1. ' These two civil revision applications under section 115 of C.P.C. Arise out of a common judgment passed in Civil Appeals Nos.172 and 173 of 1989 whereby the judgment and decree passed in Suit Nos.1114 of 1970 and 728 of 1973 were maintained and appeals filed by the applicants were dismissed hence the present revision applications.
2. ' The brief facts of the case are that Suit No,1114 of 1970 was filed by the predecessor-in-interest Ghulam Rasool of the present applicants for declaration and injunction that the allotment made in favour of Respondent No,2 in respect of the land in dispute by respondent No,1 was illegal, without jurisdiction and not binding upon the applicants' predecessor-in-interest and further that the respondents be restrained from disturbing their peaceful possession over the plot in dispute on the ground that they were in possession of the same since long.
3. ' The respondent No,2 filed Suit No,728 of 1974 for possession of the suit plot and mense profits on the ground that the said plot was allotted to him by K.M.C. As per resolution No,370 dated 12-5-1967 for which he had paid occupancy value at Rs,150 per square yard and the K.M.C. Executed a regular agreement of licence in From A/1, dated 10-12-1968 in his favour and permitting him to enter upon the land in dispute and construct a building thereon whereafter the K.M.C. Respondent No,1 would grant 99 years lease of the suit plot. In para.7 of the said plaint the respondent No,2 stated that in about January, 1970 when he wanted to enclose the suit plot with a boundary wall went there when applicant/defendant in the said suit interfered and disturbed his possession claiming right of entrance of his Gate through the suit land. In para.9 of the said plaint the respondent No,2 stated that in May, 1971 the applicants' predecessor-in-interest occupied the suit plot and on 27-5-1970, he filed Suit No,1114 of 1970 in the Court of Civil Judge First Class, Karachi for declaration and injunction. Both suits were consolidated, when Suit No,1114 of 1970 and leading thereafter consolidated issues were settled and evidence of parties was recorded and after hearing the counsel for the parties, the Court of learned IInd Senior Civil Judge, Karachi East, dismissed the Suit No,1114 of 1970 while decreed the Suit No,728 of 1974 filed by respondent No,2. Thereafter the predecessor-in-interest of the applicants preferred Appeals Nos.172 and 173 of 1989 before the District Court, Karachi East, which were transferred, heard and disposed of by IIIrd Additional District Judge, Karachi East, whereby he dismissed both the appeals and maintained the judgments and decrees passed by learned trial Court.
4. ' The learned counsel for the applicants main legal plea raised is that as per Exh. 7 Form A/1 the respondent No,2 Anwar Baig being a licensee, would acquire the rights of lease on the completion of building in accordance with the terms and conditions of Exh.7 licence agreement of the plot in dispute for the period of 99 years and till such time Mr. Anwar Baig the respondent No,2 would remain licensee of K.M.C. Respondent No,1 and respondent No,2 would have no right or interest in the plot, therefore being a licensee, the Suit No,728 of 1974 for possession filed by the respondent No,2 Mr. Anwar Baig was not maintainable. In support of his contention he has placed reliance upon (i) Manbahal Rai and others v. Ram Ghulam Pandey (AIR 1927 All. 633), (ii) Ghulam Hussain v.
5. Fateh Muhammad and 9 others (1987 SCM R 1115) and (iii) Muhammad Sharif v. Mehbub Alam and 4 others (1992 M LD 37). So far the reliance prayed for in Suit No,1114 of 1970 the learned counsel for the applicants submitted that because the applicants were in possession of the disputed plot since last many years, therefore, the lease of the same should have been granted to the predecessor-in-interest of the applicants and not to the respondent No,2 who was not in possession of the same.
6. ' Learned counsel for respondent No,2 has argued that as per Exh.7 Form All the respondent was granted the disputed plot by K.M.C. And he was authorised to enter upon the land and construct the building thereon for which he had paid the occupancy value and, in fact, Exh.7 Form All was a lease document and treating the same as license would be a misnomer hence the respondent was competent and entitled under the law to sue the applicants' predecessor-in-interest for possession who had illegally encroached upon his land, therefore, the Suit No,728 of 1974 was maintainable. He has placed reliance upon (i) Abdullah Bhai and others v. Din (PLD 1964 SC 106),
(ii) Haji Noor Muhammad and others v. Karachi Development Authority and 2 others (PLD 1975 Kar.
7. 373) and (iii) Nasira Sultana v. Habib Bank Ltd. And others (PLD 1975 Kar. 608) in support of his contention.
8. ' Admittedly, so far the Suit No,728 of 1974 is concerned the respondent No,2/plaintiff in the said suit, has filed suit for possession on the basis of Exh.7 Form A/1. On perusal of the said document Exh.7, it would appear that the respondent No,2/plaintiff in the suit has been named as a licensee while the K.M.C. Respondent No,1 has been named as licensor in the said document. Throughout Exh.7 Form All the respondent No,2 has been termed as licensee whereas respondent No,1 has been termed as licensor. At page 2 of Exh.7 Form A/1 it runs:-- " for the purpose of constructing building thereon in accordance with and subject to the said terms and conditions referred to above, and appended herewith which shall be deemed to form part of and be incorporated in this agreement and it is hereby agreed that on the competition of the building in accordance with the said terms and conditions and on the licensee complying with the said rules the licensee shall be entitled to a lease of the said plot for a term of 99 years and it is hereby further agreed that till such lease has been granted by the licensors the licensee shall not have any right or interest in the plot except that of a bare licensee."
9. From the above it would appear that the respondent No,2/plaintiff in the said suit was not conferred any right or interest in the plot in question except that of a bare licensee who was authorised to enter upon the land and to raise building in accordance with the approved plan and the right to lease was to be conferred only on fulfilment of conditions. It is admitted position that so far lease has not been executed in favour of the respondent No,2/plaintiff in respect of suit plot. In Manbahal Rai's (AIR 1927 Allahabad 633) learned Judge in Chambers has observed that "a licence passes no interest in immovable property to the licensee, but only makes an action lawful which, without it, would have been unlawful. That being so, by the licence granted to the licensee acquire no interest in the site, the subject-matter of the dispute. They were authorised by the licence simply to build over the site in dispute. The licensee, not having any interest in the site, could not maintain an action for possession of the same in their own name". In Muhammad Sharif's (1992 M LD 37) case it was a case in respect of land which was auctioned and the appellant being highest bidder, was transferred the same as per sale-deed when the respondents filed the suit for declaration and they were owners in possession. The contention in the said appeal before the High Court was that the agreement Exh.3 was void being in violation of section 19 of Colonization of Government Land (Punjab) Act, 1912 and that section 19 of the said Act prohibited the Government tenant from transferring his rights or interest to a third person without first obtaining the consent of the Commissioner, or any other officer duly empowered by him in writing. As such the appellant was held to have acquired the status of the tenant of the said agreement Exh.3. In the circumstances the above cited case has no application to the facts of the instant. Case. In the case of Ghulam Hussain (1987 SCM R 1115) it was case under Colonization of Government Lands (Punjab Act, one Veer Singh was considered as grantee who failed to take over the disputed land with the permission of Collector, therefore, in law he was not deemed to a tenant or to have any right or title in the said land which was allotted to him. In the circumstances this case is also not applicable to the facts of instant case.
10. ' So far the case of Haji Noor Muhammad (PLD 1975 Kar. 373) relied upon by learned counsel for respondent No,2, it was a constitution petition, wherein the petitioners' predecessor-in-interest was allotted one plot with the condition that construction on the plot would be raised within two years in accordance with the approved plan but it was not raised, therefore, it was cancelled and same was allotted to some other person by the K.D.A..Which action of K.D.A. Was challenged in the writ petition and in the said circumstances their lordships of Division Bench observed that the allotment was right in rem which is passed to the allottee. However, in the instant case there is no question of allotment but is of licence which has been specifically stated in Exh.7 Form A/1. Therefore, cited case would not apply to the facts of the instant case.
11. ' So far the case of Abdullah Bhai (PLD 1964 SC 106) it was a case of ejectment filed against the tenant and sub-lettee in respect of the shop between the parties. In the instant case the respondent No,2 has neither been granted allotment nor it has been leased out nor it has been rented out the said plot to the respondent No,1 and the applicants being third party, the cited authority has no application to the facts of instant case. In case of Nasira Sultana (PLD 1975 Karachi 608) it was also a case of allotment of plot land by KDA and another and by the terms of agreement of allotment a person in whose favour the allotment was made was entitled to be put into possession who was to raise construction over plot and on payment of occupancy value whereafter the KDA was bound under the agreement to grant lease of 99 years. However, the facts of instant case are quite different and distinguishable to the facts of cited case hence no applicable.
12. On going through the evidence on record as well as case law it could conveniently be said that respondent No,2 being a licensee was athorised to enter upon the land and raise construction thereon in accordance with the approved plan of K.M.C. And thereafter, he was to be granted lease in his favour. It has also been specifically stated in Exh.7 Form A/1 that the licensee would have no right or interest in land in dispute until he would get lease-hold rights over the disputed land subject to fulfilment of conditions mentioned in Exh.7 Form All but those conditions were not yet fulfilled by respondent No,2 hence lease in respect of suit plot has not yet been granted to him, therefore, present sit filed by respondent No,2 against the applicants for possession would not be maintainable in law. Reference may be made to (i) Manbahal Rai and others v. Ram Ghulam Pandey (AIR 1927 Allahabad 633) wherein the learned Single Judge observed:-- "A licence passes no interest in immovable property to the licensee, but only makes an action lawful which, without it, would have been unlawful. The licensee, not having an interest in the site, cannot maintain an action for possession of the same in his own name. Heap v. Hartley (1889) 42 Ch. D., 561, rel on (P.634, C.1)".
(ii) Ghulab Khan and another v. Lal Muhammad Khan (AIR 1926 Oudh 609) wherein the learned Single Judge observed:-- "That if the document is to be considered a mere licence then, under section 52 of the Easements Act, it cannot create any interest in the property; and that if it is to be treated as a lease it is invalid under the provisions of section 107 of the Transfer of Property Act, and that in either case a person in actual occupation of the plot cannot be ejected by means of that document."
(iii) Gajo Rai and others v. Gaura Devi and others (AIR 1960 Patna 498) wherein the learned Judges of Division Bench observed:-- "In the present case the plaintiffs do not claim possession of the plot over which they claim right of passage. Their legal position is that of a mere licensee, and there is no warrant in law for saying that a licensee as such can bring a suit or get a declaration for removing the obstruction put up by third parties over the subject-matter of the license. Learned counsel is unable to cite any authority in support of such proposition. It is also not warranted by any legal principle."
(iv) Rasdeo Rai v. Dwarka Ram and another (AIR 1916 Allahabad 219(2) wherein the learned Judges of Division Bench observed:-- "It seems to us fairly clear from the language of sections 52 to 64 Easements Act that even if the plaintiffs respondents be mere licensees whose license has been improperly revoked their remedy lies not in a suit for possession, but in a suit for damages as laid down in section 64, as a licensee is a person without any title and has no interest in the land."
13. The fact that the respondent No,2 is a licensee is evident from the evidence on record which the both Courts below have misread and, thus, there has been misreading of evidence amounting to illegality, therefore, the present revision applications would be competent. Accordingly, the judgments of both Courts below are set aside and Suit No,728 of 1974 filed by respondent No,2 is dismissed. However, the respondent No,2 would be at liberty to move the K.M.C. To put him in possession of the land in accordance with law of which respondent No,2 is the licensee as per Exh.7 Form A/1. So far the Suit No,1114 of 1970 filed by the applicants for declaration and possession having been filed on the basis of long possession of the disputed land which land admittedly belonged to the K.M.C. Would also be not maintainable as no right has been shown to be vested in or has been created in favour of the applicants and this Court could not grant the declaration of entitlement of the applicants over the land in suit in the circumstances of case on account of their long possession which land is owned by K.M.C. Which body would be competent to dispose of the land in suit in accordance with law, rules, instructions and policy in force. In the circumstances the evidence as well as law has been misread consequently the revision applications are competent and maintainable. However, the finding of two Courts below in respect of dismissing the Suit No,1114 of 1970 is maintained holding that suit to be not maintainable as no vested right has been shown to exist over the land in dispute in favour of applicant. However, the applicants would be at liberty to move the K.M.C. For their entitlement over the plot in dispute. In consequence of above observations and reasoning's, the Civil Revision Application No,47 of 1994 is dismissed whereas Civil Revision Application No,48 of 1994 is allowed in terms of the order passed.