The dispute relates to Shop No. 5 situated in lqbal Bazzar outside Ghalla Mandi, Sargodha. The site under the said shop was allotted to appellant * over which according to him he had raised construction. The site admittedly belonged to the Provincial Government whereas the allotment was made by the Municipal Committee, Sargodha. On 28-7-1972 respondent No. 2 made an application to the Municipal Committee that he being in possession of the said shop having been let out to him by the appellant as sub-leasee the same be allotted to him. An order for allotment of the said shop was made on 5-8-1972 in his favour against which an appeal was filed by the appellant before the Commissioner, Sargodha who accepted the same through order dated 13-3- 1973 (Exh. P.5) and the case was remanded for fresh disposal by the Administrator, Municipal Committee, Sarogdha. After the remand the Administrator through order dated 9-6-1973 (Exh. P.7) restored the allotment of the shop to the appellant in his name. However, an appeal was filed by respondent No. 2 before the Commissioner, Sargodha Division, Sargodha against this order which was accepted through order dated 24-7-1973 (Exh. P./Dl). Against this order the appellant filed suit for declaration that he was the allottee of the plot and respondent be restrained from denying his status as such, from which this appeal has arisen.
2. The suit was contested by the respondents. It was specifically averred on behalf of the Municipal Committee as also respondent No. 2 in the written statements that the appellant was not the lessee and that he was estopped from filing the suit. The trial Court after framing issues and recording evidence held that the appellant failed to prove that he was lessee and he could not be ousted from the premises as 'licensee. It was also held that the suit was not maintainable in the present form as the appellant being out of possession should have also prayed for further relief of possession. As regards estoppel the view taken by the trial Court was that there was no evidence of any representation having been made by the appellant to the respondents on account of which they had to change their positions, therefore, the principle of estoppel was not applicable.
3. The suit was dismissed through judgment dated 23-2-1977 which was upheld in appeal by the lower appellate Court through judgment dated 23-1-1979 by which appeal filed by the appellant was dismissed.
4. Learned counsel for the appellant argued that the two Courts below have wrongly held that the appellant was not the lessee and further that the suit was not maintainable in the present form as the relief of possession could be given by the Court itself by calling upon the appellant to make deficiency in the court-fees. He prayed that this Court on acceptance of this appeal may allow the appellant to pay the court-fee and decree of possession may be granted to him.
5. The respondents particularly the Municipal Committee took a ground that the appellant was not a lessee but was merely a licensee therefore the licence could be terminated as such no right was vested in him.
6. Learned counsel for the appellant merely relied upon the observations made in the orders passed by the Administrator, Municipal Committee and the Commissioner in which it was observed that the site was allotted to the appellant to contend that it was always treated to be on lease with the appellant. I am afraid no such inference can be drawn from the said expression. A specific issue was framed by the Court and the onus was on the appellant to prove that he was a lessee as such his lease could not be terminated. He having failed to prove the same though he could summon the record of the Municipal Committee to establish this fact, therefore, the findings of the two Courts below do not suffer from any illegality.
6-A. Though the point of estoppel has been decided in favour of the appellant but on examining the record I find that the appellant was given Shop No. 3 in lieu of the shop in dispute as is evident from the order passed on 18-8-1972 which was produced in evidence as Exh.D.2, on the clear understanding that he would abandon this shop. About this aspect he was questioned in the cross-examination but denied that he had got the said Shop No. 3 allotted in his name. The' reply was apparently false as the appellant who is present today in the Court admitted when questioned that he got the said Shop No. 3 allotted in lieu of which subsequently he was allotted another Shop No. 48. The appellant was estopped from claiming any right in Shop No. 5 as order dated 18-8-1972 (Exh.D.2) was passed on this understanding given by him that he had abandoned his claim as regards Shop No. 5 in dispute.
7. The form of suit was also not proper as the appellant should have prayed further relief to recover possession as admittedly he was not in possession of the shop when the suit was filed. Learned counsel for the appellant firstly argued that since according to the appellant the shop was in possession of Khurshid respondent No. 3 who was his agent therefore it was not necessary to claim relief of possession. I am afraid, the argument has no force because Abdul Hamid respondent No. 2 according to the order passed by the Municipal Committee had been allotted the shop and he was claiming to g be in possession of the same in his own rights and denied the status of Khurshid as agent of the appellant. In these circumstances, relief of possession was available and should have been claimed.
8. Though according to the law laid down by the superior Courts such a relief could be granted to the plaintiff at the stage of appeal also but in this case due to other circumstances the same cannot be granted to the appellant as it would have the effect of adversely affecting the valuable rights created in favour of Abdul Hamid. Since the site belonged the Provincial Government which on the basis of possession of Abdul Hamid was transferred to him by Provincial Government on ownership basis. The grant of relief of possession at this stage to the appellant would amount to interfere with the rights created in favour of Abdul Hamid from a third party, therefore, the prayer cannot be allowed. Had it been a case between plaintiff and defendant whom the Court could exercise discretion for grant of relief of possession if rights had not accrued to a party from a third party during the pendency of the suit.
9. The findings recorded by both the Courts below against the appellant do not suffer from any illegality, therefore, the same are not liable to be interfered with. The appeal fails which is hereby dismissed with no order as to costs.