.

30. With regard to the issue of time bar of the instant suit, it is significant to note, the instant suit filed on 11.5.1999 by the Plaintiff herein, is not only for declaration but also for permanent injunction.

Per 'averments' and 'assertions' made in paras 10 and 11 of the plaint of the above suit, 'cause of action' in favour of Plaintiff regarding injunction accrued in year 1999. The instant suit, as far as, prayer for injunction is concerned, in my view, is not time barred. Rather, it is within time. The question, however, remains to be answered is as to whether Plaintiff herein, is entitled for any relief of 'permanent injunction'. The same being an 'equitable' and 'discretionary relief, in my view, can. be seen and decided in the light of facts involved. At this juncture, it seems appropriate to refer to and reproduce herein para 13 of the plaint in the suit in hand which reads as follows: "13. That the cause of action for the suit arose at Karachi within the jurisdiction of this Hon'ble Court firstly on 25.8.1985 when the said plot of land was given on lease by the Defendant No, 1 to the Plaintiff and on 9.9.1985 when actual and physical possession of the same was delivered to the Plaintiff by the Defendants and on expiry of the lease agreement dated 25.8.1985 when the Plaintiff became a statutory tenant of the Defendants and on 6.5.1999 and 10.5.1999 when the Defendants through their employees/officials made attempts to illegally or forcibly dispossess the Plaintiff from the said plot and since then it continues to accrue from day to day." [Underlining is mine J.

31. From bare perusal of the above, it would be seen that the `License Agreement' dated 25.8.1985 rExh-P-4/31, at the time of filing of the instant suit on 11.5.1999, was no more in field/in existence.

Rather,. it had expired long ago i,e, on 31.9.1988. This position is quite evident from 'clause 1.a' of the License Agreement dated 25.8.1985 [Exh-P-4/31. The said 'clause 1.a' as well as 'clause 13' of License Agreement dated 25.8.1985 [Exh.P-'4/31 being relevant are reproduced hereinbelow:-- "1a. This License agreement shall commence with effect from the 1st day of October, 1985 from which date the Licensee has leave and License to use the said plot of land, which is in the ownership and possession of the "LICENSOR", for a period of 3 years on payment of Licensee fee Rs, 20.160.00 (rupees twenty thousand one hundred sixty only) per month for the privilege of use of the said plot of land for car parking. [Underlining is mine].

13. This License shall be valid, in the first instance, for a period of three years and may be extendable exclusively at the option of the LICENSOR on terms and conditions to be decided by the Licensor. The License agreement hereby executed by the parties, if not renewed as provided for hereinabove before the expiry of the said period, shall automatically stand cancelled. For renewal, a written request by the LICENSEE made one month before the expiry of the term hereby created or of any subsequent extended term will be required. Upon receiving such request, the Licensor may at his sole discretion, grant him a License for the use of the said portion of plot of land for a further term and on such conditions as may be decided by the Licensor. On the expiry of the period of Licensee as herein provided or of any extended period or on revocation of the same the License shall stand cancelled." [Underlining is mine].

32. No doubt, it is also an admitted position that the aforesaid License Agreement rExh-P-4/31, upon expiry thereof, has never been renewed, as provided under 'clause 13' of the said License Agreement dated 25.8.1985. Under such circumstances, the filing of the suit in the year, 1999, on the basis of an expired LICENSE AGREEMENT DATED 25.8.1985 [Exh.'P-4/31, as far as, declaration to the effect, and extent of prayer Clauses [a], [b], & [c] is concerned, in my view is beyond the period of six ^[06] years as such, the reliefs sought by the Plaintiff to the aforesaid effect, in my humble opinion, are hopelessly time barred. ISSUE NO. 2 is partly answered in 'POSITIVE' and partly in 'NEGATIVE' as far as, relief for injunction against the eviction/dis-possession of the plaintiff through 'show of force' is concerned.

ISSUE NO. 3:--

33. Issue No, 3 which is to the effect and extent as to whether the suit is barred by promissory estoppel, has not been pressed at the time of arguments. Accordingly, the same is answered as 'NOT PRESSED'.

ISSUE NO. 4:--

34. With regard to Issue No, 4 which is to the effect as to what relationship the Plaintiff and the Defendants had i,e, either of tenant or a licensee. Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom.

Learned counsel for the Plaintiff, contended that admittedly Defendant[s] had invited tenders by Public Notice dated 19.4.1985 rExh-P-4/11, published in 'Daily' Newspaper `DAWN of Karachi for 'renting out' the `subject plot' for car parking place. In response thereof, Plaintiff herein, had submitted his bid/offer for acquiring the subject plot' on rent. The bid of the Plaintiff as being suitable was accepted by the Defendant No, 1 vide its' letter dated 21.5.1985 r Exh-P-4/21. Mr. Moin Qamar while, arguing the case, focused the attention of the Court towards 'tender notice' published in Daily 'DAWN' of 19.4.1985, and contended that the very purpose of such Tender Notice was nothing but to 'rent-out' the subject plot for car parking on 'Rent basis' and not on License basis. For proper understanding the point of contention raised by Mr. Moin Qamar. I would like to refer to and reproduce herein the said 'tender notice' [` Exh-P-4/11 here-in-below: "TENDER FOR RENTING OUR CAR PARKING SPACE State Life Insurance Corporation of Pakistan (State Life) intend to rent out on leave and licence basis an open space of plot Survey No, 76, Sheet RY 5, Lackie Road Near Platforms No, 5.& 6 of City Railway Station and adjacent to State Life Building No, 2-A. Karachi sufficient for parking of 360 cars.

Quotations are, therefore, invited which must be sealed and marked 'QUOTATION FOR CAR PARKING'. A pay order for Rs, 10,000/- in favour of State Life, Insurance Corporation of Pakistan as caution money shall-accompany the quotation which must reach Real Estate Division. State Life 5th floor, State Life Building No, 9, Dr. Ziauddin Ahmed Road, Karachi within 15 days of publication hereof. Successful bidder shall have to deposit security Deposit equal to three months licence fee and advance licence fee of one month within a week of final acceptance of his offer failing which caution money shall be forfeited and tender treated as cancelled. I Underlining is mine].

State Life reserves the right to reject any or all of the offers without assigning any reason. Further detail if required may be obtained from Mr. Azad Ali Khan, Manager Real Estate Division on Phone No, 529196.

(M. HAMED MALIK)

DEPUTY GENERAL MANAGER, REAL ESTATE DIVISION STATE LIFE INSURANCE CORPORATION OF PAKISTAN

35. According to Mr. Moin Qamar, the Plaintiff, is thus a tenant in respect of 'subject plot' of land Survey No, 7, Sheet RY5, situated at Lackie Road, Karachi, measuring .6000 sq.yrs and not a `licensee' as being alleged by Defendants herein. Learned counsel for the Plaintiff Next contended that upon acceptance of Plaintiff's bid, an Agreement dated 25.8.1985 [`Exh-P-4/31, was signed between the parties i,e, Defendant No, 1 and Plaintiff herein. Per Mr. Moin Qamar, under the agreed 'terms' & 'conditions', the said License Agreement creates a tenancy between the parties. Mr.. Moin Qamar next contended that parties to the said Agreement [Exh-P-4/3'] thereafter had always acted as 'landlord' and 'tenant'. Mr. Moin Qamar, also contended that the words 'LICENSOR' or 'LICENSEE' used in the said License Agreement dated 25.8.1985 rExh-P-4/31, by no means control or negate the substantive relationship of 'landlord' and `tenant': Moreover, per Mr. Moin Qamar, Defendant No, 1 herein, has invariably issued receipts for 'Rent' and not for License Charges/fee. In this regard, reliance was placed on two RENT RECEIPTS No, 18501 dated 15.11.1987 for Rs, 20160/- and No, 19022 dated 11.1.1988 for Rs, 20160/- [i,e, `Exh-P-4/4' and `Exh-P-4/5' respectively], issued by Defendant No, 1 viz. M/s. State Life Insurance Corporation of Pakistan. The aforesaid two receipts i,e, Exh.P-'4/4' & Exh.P-4/5' respectively are reproduced here-in-below:-- Authorised Officer {{IMAGE}}

36. Mr. Moin Qamar, learned counsel for the Plaintiff on the strength/basis of the aforesaid two receipts [Exh-P-'4/41 and [Exh-P-'4/51, argued that since, in two receipts word RENT has been used, as such, the Plaintiff is a 'tenant' and not a 'licensee' as being claimed by Defendants. Apart from the above, even word RENT has been used in the acceptance letter of Defendant No, 1 dated 21st May, 1985 [Exh-P'4/2']. For ready reference [Exh-P-'4/2'], is also reproduced here-inbelow: "State Life Insurance Corporation of Pakistan Principal Office, Karachi-4 Real Estate, Renting/Car-Parking/Lackie Rd./85.21st May. 1985.

Mr. Mohiuddin Khan, 31/107. Peoples Town, S.F. Colony, Karachi-35, Dear Sir, Sub:Quotation for Car Parking - Lackie Road, Near Platform 5 & 6. Opp. City Railway Station, Karachi.

This has reference to your quotation dated 28.4.1985, for renting out Car-parking space at Lackie Road, Karachi, which we are pleased to inform you, has been accepted. The lease & licence Agreement to be executed is under preparation and will be sent to you in next few day's time.

Please, remit a total sum of Rs, 80,640/- as detailed below:--

1. Rs, 60,480/- toward deposit equal to three month's fee.

2. Rs, 20,160/- being advance fee for one month.

We may inform you that the rent of the plot will start from the date of possession to be given to you.

Kindly remit the above amount within a week of receipt of this letter enabling us to proceed further.

[Underlining is mine].

Thanking you.

Yours faithfully.

(Azad A: Khan) Manager (RED) "

37. Mr. Moin Qamar, learned counsel for the Plaintiff also argued that upon execution of the Agreement dated 25.8.1985 rExh-P4/3'], the Plaintiff herein had submitted a detailed 'plan of gates' and `site plan' 'of the ground site to Defendant No, 1 and upon approval by Defendant No, 1, thereafter, a complete, effective, actual and physical possession of the 'subject plot' was handed over to the Plaintiff [see `Exh-P-4/261. To see as to whether the Plaintiff's contention raised hereinabove, is true and correct or the position remains otherwise, I would like to refer to and reproduce herein, Exh.P-'4/26' as below:-- "STATE LIFE INSURANCE CORP. OF PAKISTAN REAL ESTATE- DIVISION 9.9.1985.

SUBJECT: HANDED/TAKEN OVER With reference letter No, Car Park/Cont/L.R./85. Certified that I have jointly handed/Taken over the possession 6000 Sq. Yards of State Life Lackie Road Plot (Ground) from Mr. Mohammad Ayub Khan, Security Incharge Real Estate Division on September 09, 1985.

HANDED OVER BY:TAKEN OVER BY: Sd/-Sd/- Mohammad Ayub KhanMr. Moiuddin Security InchargeHouse No, 21/107, RED.Peoples Town S.F. Colony,, Karachi.

COUNTER SIGN: Sd (AZAD A. KHAN) Manager, R.E.D."

38. Regarding renewal of Agreement dated 25.8.1985 [Exh.'P-4/31 in terms of 'clause 13' thereof. Mr. Moin Qamar, learned counsel for the plaintiff submitted that, indeed, the Defendant No, 1 herein, had forwarded vide its letter dated 19.1.1989 [' Exh-P-4/27] a 'fresh draft agreement' but the Plaintiff upon perusal thereof did not sign it, as Defendant No, 1, in fact thereby had attempted to convert the `relationship' of 'landlord' and 'tenant' between the parties [i,e, Defendant. No, 1 and Plaintiff] into 'Licensor' and 'licensee'.

39. The Defendant No, 1 upon refusal of the signing of draft agreement refused to accept the so- called rent where-after Plaintiff started its' deposit in the Court of VIth Sr. Civil Judge and R.C.

Karachi [South], in Misc. Rent Application No, 697 of 1989. According to Mr. Moin Qamar, learned counsel for the Plaintiff, ever since, the execution of original Agreement dated 25.8.1985 [`Exh-P- 4/3'] and handing over possession of the 'subject plot' vide rExh-P-4/26'], Defendant No, 1 herein, did not exercise any sort of control over the `subject plot'. The parking plot, it is urged, was open for use of general public and in no manner it was restricted to the tenants, visitors and employees of Defendant No, 1.

40. Moreover, the electricity charges in respect of the `subject plot' were always payable i,e, exclusively by Plaintiff and `no default' in this regard was ever committed by the Plaintiff. All payments, so made, per Mr. Moin Qamar, be treated and deemed as RENT under the SRPO, 1979 [XVII OF 19791, Mr. Moin Qamar, learned counsel for the Plaintiff, in furtherance of his arguments vehemently contended that the Plaintiff, as being a statutory tenant of Defendants, cannot be evicted/ejected from the 'subject plot' much-less through show of force and without making recourse to the provisions of SRPO, 1979 [XVII OF 1979]. Mr. Moin Qamar next urged that Plaintiff is in 'exclusively possession' of the 'subject plot'. Reference in this regard was also made to the 'cross- examination' of Plaintiffs witness viz. Riazuddin s/o Ziauddin recorded in Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] wherein, per Mr. Moin Qamar, the said witness [PW-1], has made an admission to the extent and effect that it is correct to suggest that the plot in suit is in exclusive possession and control of Defendant No, 1'

[Plaintiff herein].

41. Lastly, Mr. Moin Qamar, learned counsel for the Plaintiff urged that the Plaintiff, besides, a 'statutory tenant' is holding `exclusive possession' of the 'subject plot' as such, the Plaintiff cannot be evicted, save and except, in accordance with the provisions of SRPO, 1979. In support of his contentions. Mr. Moin Qamar, learned counsel for the Plaintiff placed reliance on i. PLD 1964 SC 106 [Abdullah Bhai and others v. Ahmad Din] ii. PLD 1962 [WP] Kar 663 [Ahmad Din v. Abdullah Bhai and others] iii. 1999 CLC 1076 [Sindh Industrial Trading Estate Ltd. through Secretary v. Kemia Industries Ltd. through Secretary] iv, PLD 1999 Kar 181 [M/s. Zaidi's Enterprises & others v. Civil Aviation Authority & others], v. PLD 1971 Kar 35 [Government of West Pakistan v. Meezan Corporation & another] vi. PLD 1970 Kar 657 [Mst. Shirinbai v. Saleem Jamal & 7 others] vii. PLD .1963 [WP] Lahore 418 [Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board & others], viii.

PLD 1957 [WP] Kar 631 [M. A. Faruqi v. Sajid Ali Khan & another]. ix. 1998 CLC 374 [Royal Foreign Currency v. The Civil Aviation Authority &another], x. 2005 CLC 19821M/s. Sign Source v. Mls. Road Trip Advertisers & another], xi. 2006 CLC 1611 [M/s. Javed & Co. v. Mls. Daewoo Pakistan Motorway Services Ltd. through Chief Executive].

42. The relevant portions therefrom, referred to and relied upon by Mr. Moin Qamar, learned counsel for the Plaintiff, in support of his contentions respectively read as follows: i. PLD 1964 SC 106 [Abdullah Bhai and others v. Ahmad Din] "....The line of demarcation between a lease and a licence will sometimes be a very thin though there is no doubt as to the principle applicable. A Tease as will appear from Section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i,e, the right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personem and by the lease a right in rem is transferred to the lessee. On the other hand a "licence" as will appear from its definition in Section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass in so far, as it is a right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be a licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licensee. This contract may be specifically enforced, but it grants only a right in personam.

As will appear from what is, stated above the criterion for distinguishing between a lease and a licence is simple. i,e, whether any right in immovable property itself, a right in rem, has passed to the person concerned, but the determination of this question may be difficult in the circumstances of a particular case. It will be a matter of an inference from all the attendant circumstances. Where there is a document, of course, the evidence will have to be considered with due regard to the provisions of Sections 91 and 92 of the Evidence Act ....".(Underlining is mine].

II. PLD 1962 [WP1 Kar 663 (Ahmad Din v. Abdullah Bhai and others)

"16. We may now summarise our conclusions the most distinctive feature between a lease and a licence is that, in the former there is a transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee the exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incidents of ownership in granting a lease the lessor transfers this important right to tile lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee; lie totally. &excludes himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitutes property. On the other hand, in the case of a licence there is a total absence of transfer of interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to do or continue to do something in or upon the immovable property of the grantor, which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property, that occupation does not confer upon him the right of exclusive possession as understood in law. Under the Transfer of Property Act, apart from the transfer of the right to enjoy property, there has to be also a consideration paid or promised and the lease has to be for a certain time. But these elements may often not be inconsistent with a case of licence. The mere fact that the occupant under the agreement pays a monthly sum to the owner may not be conclusive because a licence may be for consideration. Similarly, the" mere fact that he was to cease to occupy the property by a certain date may not be decisive because a licence may be for a term. Therefore, when both these elements are present the factor which will decide the question whether the grant is a lease or a licence, would be the right of the grantee to exclusive possession of the property in the sense indicated above. If there is such a right then the transaction is clearly one of lease because in it there has been a transfer of interest in the property. When there is a written instrument recording the transaction it is the substance of it and not the form which will govern the case. The question of intention arises only when the terms whether written or oral are not clear or when they are consistent both with the existence of a lease or a licence. It is only in such cases that the matter has to be decided with reference to the true intention of the parties deduced from all the circumstances of the case. The use of certain technical expressions in a document cannot turn a lease into a licence. Where, therefore, the nature of the transaction presents some difficulty in construing whether it amounts to a lease or a licence, the question, to be asked is, has the occupant acquired an "interest in land", that is, has the owner transferred a certain right of ownership in a way which extinguishes the enjoyment by him of that right and vests the same exclusively in the transferee. If he has then it is a case of a lease and not of licence." [Underlining is mine]. iii. 1999 CLC 1076 [Sindh Industrial.Trading Estate Ltd. through Secretary u. Kemia Industries Ltd. through Secretary] "...It would be seen that a license merely grants the Licensee permission to enter upon the licensor's property and do something, which in the absence of such grant would be unlawful; such grant 'or permission would amount to a license (as per Section 52 of the Easements Act). However, in our opinion, if such a grant creates an. interest in the property the same could not be 'construed as a license and in this connection the intention of the parties would also have to be considered._ In the present case, as we have already observed that the respondents applied for an allotment of the plot in question; paid substantial amounts to the appellants in lieu thereof whereupon the plot was allotted to the latter on the terms and conditions appearing therein. No doubt one of the terms was that the industry for which the plot was allotted should be completed within eight" months of the allotment order; however, it is the respondent's case that they were unable to do so due to the appellants failure to provide the infrastructure facilities and hence they could not be penalized on this score. The subsequent correspondence between the parties also establishes that right from the very beginning it was the parties intention that the respondents be allowed to construct buildings of a permanent nature on the plot in question for which purpose they would be given ownership rights through proper lease documents. In the circumstances of the case we are of the view that based upon the documents brought upon the record the transaction between the parties amounted to an agreement to lease rather than a licence and hence the provisions of the Easements Act are not at all relevant to the facts of the matter. Reference can be made to Pakistan Employees Housing Society Ltd. v. Anwar Sultana PLD 1969 Kar 474 wherein similar circumstances a Division Bench of this Court came to the conclusion that the allotment order in question was in fact an agreement to lease ...." [Underlining is mine]. iv. PLD 1999 Kar 181 [Ws. Zaidi's Enterprises & others v. Civil Aviation Authority & others] "In order to decide the issue of maintainability of the suits and the pending Miscellaneous Applications, we have, to determine whether the agreement, several clauses of which have been reproduced above, is a lease or a licence. The line of demarcation between a lease and licence is some times very thin and one will have to look at the actual wordings and the spirit of the A agreement rather than the terminology used therein to find out the real nature of the relationship between the parties (PLD 1982 Karachi 532 and PLD 1963 Lahore 418). In Ahmed Din v. Abdullah Bhai and others PLD 1962 Karachi 663 at page 676 the learned Division Bench observed as follows;-- "The most distinctive feature between a lease and a licence is that, in the former there is a transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee the exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incidents of ownership. In granting a lease the lessor transfers this important right to the lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee he totally excludes himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitutes property. On the other hand, in the case of licence there is a total absence of transfer of interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to do or continue to do something in or upon the immovable property of the grantor which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property. that occupation does not confer upon him the right of exclusive possession as understood in law." [Underlining is mine]. v. PLD 1971 Kar 35 [Government of West Pakistan v. Meezan Corporation & another] "7. The agreement was not merely for the use of the property in a certain way or on certain terms while the possession and control was of the Railway. It was put in exclusive possession of the Corporation and although there were no express words to that effect the nature of the acts to be done by the Corporation required exclusive possession of the plot in dispute. A similar situation arose In re: Burmah Oil Co. (AIR 1933 All. 735) before the Full Bench presided over by that distinguished and revered jurist Sulaiman, C. J., the consideration being an agreement to give temporary use of land on monthly rent described as a licence for constructing petroleum installation to which the licensor was to have access at any time and the licensee was to rebuild or repair at licensor's request in which no right to transfer or sublet was given to the licensee and on breach of condition of the terms of the agreement the licensor was entitled to determine the licence by seven days' written notice and to enter into possession. It was held that the document in all these circumstances must be held to be a lease. Their Lordships observed with reference to the definition of a 'license' as contained in the Easements Act and of a 'lease' as defined in the Transfer of Property Act and the Stamp Act that even though the parties called the document an agreement by way of a license and although throughout the document had been referred to in the same phrase the substance of the terms agreed upon was to be looked into and that the distinction between a 'license' and a 'lease' was a very narrow and thin one. The outstanding factors to be considered were exclusive possession and enjoyment of the land for the time being subject to the restrictions of inspection at sonic times by the licensor Their Lordships finally held that from all points of view the document between the parties there amounted to a lease chargeable with duty under the relevant section of the Stamp Act...." [Underlining is mine]. vi. PLD 1970 Kar 657 [Mst. Shirinbai v. Saleem Jamal & 7 others] "6. The question for consideration under this issue is whether the above document was intended to operate as a demise of property was only an agreement for a lease, as it purports to be Section 105 of the Transfer of Property Act, 1882, defines a lease as the transfer of an interest in immovable property for a consideration which is called rent. This section does not lay down the manner in which a lease has to be executed, which is left entirely to the intention of the parties, therefore it is settled law that the question whether an instrument amounts to a lease or is only an agreement to obtain a lease depends on the intention of the parties, which is to be gathered from the instrument as a whole, the circumstances in which it was executed and even from the conduct of the parties.

As was pointed out by Ellenborough, C. J. in a very old case Pool v. Bentley (104 E R 66) "The rule to be collected from all the cases is that the intention of the parties as defined by the words of the instrument must govern the construction ... [Underlining is mine].

14. Their Lordships of the Supreme Court observed that the period of occupation fixed under the compromise recorded in the Rent Controllers Court was more than one year, that this .compromise was not registered, and then observed at page 110 of the Judgment:-- "According to Section 49 of the Registration Act no document which is required by Section 17 of the Registration Act to be registered can either create a right in immovable property or be received as evidence of such right. According to Section 107 of the 'Transfer of Property Act, a lease for a period of more than one year can be created only by a registered instrument or by an oral agreement coupled with delivery of possession. The document with which we are dealing is hit by both these provisions. The Transfer of Property Act is applicable to the area with which we are dealing and the lease could not have come into existence at all by means of this document. According to Section 17 of the Registration Act a document evidencing a lease for more than one year is compulsorily registerable." [Underlining is mine].

36. The only question that remains for determinations is the plaintiffs claim for ejectment. Mr. Fakhruddin argued that the plaintiff is entitled to eject the defendants because of their flagrant breach of the provisions of the unregistered lease. On the other hand, learned counsel for the defendants argued that as the period of the unregistered lease was to have been 15 years, the defendants could not be ejected until the expiry of that period (which would be 15 years from 1.3.1958) therefore, according to learned counsel, the suit was premature, and in support of this argument he relied on the provisions of Section 53-A of the Transfer of Property Act, 1882.

37. Section 53-A of the Transfer of Property Act, in so far as it is relevant, reads as follows:-- "53-A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has in part performance of the contract taken possession of the property or any part thereof, or V the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken, or continued in possession, other than a right expressly provided by the terms of the contract...."

On a plain reading of this section the defendants can rely on it only by proving that they had at all times been ready and willing to carry out their obligations under the unregistered lease. I am fortified in my opinion by a judgment of the Bombay High Court in Bechardas Damodardas Kachia v. Borough Municipality of Ahmadabad (AIR 1941 Born. 346) in which in reference to the provisions of this section, a Division. Bench of the Bombay High Court observed that "...it is primarily intended for the benefit of the transferee and that being so when the section speaks of the performance of his part of willingness to perform his part it must mean in our opinion complete performance or complete willingness so far as he is concerned .... Accordingly, in order to claim the benefit of the equitable remedy conferred by this section the defendants have to prove that they had always been ready and willing to carry out their obligations under the unregistered lease. As I have held that both the deceased and the defendants have committed flagrant breach of their obligations under the unregistered lease it follows that they are not entitled to the benefit of this section.

[Underlining is mine]. vii. PLD 1963 [WP] Lahore 418 [Muhammad Hashim v. Zulfiqar Ali Khan General Manager, West Pakistan, Road Transport Board & others] "`6. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties, according to Halsbury's Laws of England. Third Edition, Volume 23. paragraph 1022. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or by describing it as such. The relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only, if from the whole document it appears that it was intended merely to confer a licence. A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof or the circumstances and conduct of, the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is for the use of property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence even though the agreement may employ words appropriate to a lease. The instance of agreements which have been held in English Courts to create licences include the letting of bookstalls on a railway platform, letting of space for a stall in an exhibition, permission to use a shed for particular purposes, an exclusive right to put pleasure boats on a canal, power to dig for fire-clay, liberty to fasten a coalhalk to a mooring in a river, liberty to lay and stack coal on land, liberty to search and dig for coal and permission to erect or affix advertisements, etc., etc. The relationship of landlord and tenant arises as a rule when one party confers on another the right to the exclusive possession of land, mines or buildings for a time, which is either subiect to a definite limit originally, as in the case of a lease for a term of years, or which, though originally indefinite, can be made subject to a definite limit by either party, as in the case of a tenancy from year to year. As a rule there is incident to it the right to receive from the tenant payment for the use of the property in the shape of rent. The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy but it is a consideration of the first importance. I Underlining is mine].

8. A 'licence' is defined in Section 52 of the Easements Act as follows:-- "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 immovable 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".

What has been conferred upon the petitioner' is a right to do in or upon immovable property of the grantor which he could not lawfully do otherwise. He was permitted to put up a catering stall, which would have been unlawful for him to do without the licence, and it conferred no exclusive interest in the property. A 'lease' is defined in Section 105 of the Transfer of Property Act as a transfer of a right to eniov such property, made for a certain tenure express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be tendered periodically or on specified occasions, to the transfer by the transferee, who accepts the transfer on such terms. Thus while in the case of a licence there is conferred a right to do something on the immovable property of another which he could not otherwise lawfully do, there is in the case of a lease a creation of interest in and a right to enjoy such property. This is the essential distinction between them. The distinction in some cases may be difficult to draw, but there is a distinction as indicated above. [Underlining is mine].

16. A "tenant" means under Section 2 (i) any person by whom or on whose account rent is payable for a building or rented land, and "rented land" means under Section 2 (f) any land let separately for the purpose of being used principally for business or trade. "Landlord" means under Section 2

(c) any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person. These are no doubt words of wide import, but rent is payable by a tenant in relation to transfer of an interest in and a right to enjoy a particular land, which is not the case here. What has been conferred here is a permission to do something on the land, i,e,, to do catering business on the land, which is a licence.

The difference is no doubt subtle but it is not difficult to see it. The words 'landlord' and 'tenant' have to be interpreted in the like manner. I cannot, therefore, hold that the petitioner is a 'tenant' within the meaning of Section 2 (i) of the Ordinance, and has its protection. [Underlining is mine]. viii. PLD 1957 [WP1 Kar 631 [M. A. Faruqi v. Sajid Ali Khan .& another)

"...It has been held there that the main test for deciding whether a person is a licensee of the property or a lessee is that of exclusive possession. If the effect of the agreement is to give exclusive possession to the holder, though subject to certain reservations, then it is a lease. If the agreement is merely for the use of property in a certain way and on certain terms while it remains in the possession and control of the owner, it is a license. To give exclusive possession ..."' ix. 1998 CLC 374 [Royal foreign Currency v. The Civil Aviation Authority & another] "8. the chief consideration to be borne in mind is whether any right of exclusive possession is given to the grantee or not. It was further held that a license is a mere voluntary suspension of the licensor's right to treat certain acts as wrongful and that no person can put up any cabin on the street except with the permission of the Municipal Corporation and the keeping of such cabin is lawful so long as permission continues. In the present case, it is an admitted position that the premises of Quaid-e-Azam International Airport belongs to Civil Aviation Authority and no person or authority can put up any cabin or establish a shop in the said premises without the permission of the Civil Aviation Authority. The difference between a lease and a license was also considered by the Hon'ble Supreme Court of. Pakistan in the case of Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106). In this case, it was held by the Hon'ble Supreme Court that the line of demarcation between a lease and a license is some time very thin. It was held that the right transferred through the lease amounts to right in rem while the right transferred through the license as provided under Section 52 of the Easements Act is only a right in personam whereby the licensor agrees not to interfere with the doing of particular acts on a property which is in possession of a licensee. I am of the view that the principle laid down in the cases of Abdullah Bhai and Ashfaq Hussain is fully attracted in the circumstances of the present case. [Underlining is mine]. x. 2005 CLC 1982 [M/s. Sign Source v. Mls. Road Trip Advertisers & another] "9. The essential features of license are three folds, which are as under:--

(1) A license is not connected with the ownership of any land but creates only a personal right or obligation hence it cannot be assigned.

(2) It is purely permissive right arising only by permission, express or implied, and not by adverse exercise or in any other way, hence it is generally revocable at the will of the grantor.

(3) It only legalizes a certain act, which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done.

11. "Lease" has been defined in Section 105 of Transfer of Property Act, 1882 that reads as under:-- "105. Lease defined. A lease of immovable property is transfer of a right to enjoy such property, made for a certain time, express or implied; or in perpetuity, in consideration of the price paid or promised, or of money, a share of crops, service of any other thing of value, to be rendered, periodically or on specified occasions to the transfer by the transferee who accepts the transfer on such terms."

13. The cardinal distinction between the lease and the license is that in lease, there is a transfer of an interest in the property to, enjoy it, whereas in the case of license there is no transfer of interest, although the licensee may acquire the right to occupy the land. One of the essential conditions of a tenancy is that the tenant should have the right to the exclusive possession of the premises with transfer of an interest to enjoy the property, while license on the other hand, implies the permission to do some act which without the permission it would be unlawful to do.

14. In deciding whether a grant amounts to a lease or a license pure and simple regard must be had to the substance of the agreement and not to what it purports to be. Since exclusive possession coupled with the transfer of a right to enjoy the property, is the test in determining G whether a grant is a license or a lease, there can be no scope for doubt that when the grantee takes under the grant only the right to use the land without exclusive possession, the right granted is a license and not a lease. A reference is invited to case of Behari Lal v. Chhote AIR 1933 All. 911.

Xi. 2000 CLC 1611 fM/s. Javed & Co. v. M/s. Daewoo Pakistan Motorway Services Ltd. through Chief Executive] "Both the Courts below have given concurrent findings of fact against the petitioner that suit for declaration with permanent injunction is not maintainable. In view of the aforesaid circumstances, the petitioner has alternative remedy to file a suit for damages against the respondent-1 defendant. The lease _period was already expired. Therefore, finding of both the Courts below are upheld... It is well-settled that the Court of law should not grant discretionary reliefs in such cases where they are liable to be frustrated by A the authorities concerned by passing a fresh order or where they will lead to injustice or clothe 4 suitor with an undeserving advantage or will inflict unjustified loss on the defendant. It is a necessary incidence in the trial of judicial issues that a suit which is on the face of it incompetent under the law should not be allowed to further encumber legal proceedings ..."

43. Mr. Zeeshan Abdullah, learned counsel for the Defendants on the other hand emphatically argued that upon perusal of License Agreement of 25th August, 1985 [Exh.P-'4/3'] one can easily reached the conclusion that License Agreement is for a period of three ^[03] years in terms of clause-3 thereof. Besides,, under Exh-P-'4/3' Plaintiff herein, was only allowed to use the 'subject plot' as a car parking. In the License Agreement it has further clearly been mentioned that Defendant No, 1, has no intention whatsoever, to create any `relationship' of 'tenant' and 'landlord' between the parties [i,e, Plaintiff and Defendant No, 1 herein]. The relevant part of [Exh-P'4/31 runs as 'WHEREAS the "LICENSOR" has made it clear to the "LICENSEE" that the said "LICENSOR" has not intention, whatsoever, to create any relationship of landlord and tenants between the "LICENSOR" and the "LICENSEE'. According to Mr. Zeeshan Abdullah, learned counsel for the Defendants for to determine nature of relationship, 'intention' of the parties is of paramount consideration. The intention of the parties, as far as, in the case in hand is concerned, is very much clear. The said License Agreement dated 25.8.1985 [Exh.P-'413'] no doubt, per Mr. Zeeshan, creates only a relationship of licensee and licensor between the Plaintiff and Defendant No, 1 respectively.

44. Moreover, from the contents, of the License Agreement dated 25.8.1985 [Exh.P24/31, it is also abundantly clear that no interest as claimed by the Plaintiff in the 'subject plot' has ever been transferred to the Plaintiff. The overall possession and supervision of the "subject plot" always remained with the Defendant No,

1. Upon expiry of the said License Agreement dated 25.8.1985, the Plaintiff, of course, can be deemed and treated as a trespasser over the subject plot". The said Agreement is admittedly for a period of three ^[03] years on agreed payment of license fee in the sum of Rs, 20.160/- per month. Per Mr. Zeeshan Abdullah License Agreement of 25.8.1985, upon its' expiry on 31.09.1988, has never, been renewed. The Plaintiff's plea of alleged relationship of landlord and tenant between Defendant No, 1 and Plaintiff according to Mr. Zeeshan Abdullahy, carries no weight.

Reference to so called License Agreement of 1st October, 1988, is not only misleading, misconceived but also seems tainted with malafide intention. Plaintiff, upon expiry of License Agreement dated 25.8.1985 [Exh.P-'4/3'], is no more a "licensee" to use the parking area. The present, suit as framed and filed by the Plaintiff, per Mr. Zeeshan Abdullah, is not maintainable, as the Plaintiff herein, has no 'cause of action' in his favour to file the same. In support of his contentions Mr. Zeeshan, Abdullah, learned counsel for the Defendants, has placed reliance on i. 2005 CLC 1982 [M/s. Sign Source v. Mls. Road Trip Advertisers & another"J ii. PLD 2002 Kar 502 [Khalid & Company v.

Cantonment Board, Malir through President, Commander Station Headquarter, Malir Cantonment and Cantonment Executive Officer, Karachi], iii. 2009 PLD Kar 58 [Khaista Khan through Legally Constituted Attorney v. KW&SB through Managing Director/Executive Engineer Karachi & 3 others].

The relevant parts therefrom, on which Mr. Zeeshan placed reliance read as follows:-- i. 2005 CLC 1982 Ms. Sign Source v. Mls. Road Trip Advertisers & another)

"8. On perusal of these documents viz. JVA and agreement executed between Defendants Nos,1 and 2 they clearly show that the Defendant No, 2 had given a license and provided the space of his land to the Defendant No, 1 for advertising through hoarding. The heading of the documents is "License for Advertisement". This document clearly shows that the Defendant No, 1 was merely a licensee of the Defendant No,

2. This document cannot be called a lease deed, therefore, the Defendant No, 1 cannot be termed as lessee of the Defendant No,

2. As such, the Defendant No, 2 was simply a licensee; therefore, he cannot transfer more rights than the rights, which he himself had in the property. "License" has been defined under Section 52 of Easements Act, 1882 that reads as under:-- "52. 'License' defined: 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 immovable property of the grantor, something which would, in the absence of such a right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

9. The essential features of license are three folds, which are as under:--

(1) A license is not connected with the ownership of any land but creates only a personal right or obligation hence it cannot be assigned.

(2) It is purely permissive right arising only by permission, C express or implied, and not by adverse exercise or in any other way, hence it is generally revocable at the will of the grantor.

(3) It only legalizes a certain act, which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done.

10. Thus, a license is a personal right granted to a person to do something upon immoveable property of the grantor, and does net amount to the creation of an interest in the property itself. It is purely a permissible right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is therefore, revocable in certain circumstances expressly provided for in the Act itself. The license has no other effect than to confer a privilege, upon the licensee to go upon the land and to do a certain act, which would, in the absence of such license, be unlawful. A reference is invited to a case of Muhammad Khan v. Ranmarayan AIR 1956 Orissa 156. ii. PLD 2002 Kar 502 [Khalid & Company v. Cantonment Board, Malir through President, Commander Station Headquarter, Malir Cantonment and Cantonment Executive Officer, Karachi] "15. The question of licence came under discussion before the Honourable Supreme Court in PLD 1965 SC 83. The facts of the reported case were that the appellant was granted licence whereby he was given a right to use refreshments rooms allotted to them for the purpose of catering refreshment. It was held that such a contract does not amount to easement as defined in Section 4 of the Easements Act, 1882 or interest in the property nor it could be regarded as a licence within the meaning of Section 60 of the Easements Act. It was thus, held that this being a revocable licence, the revocation thereof cannot be prevented by way of injunction. It was observed by the apex Court that in a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of Section 63 of the Easements Act. The Honourable Supreme Court in the said case while dilating upon the provisions of Section 21 of the Specific Relief Act, observed that it is clear that as it is a revocable licence and as adequate relief could be obtained by way of damages, this contract cannot be specifically enforced as it was a contract which in its nature was revocable."

[Underlining is mine]. iii. 2009 PLD Kar 58 [Khaista Khan through Legally Constituted Attorney v. KW&SB through Managing Director/Executive Engineer Karachi & 3 others].

"11. The plaintiff has filed the suit with the prayer that the defendants have no right, interest or title in the hydrant installed by him. The defendants are not . claiming any right, title. or interest in the hydrant but their contention is that without proper license and N.O.C. the plaintiff cannot maintain the hydrant. The plaintiff has not produced the license or the N.O.C. The plaintiff can seek declaration to do a legal and lawful business. The plaintiff cannot seek declaration to do a business which he cannot run without proper license or permission from the authorities concerned.

The plaintiff has taken contradictory pleas. At the one hand he states that no N.O.C. or permission license is required and on the other hand produced the license from Town Administration Gadap.

The plaintiff has not sought any declaration that he is entitled to the renewal of the license issued to him. Since the plaintiff has no license to maintain the hydrant the prayers cannot be granted and no purpose will be served in keeping the suit pending. The prayer clause "B" is not an independent prayer but flows from the main relief, which itself is not maintainable." [Underlining is mine].

45. Mr. Zeeshan Abdullah, learned counsel for the Defendants also contended that time period for a suit of declaration under Section 42 of the Specific Relief Act, 1877 [I of 1877], is governed by Article 120 of Limitation Act, 1908 [IX of 1908], which per Mr. Zeeshan, provides a period of 6 years viz-a-viz. filing of a suit from the date when the right to sue, if any, accrues i,e, when a the legal character or right to any property is denied.

46. Before proceeding further at his juncture, I would like to refer to the definition of license as given in Sections 52 and 54 of the Easement Act, 1882 [V of 1882] which reads as follows:-- a. "52. License defined, 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 immovable 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 interest in the property, the right is called a License." b. "54. Grant may be expressed or implied. Grant of a License may be expressed or implied from the conduct of the grantor and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a License." [Underlining is mine].

47. Like-wise;' a 'license' has also been defined in Halsbury Laws of England 4th Edition re-issued volume 27/1 in the following words: "Creation of License: A license is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them or where exceptional circumstances exist which negative the presumption of the grant of a tenancy. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner's possession and control, the agreement operates as a license, even though the agreement may words appropriate to a lease." [Underlining is mine].

48. Per definition of license [i]. Only a pure and permissive right comes into existence by means of a permission expressed or implied and not by an adverse exercise, [ii]. Generally the license is revocable on the will and wish of the grantor, [iii]. License can only legalize a certain act, such as right to do or continue to do in or upon the immovable property of the grantor which legal right otherwise, in absence of such permission besides becoming unlawful shall not confer an interest in the property itself, [iv]. The grant of license may be expressed or implied from the conduct of the grantor and [v]. Such right under license, to use the premises/property is always without any entitlement to hold possession of the premises, exclusively.

49. The burden of proof viz-a-viz. relationship as being claimed by the Plaintiff in its' capacity as tenant and not a licensee is upon the Plaintiff herein. The Plaintiff herein, however, has miserably failed to discharge such burden. From the materials available on record, it is evident and an established position that the Plaintiff herein was a 'licensee' of Defendant No, 1/Licensor and not .a 'tenant' as claimed by the Plaintiff. The factum can be seemed/established from the following aspects as well:--

(i) that before the execution of the License Agreement dated 25.8.1985 [Exh.P-'4/3'], for a part of a plot, admeasuring 6000 sq. yards, for car parking purpose it was abundantly made clear to the Plaintiff that Defendants had no intention of leasing out the 'subject plot' to the Plaintiff except giving it on leave and license under the License Agreement dated 25.8.1985 fExh.P'4/3']. This intention of parties is quite clear from the said License Arrestment dated 25.8.1985.

(ii) that the Defendants through. a 'Public Notice' dated 19.4.1985, published in Daily DAWN, Karachi had invited tenders for the car parking on leave and license basis. The same 'Public 'Notice' has been produced in evidence as r Exh-P-4/11. The stand of Plaintiff as being a tenant is not supported by any authentic document/plausible evidence.

(iii) that Defendant No, 1, as is evident from available record, was and is in control of the 'subject plot' and this position is' also evident from the letter of the Plaintiff dated 12 August, 1985, fExh.'D/131, wherein, he sought permission from the Defendants to change the design of the gate and this permission was granted by the Defendants through its' letter dated 25th August, 1985, [Exh.'D/13'].

The Plaintiff's said letter of 12 August, 1985 reads as follows:-- "August 12, 1985 Mr. Azad Ali Khan, Manager, Real Estate Division Karachi.

Sub:CAR PARKING AT LACKIE ROAD PLOT Dear Sir, This has reference to your letter dated 4-8-1985 and the undersigned subsequent meeting with you before we take the possession of plot. We have observed from the attached plan of Gates to be fixed that as no specification have been mentioned as to make it clear about the usage of material, we feel that as the space will be already insufficient for developing facility for 360 Cars, instead of having such a gate if we fix a sliding gate this will also save space for few more cards, we suggest that we have sliding gates if approved by you in angle iron frame of "2 size with G.I. sheet of 20 guage fixed on it running on steel railing fixed on top for sliding, for 2 gates of 16 feet wide. One small gate will be fixed with turning on wall side. [Underlining is mine].

Please let us know your decision on this so as to enable us to process its development.

Thank you, Yours faithfully, Sd/- Mohiuddin Khan, House No, 21/107, Peoples Town, S.F. Colony, Karachi."

50. The Defendants herein, as evident from the record, continued to supervise the use of the 'subject plot' in respect of which the Plaintiff is a 'licensee'. The Plaintiff, it is significant to note, at one stage had raised constructed a 'covered shed' and 'affixed a signboard' on a portion of the plot but without seeking prior permission from the Defendants. The Defendants when, came to know about such illegal act of the Plaintiff issued notice to the Plaintiff whereby, Plaintiff was called upon to remove the same immediately otherwise, the Plaintiff has to suffer the legal consequences. This position is quite clear from letter dated 17.12.1987 [Exh. 'Dan The Plaintiff, as evident from Exh.`D/10', on Defendants direction, removed raised "structure" alongwith the 'signboard'. The Plaintiffs letter dated 17.12.1987 [ExhD/101, for convenience purpose is reproduced herein-below:-- "MESSRS MOHIUDDIN KHAN & CO.

PARKINC CONTRACORS Site Office Lucky Road Parking Plot Adjacent to State Life Building No, 1 Chundrigar Road, KARACHI-0237 Ref: SLIC/GEN/CPDate December 17, 1987 The Manager, Real Estate Division, State Life Insurance Corp. of Pakistan, Dr. Ziauddin Ahmed Road, Karachi.

Dear Sir, Please refer to your letter dated 15.12.1987, Further to our letter dated 09.12.1987, as desired by you, we are pleased to inform you that M/s. Mazhar Industries. Ltd., have got the Shed removed as per your instructions. [Underlining is mine].

We are also enclosing herewith a copy of their letter dated 16.12.1987 for your information.

We hope you will appreciate the spirit of cooperation and this matter will now be resolved.

Thanking you and assuring you of our best attention at all times.

Yours faithfully For M/s. MOHIUDDIN KHAN & CO.

Sd/- (Ghulam Hussain Rajan) Manager End: Copy of letter."

51. The intention of parties right from very inception is also evident viz-a-viz. the 'subject plot' while, giving it on a license basis. Under Exh. P-`4/3' i,e, License Agreement of 25.8.1985, the possession; supervision and control of the 'subject plot' have been retained by the Defendants. Moreover, the contents of License Agreement dated 25.8.1985 [Exh.P-'4/31 also belief the Plaintiff in his so-called stand as being 'tenant' of the Defendant No, 1 and not licensee'. In order to reach at a right and just conclusion, as to whether Exh-P-`4/3' is a license or lease, the intention of the parties needs to be ascertained. For this purpose the contents of Exh-P-'4/3' are to be seen and examined minutely.

From perusal License Agreement dated 25.8.1985 [Exh.P-'4/3'], the intention of parties is very much clear. Any oral evidence, if any, contrary to the contents of Exh-P-'413', cannot be given any weight.

On this aspect of the matter reliance can be placed on the case laws: i. 1989 CLC 2070 & ii. PLD 1996 Kar 240. The relevant portions from the aforesaid case-laws referred to and relied upon by Mr. Zeeshan Abdullah, learned counsel for the Defendants respectively read as follows:- i. 1989 CLC 2070 [Pakistan Industrial Credit and Investment Corporation Ltd. v. Habib Enterprises Ltd. and another "13. The principle on which Sections 91 and 92 of the Evidence Act, 1872 (since repealed) and the present corresponding provisions in Articles 102 and 103, Qanun-e-Shahadat, 1984, appear to be founded is that where terms of a contract. grant or any other disposition of property are reduced into writing no oral evidence as to the terms', of the same is admissible ...." [Underlining is mine]. ii. PLD 1996 Kar 210 [Parveen BeEum and another v. Shah Alum and another/ "10. ... Notwithstanding the variation in respect of the sale consideration I am of the view that in view of the legal bar contained in Sections 91 and 92 of the Evidence Act corresponding to Articles 102 and 103 of the Qanun-e-Shahadat, 1984 Defendant No, 1 cannot be allowed to lead evidence in contradiction to the written terms of a document. Crux of the above provisions of law and consistent view of the Courts has been that when the terms of a contract have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to writing, no evidence shall be given in proof of the terms of such contract; grant, or other disposition of the property, or of such matter except the document itself and no evidence of any oral agreement or statement shall be admitted as between the parties to any instrument or their representatives-in-interest for the purpose of contradicting varying, adding to, or subtracting from its forms. In view of this position in law. I am of the considered view that the, defendants are not legally entitled to adduce evidence contrary to the terms of a written document i,e, Agreement to sell and the acknowledgment receipt in respect of the consideration. Refer PLD 1986 Supreme.

Court 519." [Underlining is mine].

52. From the License Agreement dated 25.8.1985 [Exh. P--'4/3'], the following things/ingredients which are very much clear:-- i. Intention of the parties. ii. License fee. iii. Use for car-parking. iv. Raising of no permanent construction. v. Conferring no interest of transfer upon the Plaintiff. vi. Keeping two sets of keys, one for each party. vii. Possession of no exclusive nature but joint possession.

53. The various clauses of License Agreement dated 25.8.1985 [Exh.P-'4/3'], show that under the said License Agreement dated 25.8.1985, the Plaintiff was only given a license. Moreover, the permission granted to the Plaintiff as licensee is also revocable. The Plaintiff, upon expiry of Exh.P- '4/3' has no right to file the instant suit. Further, Plaintiff, under Exh.P-'4/3' is a licensee and not a tenant as claimed by the Plaintiff. In this regard, some of the very relevant terms & conditions of License Agreement dated 25.8.1985 [Exh-P-'4/31 for ready reference are reproduced here-in- below:-- "la. This License agreement shall commence with effect from the 1St day of October, 1985 from which date the Licensee has leave and License to use the said plot of land, which is in the ownership and possession of the "LICENSOR", for a period of 3 years on payment of Licensee fee Rs, 20,160.00 (rupees twenty thousand one hundred sixty only) per month for the privilege of use of the said plot of land for car parking.

1b. The LICENSEE hereby undertake to pay the LICENSOR the said license fee monthly in advance before the 10th day of each month. Default on the part of the LICENSEE to pay License fee in time shall automatically render the License cancelled and the LICENSOR shall take possession of the said plot of land without giving notice to the LICENSEE in this. behalf.

2. The License shall pay a sum of Rs, 60,488/- to the licensor by deposit equal to three months fee for the due performance of the terms and conditions contained herein, which will be refundable to the licensee after adjustments if any within a period of one month reckoned from the date of yielding up the licensor premises by the licensee. No interest shall occur on this deposit.

3. The LICENSEE shall not make any kind of permanent construction including; Masonry work of any kind on the said portion of the land, however, the LICENSEE shall be allowed to make an enclosure of barbed wires on the said plot of land two gates for incoming and outgoing cars a small gate for use of concerned persons and a wooden cabin near the gate for the Watchmen of the parking area.

5. Each lock of the abovesaid gates shall have two keys, one of which shall remain in the possession of LICENSOR.

6. The LICENSEE shall not use the said plot of land for any purpose other than that for which the Licensee is granted, nor shall the LICENSEE use the said plot of land in such a manner so as to cause damages to the said plot of land and/or inconvenience, disturbance, annoyance or nuisance to the quests, tenants, Licensees, Visitors and employees of the LICENSOR or the occupants/Licensees/tenants of the LICENSORS properties. Should the question arise as to whether the LICENSEE is causing such inconvenience, annoyance, disturbance or nuisance etc. the decision of the LICENSOR shall be final and binding on the LICENSEE.

7. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event.

8. The LICENSEE shall not exhibit any advertisement, play card or any part thereof the anybody else in any event.

9. The LICENSEE shall pay in time and within due date to the appropriate person or authority all cess, rates, charges, fees duties and taxes in respect of the said plot of land and the cable so put and, the business conducted by the LICENSEE. The electric power consumed by the LICENSEE, shall be charged by the LICENSOR as per meter reading and shall be payable by the LICENSEE within 5 days of the bill being received by the LICENSEE. The default whereof shall give rise to a cause for cancellation of the License and in such an event the Licensor shall be authorized to disconnect electric power.

11. The Licensee shall indemnify the LICENSOR against all claims or liability in respect of any accidental, personal or other injury or damage which may at any time or times during the continuance of this license happen in the said plot of land or arising out of the same to any guest, visitor, customer, tenant. Licensee, occupant or employee of the LICENSOR or LICENSEE and/or costs incurred for defense in any action or proceedings for contesting, defending or securing such claim.

12. The LICENSES does hereby agree to indemnify the LICENSOR and keep it harmless from all claims, demands, damages, costs, actions, and charges to which the LICENSOR may become subject or that it may have to pay or be held liable therefore, by reason of any injury to person, reputation or property suffered or sustained by any agent, employees guest or visitor of the LICENSOR arising out of any activity or negligence, commission or omission.

13. This License shall be valid, in the first instance, for a period of three years and may be extendable exclusively at the option of the LICENSOR on terms and conditions to be decided by the Licensor. The License agreement hereby executed by the parties, if not renewed as provided for hereinabove, before the expiry of the said period, shall automatically stand cancelled. For renewal, a written request by the LICENSEE made one month before the expiry of the term hereby created or of any subsequent extended term will be required. Upon receiving such request, the Licensor may at his sole discretion, grant him a License for the use of the said portion of plot of land for a further term and on such conditions as may be decided by the Licensor. On the expiry of the period of Licensee as herein provided or of any extended period or on revocation of the same the License shall stand cancelled.

14. On the expiry of the License as herein provided, the LICENSEE shall forthwith remove himself and all property belonging to him from the said plot of land and vacate it by leaving, it in the same good proper condition in which it was at the commencement of the License agreement, unless the License agreement is revoked earlier in accordance with the terms and conditions contained herein by the LICENSOR.

15. The LICENSOR reserves the right to revoke the License agreement at any time by a notice of one month to the LICENSEE at his will or 24 hours notice in the event of any breach of the terms and conditions of the License agreement by the LICENSEE.

The possession of the said plot of land shall rest with the LICNESOR however the LICENSEE will has license and leave to use it for car parking. [Underlining is mine].

54. From the License Agreement dated 25.8.1985 [Exh.P'4/31 the relationship between the parties is very clear. The License Agreement dated 25.8.1985, expressly specifies/shows the intention of parties viz-a-viz. creation of relationship as of licensor and licensee between the Defendant No, 1 and the Plaintiff and not relationship of a landlord and tenant as claimed. The License Agreement dated 25.8.1'985 no doubt, is a License Agreement and not a tenancy/lease agreement. It is also an established position that Plaintiff was allowed only to use the 'subject plot' for car parking. Under I Exh.P-`4/31 no right was conferred upon the Plaintiff to assign sublet or part with the possession of the 'subject plot' to anyone else. In view of this position, no any exclusive interest/right was created in favour of the Plaintiff over the 'subject plot' save and except in terms of License Agreement dated 25.8.1985 [Exh.P-'4/3'.]. The Plaintiff, neither through his pleadings nor his evidence has established that the License Agreement dated 25.8.1985 [Exh.P-`4/31, in any manner, was meant for to create a 'relationship' of 'landlord' or 'tenant' between the parties. The relationship between the parties [i,e, Defendant No, 1 and the Plaintiff], as established from the record, is of a 'Licensor' and `licensee' and not of 'landlord' and 'tenant' as claimed by the Plaintiff. In this regard reliance was placed on the case laws: i. 1990 ALD 412 at Head note (b) [Najmul Hassan Farooqui & 4 others, ii. PLD 2002 Khi 83 [M/s. Noorani Traders through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi.

55. The relevant portion therefrom on which reliance has been placed by Mr. Zeeshan Abdullah, learned counsel for the Defendant reads as follows:-- i. 1990 ALD 412 at Head note (b) [Najmul Hassan Farooqui & 4 others v. M/s. United Carpets Ltd.] "(b) Transfer of Property Act (IV of 1882) ----S.105--Easement Act (V of 1882). S. 52--Words "lease" an "licence"--Distinction between-- [Words and phrases].

The most conspicuous distinction between the lease and licence is that in the case of lease, there is transfer of right to enjoy the immovable property concerned, but no such transfer comes about in the case of licence. However, it is common experience that in case of lease, no words are specifically used to show that there is a transfer of a right to enjoy the demised property but such a transfer is always deducible from the terms of the agreement if studied carefully. It is for the reason of that peculiarity that it is quite often said that the dividing line between lease and licence is rather thin and occasionally blurred.

The line of demarcation between a lease and a licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from Section 105 of the Transfer of Property Act is transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i,e, the right of enjoyment of the property for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand a "licence" as will appear from its definition in Section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right is rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass is so far as it is a right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licensee. This contract may be specifically enforced, but it grants only a right in personam.

The following propositions are to be taken as well as established.

(1) To ascertain whether a document creates licence or lease the substance of the document must be preferred to the form;

(2) the real test is the intention of the parties whether they intended to create a lease or a licence;

(3) if the document creates an interest in property, it is a lease but if it only permits another to make use the property, of which the legal possession continues with the owner, it is licence; and

(4) if under the document a party gets exclusive possession of the property prima facie, he is considered to be a tenant, but circumstances may be established which negative the intention to create lease.: [Underlining is mine].

PLD 20102 Khi 83 fM/s. Noorani Traders through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi It would be seen that the controversy between the parties is that on the one hand, the appellant has disputed the cancellation of the Licence Agreement being an alleged arbitrary, mala fide and discriminatory exercise whereas on the other hand, the respondent has denied this claiming the right to cancel the Agreement in terms of powers derived from the Agreement itself as well as being in the public interest. The legal position regarding the rights and obligations of a licensee is well-settled inasmuch as a licence does not contemplate a transfer of interest in property and it is purely a permissible right which is at the behest of the grantor. This position is in contradistinction to a lease whereby there is a transfer of interest and an exclusive right to possession is granted.

This would therefore mean that a licensee holds the licensed property purely at the Behest of the grantor which can at any stage be revoked in which event the licensee's only namely would be a suit for damages, as specific performance or other equitable relief would not be permissible in the circumstances of the case. The above formulation of law finds full support in the Easements Act itself Section 60 of which allows the revocation of a licensee unless it is coupled with a transfer of property of the licensee has executed works of a permanent character in the licensed premises.

Further Sections 63 and 64 of the said Act provides for the consequences of such revocation viz. reasonable time to the licensee for vacation of the property and his right to recover compensation for damages etc. as result of such eviction In these circumstances, therefore, a suit for specific performance would not be maintainable as laid down by the Honourable Supreme Court long ago in M.A. Nasir v. Chairman, Pakistan Eastern, Railways and endorsed by the superior Courts from time to time viz., in Royal Foreign Currency Exchange v. Civil Aviation Authority, Zaidi's Enterprises v. Civil Aviation Authority (supra) etc. [Underlining is mine].

56. From the record it has not been established that the Plaintiff is a 'tenant' in terms of SRPO, 1979 and/or that the License Agreement dated 25.8.1985 [Exh.P-'4/31, is a lease/tenancy agreement.

Moreover, the Plaintiff in his 'cross-examination' recorded in Suit No, 583 of 1989 has also admitted that the "the Agreement was read over to me and I signed the same after I understood the same".

As admitted, the contents/phraseology of Exh-P-'4/3' were properly understood and only thereafter, the Plaintiff put his signature on ExhP-'4/3'. Further, under the said License Agreement dated 25.8.1985, it has also been expressly agreed that Plaintiff does not wish to create any 'relationship' of 'tenant' and 'landlord' but instead Plaintiff had agreed to create relationship of 'licensee and 'Licensor'. The Plaintiff, it appears, now with a malafide intention and perhaps, in order to build a case of 'tenant' and 'landlord' in his letter dated 25.8.1988 has purposely used the term RENT and that too when the License Agreement dated 25.8.1985 has already expired. The Defendant's letter dated 15.1.1989 [Exh-'D/'7'] however, clarifies the actual and true position. Exh.'D/7' reads as follows:-- "January 15, 1989 REAL ESTATE Mr. Mohiuddin Khan Licencee Lackie Road Parking Plot.

Adjacent to State Life Building No, 1 I. I. Chundrigar Road Karachi Sub:RENEWAL OF LICENCE AGREEMENT IN RESPECT OF LACKE ROAD PLOT FOR CAR PARKING Dear Sir, Please refer to your letter dated 25-8-1988 on the subject matter and have carefully noted the contents.

We hereby inform you that the above plot was given to you under the Licence Agreement dated 25-8-1985 and you had paid licence fee during the license period and not rent as mentioned in your letter under reply.

Since the said Licence Agreement dated 25-8-1985 stands expired on 30.9-1988 and you are liable to remove yourself and all the property belonging to you from the said plot of land and vacate it by leaving it in the same and in the proper condition in which it was at the commencement of Licence Agreement without loss of any time. [Underlining is mine].

Thanking you Yours faithfully. (ASIM S.M. KHAN)

Deputy General Manager"

57. As far as, the Plaintiff's reliance on three ^[03] receipts i,e, Exh.P-`4/4' to Exh-P.`4/6' are concerned, the use of word RENT therein, per Mr.Zeeshan Abdullah, was nothing but an error of the issuing clerk of Defendants. In all other receipts, it was contended that word 'license fee' has been used. Plaintiff, nevertheless, as per available record, has badly failed to produce any document and/or any cogent evidence in support of his stand that the 'relationship' between the Defendant No, 1 and Plaintiff is that of a 'landlord' and tenant' and not that of licensor' and 'licensee'.

58. The term 'tenant' has been defined in Section 2(i) of SRPO, 1979 [XVII of 1979], in the follows words:

(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:--

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; and

59. Like-wise, a Tenancy Agreement has been defined under Section 5 of the Sindh Rented Premises Ordinance, 1979 [XVII of 1979], in the following words:-- "Section 5(1) The Agreement by which landlord lets out any premises to tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signed with the seal of the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.

(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under sub-section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant: Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coining into force of this Agreement."

60. From the provisions of the Sindh Rented Premises Ordinance, 1979 [XVII of 1979], it comes clear that if, an agreement is compulsorily registerable under any law for the time being in force then, a certified copy of the registered deed and where the agreement is not so registerable, then the original deed duly attested under sub-section (i) shall be produced and accepted in proof of the relationship of landlord and tenant. In this case, Plaintiff herein rather, has expressly admitted, the execution of the License Agreement dated 25.8.1985 [Exh.P-`4/31. Moreover, the said License Agreement dated" 25.8.1985 is for three ^[03] years, and has not been registered as required under Section 17 of the Registration Act, 1908. Under such circumstances, the same cannot be termed as "Tenancy Agreement". ' The same, in view of this position, as well, is a License Agreement, and not a Tenancy Agreement as claimed by the Plaintiff. The 'License Agreement' dated 25.8,1985 [Exh.P- '4/3'], in terms of clause `1-a' is for three years but the same, it is admitted position, has not been registered as required, under Section 17 of the Registration Act, 1908. [XVI of 1908]

61. Being relevant Sections 17 (1) (d) of the Registration Act, 1908 [XVI of 1908] are reproduced herein-below:-- "17(1) Documents of which registration is compulsory: The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after a date on which Act No, XVI of 1964 or the Registration Act, 1866, or the Registration Act.

1871, or the Registration Act, 1877, or this Act came of comes into force, namely:7- (a)

(b)

(c)

(d) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e)

62. The License Agreement dated 25.8.1985 [Exh.P-'4/3'], in no manner can be considered a Lease Agreement, as per its' definition. given under Section 105 of the Transfer of Property Act. Under Section 105, a lease of immovable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Per definition of Lessor, lessee, premium and rent the 'transferor' is called the lessor', the 'transferee' is called the 'lessee', the price is called the premium. and the money, service or other thing to be so rendered is called 'the rent'."

63. It is significant to note, that rights under lease are right in rem and the same are assignable and transferable. In the instant case however, the Plaintiff, did not acquire any rights of transferable nature. This position, is quite evident from the contents of the License Agreement dated 25.8.1985 [Exh.P-'4/31 under which only a permission of car parking was granted to the Plaintiff viz-a-viz. the `subject plot'. For this reason as well the said License Agreement dated 25.8.1985 [Exh.P-'4/3'] cannot be termed and/or treated as a lease Agreement. Plaintiff, as per record available, is a 'licensee' of Defendant No, 1/Licensor in respect of the 'subject plot'. The relationship between the Defendants and the Plaintiff as is evidently is that of 'Licensor' and 'licensee' and not that of a landlord and tenant. The Plaintiff's occupation thus after expiry of the License Agreement dated 25.8.1985 [Exh.P-'4/3'] is not only illegal but is of trespasser in respect of the 'subject plot'.

64. The Plaintiffs counsels, however, in contra contended that at the time of execution of License Agreement dated 25.8.1985 rExhP-4/31, the intention of the Plaintiff was in fact to create a relationship of tenant and landlord and not that of licensee and licensor. In this regard, reliance has been placed on the evidence of the State Life's witness viz. Hafiz Arshad Shaikh s/o Shaikh Abdul Razzak [DW-1/1], who, per Plaintiff counsel, in his 'cross-examination' has admitted the factum that possession of the 'subject plot' as was handed over to the Plaintiff and the subject plot' is in possession and control of the Plaintiff. The relevant part of 'cross-examination' of 'DW-1' reads as follows:-- "It is correct that the suit property is under control of the Plaintiff. It. is correct to suggest that suit property is in exclusive control and possession of the Plaintiff. There is a room on the suit property but I do not know as to the purpose/use of the room...."

Nevertheless, it is also worth to mention that the 'DW-1/1' in his 'cross examination' has further stated as follows:-- "It is incorrect that relationship between the Plaintiff and Defendants is of landlord and tenant. Vol. Says that it is a license Agreement between the parties..."

65. As far as, the aforesaid contention of Mr. Moin Qamar is concerned, in my humble opinion, such piece of evidence is of no help to the Plaintiff interalia for the reason that License Agreement dated 25.8.1985 [Exh.P-'4/31, was executed on 25.8.1985 for a period of three ^[03] years. Upon expiry of the License Agreement dated 25.8.1985 [Exh.P-'4/3'], it is admitted position that no any other fresh License Agreement was ever executed as provided under 'clause 13' of the License Agreement. In view of this positions the Plaintiffs is occupation of 'subject plot' from the date of expiry onward i,e, 1st October, 1988 is nothing but a clear cut act of `trespasser' Occupiers'. The Plaintiff's occupation of the 'subject plot' and that too after expiry of License. Agreement dated 25.8.1985 [`Exh-P-4/31, is not only illegal but also un-authorized. The contents of the License Agreement dated 25.8.1985 [Exh.P-'4/3'] also belief the Plaintiff in his so-called stand of relationship as of 'tenant' and 'landlord' between the Plaintiff and Defendant No,

1. Apart from above. [Exh.P-`4/261, also belies the Plaintiffs contention regarding delivery of exclusive possession. Per Exh.P-`4/26' the 'subject plot' is in joint possession of the Plaintiff and Defendants.

66. Under the aforesaid circumstances, no any sanctity can be attached to or given to and/or 'oral statement of witness'. Being relevant, the following un-numbered paragraphs from License Agreement dated 25.8.1985 [Exh.P-'4/31 are reproduced here-in-below: Whereas the "Licensor" has made it clear to the Licensee that the "licensor" has not intention, whatsoever, to create any relationship of landlord and tenant between the "Licensor" and the "Licensee".

And whereas the "Licensor" has also expressly stated and does hereby expressly state that the "Licensee" in his turn has no intention, whatsoever to became a tenant, of the said plot of land in the "Licensors" property. [Underlining is mine].

Moreover, on the last page of the said License Agreement [`Exh-P-4/31 it has further been provided that: The possession of the said plot of land shall rest with the "Licensor" however the "Licensee" will has license and leave to use it for car parking. [Underlining is mine].

67. Further, in terms of Articles 102 and 103 of Qanoon-e-Shahadat Order,. 1984, if, there is a 'conflict' between the 'Oral Evidence' and Documentary Evidence then Documentary Evidence available on record, is to prevail over the oral evidence. In the case in hand, it is significant to note, the License Agreement [Exh.P-'4/3'] duly signed between the parties is not only an admitted document but the same has also been exhibited without any objections whatsoever. On the aforesaid aspects of the matter, reliance placed on the case-laws: i. 2014 SCMR 1217, ii. 2010 CLC 246, iii. 2013 MLD 1305 & iv.

PLD 1986 SC 519.

68. The relevant portions therefrom referred to and relied upon by Mr. Zeeshan Abdullah, learned counsel for the Defendants read as follows: i. 2014 SCMR 1217 [Elahi Bakhsh through Legal Heirs and others v. Muhammad Iqbal and another] "7. ... It was accordingly reduced into writing and registered at the instance of the parties mentioned above. The respondent, however, averred that it was a sale and not exchange. The burden, therefore, law on him to prove, that it was sale. In his effort to prove his stance, he produced Saeed Ahmed and Mst. Sughran Bibi who were examined as P.W.1 and P.W.2. Both the P.Ws. stated in their evidence recorded in the Court that the transaction entered into between them and the appellants was one of sale and not that of an exchange. This statement, so to say, varies the terms of the deed and substantially so. The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qariun-e-Shahadat Order 10 of . 1984 excludes oral statement as between the parties to any such instrument or their representatives. The rationale behind this Article is that inferior evidence is excluded in the presence of superior evidence; that an agreement finding expression in writing is an out come of deliberate and well thought out settlement; that a party acknowledging a fact in writing is precluded to dispute it and that an agreement reduced into writing is immune from mischief, failure and lapse of memory...." [Underlining is mine]. ii. 2010 CLC 246 [Karam Din through L.Rs, and others v. Muhammad Idrees] "12.During cross-examination he was confronted with the written statement. He denied having signed the written statement. However, he admitted his signatures on the front and back side of the agreement Exh.P.1. He also admitted that the I.D. Card number shown thereon related to him.

Then he tried to take a shift saying that the stamp paper was got written through fraud. He however failed to state any particular of the so-called fraud. It is evident that he had admitted the execution of the agreement Exh. P.I dated 26-3-1996. The agreement Exh.P.1 was fully covered under. Article 102 of Qanun-e-Shahadat Order, 1984 and any oral evidence against its terms, would stand excluded from consideration vide Article 103 of the Order (ibid). [Underlining is mine]. iii. 2013 MLD 1305 [Shakeel v. H. Syed Masroor Ahmed] "8. Both the Courts below have considered, discussed and relied upon the oral evidence of appellant without examining the documents i,e, Registered Power of Attorney executed by H. Syed Masroor . Ahmed, Respondent No, 1 in favour of Saleemuddin and the registered sale deed executed by Saleemuddin as Attorney of Respondent No, 1 in favour of appellant Shakeel, the said documents were produced by the appellant before the trial Court in his evidence as Exhibit D/1 and D/2. The General Power of Attorney as per the endorsement of Sub-Registrar was registered at Serial No, 865 dated ,20-10-2004, the photograph of executant H. Syed Masroor Ahmed is affixed on the General Power of Attorney, whereas the Sale Deed in respect of suit property, as per the endorsement of Sub-Registrar was executed under Register No, 417 dated 25.1.2005 about 3 months after the execution of General Power of Attorney, as such both the Courts below have given preference to the oral evident over the documentary evidence which amounts to mis-carriage of justice and violation of Articles 102 and 103 of Qanun-e-Shahadat 1984 which relates to exclusion of oral evidence when the terms have been reduced into writing to form a document, oral evidence led to contradict the contents of a document would be inadmissible. Reliance can be placed on a matter reported as (Ali Muhammad Ghulam Haider) 2001 CLC 1440....' [Underlining is mine]. iv. PLD 1986 SC 519 [Muhammad Shaft and others v. Allah Dad Khan] "...The evidence of the respondent and of another person was admitted by the Trial Court for the purpose of proving the real intention of the parties and such evidence was relied on to some extent by the Courts below. In regard to the admissibility of this evidence their Lordships held that by reason of Section 92 of the Evidence Act, no oral evidence of intention was admissible for the purpose of constrain the deeds or ascertaining the intention of the parties, and the case had to be decided on a consideration of the contents of the documents themselves with such-extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts...." [Underlining is mine].

69. As far as, contention of Mr. Moin Qamar, learned counsel for the Plaintiff viz-a-viz. deposit of the rent in Misc. Rent Case is concerned, the same seems incorrect in view of order dated 19.10.1989 passed in Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], filed by Defendants herein. Defendant No, 1 [i,e, Plaintiff herein], in the said Suit 583 of 1989, was directed to deposit the 'license fee' with the Nazir of the Court and seemingly since then, the same is being deposited. [Order dated 19.10.1989 has already been reproduced hereinabove]. Per Plaintiff's counsel since. M/s. State Life Insurance Corporation of Pakistan, has failed to prove its claim regarding opening and closing the gate of parking of the 'subject plot' through their security guards, as such, the Plaintiff is a 'tenant' and not a `licensee' in respect of . the 'subject plot'. In contra Mr. Zeeshan Abdullah, learned counsel for the Defendants while, referred Articles 117 and 119 of Qanoon-e-Shahadat [Order 10 of 1984] forcefully contended that under said Articles, 'burden of proof' lies on the person, who asserts existence of a particular fact, such as, in the case in hand, is the so-called 'Relationship' of 'tenant' and 'landlord' between, the parties is Concerned. From the record available, the Plaintiff, herein, has failed to discharge the burden of proof satisfactorily. On this score as well, the Plaintiffs case fails. '

70. Moreover, under the License Agreement dated 25.8.1985. [Exh.P-'4/3'] Defendants Never divested themselves of possession of the 'subject plot' exclusively. Rather, the Plaintiff under Exh-P-`4/3', was given permission only to use the 'subject plot' and without creating any 3rd party interest in the 'subject plot'. As far as the closing and opening of the main gate of the 'subject plot' is concerned no any question was put to DW-1' during his 'cross examination'. Moreover, the contents of the License Agreement dated 25.8.1985 [Exh.P-`4/31. also belie the Plaintiff in his such stand/version.

Besides, in the pleadings, no such plea was taken and/or otherwise, established through evidence.

Needless to say one cannot be allowed to prove and/or build a case beyond the scope of pleadings. On this aspect of the matter, reliance can be placed on the case laws: 2015 SCMR 21 [Muhammad Iqbal v. Mehboob Alan].

71. The relevant portion therefrom reads as follows:-- 2015 SCMR 21 [Muhammad lqbal v. Mehboob Alam7 "3. ... it is also settled that no litigant can be allowed to build and prove his case beyond the scope of his pleadings. Therefore, only plea that remained to be determined; as set out by the appellant in his defence (written statement) was if the time was the essence of the contract or not..."

72. Manifestly, as per 'clause 5' of Exh.P-'4/3', each lock of gates referred to therein, shall have two keys, one in possession of, the licensor and other in possession of the licensee. [Defendant No, 1 and Plaintiff herein]. This clause 5 also belies the Plaintiff/licensee in its' alleged stand. Mr. Moin Qamar further argued that the word 'vacate' it as used in clause 14' of the Agreement [Exh. P-'4/3'], if read, in juxta-position of handing over letter [Exh.P-'4/26'] then, it becomes clear that the Plaintiff is/was in possession of the 'subject plot' and relationship between the parties [i,e, Plaintiff and Defendants], is that of the `tenant' and not of 'licensee'. This argument of the learned counsel for the Plaintiff is also mis-conceived. The distinction between a 'lease' and license', no doubt, is very thin but this line of distinction can only be established by mean of a recognized test i,e, in case of `lease' there must be an 'exclusive possession' coupled with interest, otherwise, the possession, if any shall not be deemed as an exclusive. Further mere occupation of an immovable property and its' use in particular manner, of course, creates a "license" and not a "lease".

73. From perusal of Exh.P-'4/26 inter alia it is quite clear that the possession of the 'subject plot' is to remain with the officer of M/s. State Life Insurance Corporation of Pakistan [Plaintiff]. So far, the word 'vacate it' used in the License Agreement dated 25.8.1985 [Exh.P-'4/3'] is concerned, the same, cannot be made basis for to show that the Plaintiff is in exclusive possession of the 'subject plot' or otherwise, the Plaintiff is a tenant of Defendant No,

1. Contrary to the stand of Plaintiff Exh.P-'4/3' [i,e, License Agreement dated 25.8.1985], not only belies the Plaintiff but also it declares that possession of the `subject plot' is with the licensor [Defendant No, 1] and 'Licensee' [Plaintiff herein], however, will have leave and license to use it for car parking. The claim of the Plaintiff under the above circumstances, besides false is without any foundation. The word vacate has been defined in Black's Law dictionary in Ninth Edition at Page 1988. Per definition of the word 'vacate', the act of vacation is meant only for two things/purposes i.e:--

(a) Occupancy; and

(b) Possession ; Like-wise, the word 'vacate' has been defined in Words & Phrases, 4th Edition. Lexis Nexis at page 1259 as under:-- "VACATE New Zealand [Under a contract for the sale of land, the vendor undertook to transfer a certain Maori leasehold if he decided to vacate the property.]; 'The word "vacate" will connote, in accordance with the context, either a withdrawal which results in emptiness or vacancy or a mere withdrawal or a departure where no state of vacancy is produced. In the present context, I think the latter is the appropriate meaning. McLean v. Grace [1953] NZLR 566 at 569. per F B Adams J."'

[Underlining is mine].

74. Keeping in view, definition of the word 'vacate' and reading it in juxta-position of the 'terms' & 'conditions' of License Agreement dated 25.8.1985 [Exh.P-'4/3]', particularly with 'clause 5 thereof then it becomes quite clear that word 'vacate' has been used for occupancy purpose only.

Likewise, the use of word 'rent' in two rent receipts i,e, [Exh-P-'4/4'] & [Exh-P-'4/51 also in no manner, can change the mutually agreed 'terms' & 'conditions' of License Agreement dated 25.8.1985 [Exh.P24/31. The Plaintiff, it is significant to note, has never acquired any right in the 'subject plot' in its capacity as 'licensee' except to the extent of use thereof. Moreover, the license period, as per Exh.P-`4/3' has already expired. On expiry of the License Agreement dated 25.8.1985 [Exh.'P-'4/3'], the Plaintiff has even lost its' right to use the 'subject plot' as 'licensee'. For the reasons given hereinabove, the prayers sought by the Plaintiff cannot be granted or otherwise enforced under law.

75. Further, oral evidence viz-a-viz. intention of parties cannot be given weight in presence of written document i,e, Exh-P-'4/3' herein. Moreover, according to Section 107 of Transfer of Property Act, 1882 [IV of 1882], a lease for a period of more than 01 year can only be created by means of a registered document/instrument. In the case in hand, it is worth to mention. License Agreement dated 25.8.1985 [Exh.P-'4/3']. is for three ^[03] years but it is not a registered document. In this view of the matter as well Exh-P-'4/3', the same is a License Agreement and not a Lease Agreement as being claimed by Plaintiff. Plaintiff, in view of the foregoing circumstances, is a 'licensee' and not a 'tenant', as according to Section 17 of the Registration Act, 1908 [XVI of 1908], a document for a term exceeding one year lease is compulsorily registerable.

76. For all the above discussion. I have come to the conclusion that the relationship of Plaintiff and Defendant No, 1 is not of 'tenant' and 'landlord', rather it is of 'licensee' and 'Licensor'. ISSUE NO. 4 is answered accordingly.

ISSUE NO. 5:--

77. With regard to Issue No, 5, which is to the effect and extent as to what relief, if any, the Plaintiff is entitled to. I am of the considered opinion that the Plaintiff is not entitled for any relief as claimed in the plaint or otherwise. ISSUE NO. 5 is thus answered in NEGATIVE'.

ISSUE NO. 6:--

78. As far as. Issue No, 6 is concerned which is to the effect as to what should the decree be. For and in sequel of the above discussion. I am of the considered view that Exh-P-`413', is not a contract of lease but it is a license agreement and Plaintiff is a `licensee' and not a 'tenant'. Moreover, the License Agreement dated 25.8.1985 [Exh.P-4/31, has already expired, therefore, Plaintiff has/had no right whatsoever to file the instant suit for the reliefs sought in the plaint. Under such circumstances, Plaintiff's suit stands dismissed, however, with no order as to costs.

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