2020 PLP 353 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the consolidated judgment and decree dated 11.07.2012, passed by the learned Civil Judge, Depalpur whereby the suit for possession of the respondents was decreed as prayed for and the suit for specific performance of the petitioners was dismissed and the judgment and decree dated 25.06.2019, passed by the learned Additional District Judge, Depalpur dismissing the appeal of the petitioners.

2. Brief facts of the case are that the respondents (plaintiffs) filed a suit for possession on 03.04.2004 in respect of a house measuring 01 Kanal 18 Marla situated in Moza Baseerpur Tehsil Depalpur fully described in paragraph No.1 of the plaint on the basis of Mutation No.4792 dated 10.09.2003. Further contended that the father of the respondents/plaintiffs gave possession of the suit house to the petitioners/defendants for temporary residence about six months before his death. The father of the respondents/plaintiffs died on 02.11.1992 whereafter the respondents/plaintiffs demanded the possession of the suit house but the petitioners refused to do so upon which they filed suit. In counterblast the petitioners/defendants also filed a suit for specific performance on 28.09.2004 alleging therein that they purchased the suit house on the basis of an agreement to sell dated 10.09.1985 against consideration of Rs.150,000/- from the father of the respondents/plaintiffs and got possession. The respondent/plaintiff denied the execution of alleged agreement to sell as well as receiving the consideration. The learned trial Court consolidated both the above said suits, framed issues, recorded evidence of the parties and finally decreed the suit for possession filed by the respondents/plaintiffs and dismissed the suit for specific performance filed by the petitioners vide judgment and decree dated 11.07.2012. Being dissatisfied, the petitioners filed an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 25.06.2019. Hence, this civil revision.

3. Learned counsel for the petitioners does not press the judgment and decree of the learned Courts below to the extent of suit for specific performance filed by the petitioners. Further submits that the petitioners got the possession of the suit house as licensee in the year 1985 whereas the respondents/plaintiffs filed suit for possession in the year 2004, as such, the suit of the respondents/plaintiffs was hopelessly time barred and to that extent, both the judgments and decrees of the learned Courts below are not sustainable.

4. I have heard the arguments of learned counsel for the petitioners and have gone through the record with his able assistance.

5. At the very outset learned counsel for the petitioners does not press this revision petition to the extent of suit for specific performance filed by the petitioners, as such to that extent, this revision petition is dismissed being not pressed.

6. In this case, the respondents claimed that the petitioners are licensee who after revocation of the license, refused to vacate the premises. It is appropriate to understand the word "license" which has been defined in Section 52 of the Easements Act, 1882 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 immoveable 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." The aforementioned definition contains the following stipulations for a valid license; i. a right is granted by the grantor, ii. the right is to do or continue to do something, iii. the right must be in respect of the immovable property of the grantor, iv. the act which the grant permits must be such as would be lawful but for the permission, and v. the right must not amount to an easement. Section 60 of the Act ibid provides the powers for revocation of the license by the licensor / grantor, which is reproduced as under: "

60. License when revocable. A license 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 license, has executed a work of a permanent character and incurred expenses in the execution." Section 61 of the Act ibid states that the revocation of a license may be express or implied. Section 62 of the Act ibid provides that when a license will be deemed to have been revoked. Section 62 is reproduced as under: "

62. License when deemed revoked. A license is deemed to be revoked- (a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license: (b) when the licensee releases it, expressly or impliedly, to the grantor or his representative: (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled: (d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right: (e) where the licensee becomes entitled to the absolute ownership of the property affected by the license: (f) where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable: (g) where the license is granted to the licensee as holding a particular office, employment or character, and such office employment or character ceases to exists: (h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee: (i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist." Section 63 of the Act ibid provided the authority to owner to revoke his license. Section 63 is reproduced as under: "

63. Licensee's rights on revocation. Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property." The above provision of law protects the rights of the licensee only for grant of "reasonable time" enabling him to vacate the premises. It is the case of the petitioners that they were licensee under the respondent since long and they cannot be evicted as suit of the respondent for ejectment was barred by time. The pivotal question before this Court is to answer whether a licensor is precluded to evict the licensee through process of law after lapse of a considerable time. Admittedly a license remains continue till the existence of permission of the licensor and the moment such permission is withdrawn or extinguished by operation of law, by violation of such terms and conditions of the license this feeble right comes to an end, whereafter the possession of the licensee termed to be that of mere a trespasser and denial of handing over the possession of the property would give a recurring cause of action to the licensor for the eviction of licensee and licensee is debarred to claim any right qua the title of the property whereas the petitioners today withdrew their claim regarding the specific performance of agreement and have waived their right to obtain title of the property and now they claim right on the basis of delayed filing of the petition for ejectment and it is well settled by now that "once a licensee is always a licensee". Licensee is a person who retains possession of the property till continuation of the permission to retain the property. After termination of the license, the possession of the licensee becomes that of a trespasser and he can be evicted from the premises by the use of minimum force. The term permissive possession has been defined by the August Supreme Court of Pakistan in case titled as Mrs. Irene Wahab v. Lahore Deocesan Trust Association (2002 SCMR 300) as under:- "Permissive possession would continue to be permissive and could not be treated as hostile merely by efflux of time to the knowledge of owner." Similarly, in case of Zarshad v. Shah Gul (PLD 2003 SC 650), the Hon'ble Supreme Court of Pakistan reiterated the same principle in the following terms:- "Permissive possession is not changed by efflux of time."

7. The most reiterated and emphasized argument of the petitioners is that by elapse of a long period of time, the licensor/respondents are precluded to seek the eviction of the petitioners, suffice it to say in this regard that section 28 of the Limitation Act, 1908 has been declared against the injunctions of Islam through a celebrated judgment Maqbool Ahmed v. Government of Pakistan (1991 SCMR 2063), the relevant portion whereof is as under:- "For reasons recorded in two separate judgments, the Court is unanimous in holding that section 28 of the Limitation Act, 1908 (Act No.IX of 1908) is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. It is further held that this decision shall take effect from 32nd of August, 1991 and on this date section 28 aforesaid shall also cease to have effect." With regard to filing a suit for recovery of possession against a licensee, who is holding mere permissive possession the question of limitation wear little significance as held in the judgment reported as Dilawar Shah v. Jannat Gul (PLD 2004 SC 59) the august Supreme Court of Pakistan held that:- "The question of limitation finds no place in the suit on account of permissive possession of the appellants." The Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled as Feroz Din Khan v. Muhammad Latif Khan (PLD 2012 SC AJK 13), while dealing with question of limitation in a suit filed by a person on the basis of title against the person in possession (who was not a licensee), after taking into consideration the effect of deletion of Article 144 of the Limitation Act, 1908 came to the following conclusion:- "After deletion/omission of Article 144, no other Article of Limitation Act governs the limitation for filing a suit on the basis of title or interest in the property. This brings us to the conclusion that there is no period of limitation for filing a suit for possession of immovable property on the basis of title. A true owner can file a suit for possession of immovable property anytime on the basis of title." On the same question the learned Sindh High Court in case reported as Government of Sindh through Secretary Education v. Begum Aisha Ahmed Ibrahim Bawani (PLD 2018 Sindh 431) held that limitation starts when the notice of revocation is issued and if a notice is not served properly, then the license becomes revoked when suit was filed. In view of the above, it may be stated that in case of permissive possession, there is no question of limitation.

8. In this case the respondents, owner of the suit property, revoked the license of the petitioner one year before filing the suit, as such, it would be legally presumed that cause of action arose to the respondents when they revoked the license of the petitioners one year before filing the suit and not from the date of granting the license of property to the petitioners. Reliance is placed on Commissioner Multan Division Multan and others v. Muhammad Hussain and others (2015 SCMR 58). Hence, the argument of learned counsel for the petitioners that the suit filed by the respondents was time barred, is misconceived and is hereby repelled.

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

10. In view of above, this civil revision being devoid of any merit is dismissed in limine. No order as to costs. ZC/S-85/L Revision dismissed.