SAEED AHMAD MALIK Versus NAVAL ESTATE OFFICER

ORDER

ABDUL RAHIM KAZI, J.‑‑ This High Court Appeal is directed against the judgment dated 17‑10‑1988, passed by the learned Single Judge of this Court, in Suit No.234/1988, whereby, the, plaint was rejected under Order VII, Rule 11 C.P.C. The case of the appellant is that the appellant had filed the suit for declaration and permanent injunction contending that he was allotted open space at Commercial Complex, Safina Market, Naval Officer's Residence Estate‑1, Karachi, by the respondents vide their letter dated 30‑6‑1982, and that in pursuance of the said allotment the appellant with the knowledge of the respondents invested substantial amount of money and Constructed a Service Station/garage in the said open space. It is further contended that in the month of March, 1987, the appellant approached the respondents for permission to construct an Auto‑workshop on the said plot and in anticipation of the permission, he started preliminary preparatory work at the site and that subsequently on 2‑4‑1987, the Garrison Engineer Navy East Karachi, duly vested the drawings for the construction of the said Auto‑workshop and returned the same to the appellant. It is the case of the appellant that he has spent a substantial amount over the construction, but thereafter some differences arose between the parties and the respondents vide their letter dated 21‑1‑1988 called upon the appellant to vacate the plot. Therefore, the appellant filed the said suit.

2. In the said suit, the respondents filed two applications, one under section 151 C.P.C. for dismissal of the suit and the other under Order VII.Rule 11 C.P.C. for rejection of the plaint, on the ground that the suit was barred under the provisions of section 10 of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, and that the suit was barred under section 42 of the Specific Relief Act. The learned single Judge after hearing the arguments of the parties was pleased to reject the plaint on the aforesaid two grounds. Thus, the present appeal was filed.

3. He had issued pre‑admission notice to the respondents, who in reply, have filed their counter‑affidavit reiterating the same Grounds. It is their case that the said piece of open land was granted to the appellant by way of licence with specific conditions that the appellant shall not at any time claim any right in the said property. They have also contended that the vacant possession of the said plot has already been taken over by the respondents, on 17‑10‑1988.

4. We have heard the learned counsel for the parties. M. Bilal A. Khawaja, learned counsel for the appellant, has argued that even if it be treated as a licence then also the same has become irrevocable, as the appellant with the knowledge and the permission of the respondents has raised the construction of permanent nature thereon. On this plea of the learned counsel for the appellant, we had directed the Nazir of this Court, to inspect the site, in presence of the parties and give his report. The Nazir has also given his 'report showing that there is boundary wall of cement block and pillars and iron grills on the front and on the side of Safina Market and that as per his report all the sheds and rooms thereon are constructed with cement block but has the roofing of 'Nalidar' asbestos sheets. Mr. Bilal A . Khawaja has further argued that according to site plan produced by him, which was vetted by the respondent, he has raised RCC construction of permanent nature. We have examined the site plan, which does not show any such vetting as claimed nor had mentioned any specification or material to be used in construction. All that it shows is only a piece of land marked

Workshop.

5. Repelling the above contention, Mr. Muhammad Umar Qureshi, learned counsel for the respondents, has drawn our attrition to the agreement entered into between the parties, which specifically shows that the said piece of land was granted to the appellant as a licence and he was allowed to raise the Service Station. The contents of paragraph 14 of the agreement read as under:‑

"That the licensor has absolutely no intention to confer on the licensee‑any right in the nature of tenancy and/or proprietary right of any nature whatsoever and no such right or interests are transferred by the licensor to the licensee shall not at any time claim any right of tenancy in the said shops and both the licensor and the licensee declare that it is not intended that any relationship of landlord and tenant be created by these presents and/or otherwise." This very clearly shows that the very transfer of the said plot to the appellant was merely as a licence which would not create any other rights in his favour. Mr. Qureshi has also drawn our attention to a number of letters produced by the appellant himself with the memo of appeal, which show that from time to time the respondents have been writing to the appellant that he is permitted only to raise temporary construction and he was being warned against making any construction of permanent nature. It will be advantageous to reproduce the contents of section 60 of Easements Act here:‑

"60.A licence may be revoked by the grantor, unless:‑

(a) it is coupled with a transfer of property and such transfer is in force,

(b) the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution."

The plain reading of clause (b) of the above section would clearly show that such licence as in the present case does not become irrevocable and can always be revoked at the option of the licensor. The remedy of the licensee, therefore, would not lie in his suit for declaration but he would be entitled to damages, if any, as held in the case of M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 and in the case of Muhammad Hashim v. A Zulfiqar Ali Khan and others PLD 1963 Lah. 418. We, therefore, are clear in our mind that in the instant case the appellant's suit for declaration was not maintainable under the provisions of section 42 of the Specific Relief Act. We also agree with the learned single Judge that the relief of injunction was barred under the provisions of section 10 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965.

6. Even otherwise, the appellant has been dispossessed from the plot in dispute, as asserted in the counter‑affidavit filed by the respondents, which fact has not been controverted by the appellant. B He has not filed any affidavit‑in‑rejoinder to this effect. We, therefore, find no substance in the present appeal, which is dismissed in limine with no order as to costs.

M . Y . H . /S‑281/ K Appeal dismissed.