1984 PLP 174 (MLD)

(2) Whether the suit is bad for misjoinder and non-joinder of parties? (3) Whether the plaintiff has not given correct description of the suit property? (4) Whether the plaintiff purchased the suit property from Shahdad Khan? (5) Whether the suit property was transferred to the defendants and others by Government? (6) Whether the defendants and others obtained the licence over the suit land and made construction over it, if so, what the effect? (7) Whether the defendants are protected under section 60(b) of the Easement Act? (8) What should the decree be?"

5. All the issues, except -No.6, were decided in favour of the appellant. On issue No.6 it was held by the learned trial Judge that the respondents are occupying the land as Licensees by virtue of a temporary allotment granted to them by the Settlement authorities, that the licence has not been cancelled by the appellant, who has the status of licensor, and that the possession of the respondents is protected by sections 60 and 63 of the Easements Act, because a licensee cannot be ejected without giving notice of revocation to the licensee and further affording sufficient time to the licensee to vacate the land.

6. The plea of the respondents was that they had raised Kutcha construction on the land in question and as such their licence was not liable to be revoked by virtue of section 60(b) of the Easements Act.

7. The learned trial Judge did not accept the plea of the respondents in respect of the benefit of section 60(b) for the reason that no work of permanent nature was constructed by the respondents on the land in dispute. They had raised only temporary construction which did not entitle a licensee to the benefit of clause (b) of section 60 of the said Act. However, it was held that since no notice of revocation was given by the appellant nor sufficient time had been allowed to the licensee to vacate the land, the suit was liable to be dismissed. In appeal the learned District Judge also confirmed this finding.

8. It is unfortunate that the trial Court as well as the first appellate Court have taken wrong view of the law applicable to this case. In the first place the fact that the respondents were temporary allottees was not considered vis-a-vis permanent settlement effected in favour of appellant's predecessor Shahdad Khan. As soon as the land is settled permanently in favour of a claimant under settlement scheme, the temporary allotment by its very nature becomes ineffective. The view of the two Courts below that the respondents were licensees of the Rehabilitation Department is on the face of it unacceptable. The respondents were allowed temporarily to occupy the land in dispute for cultivation. This permission shall be deemed to have been revoked as soon as the land is permanently settled under the Settlement scheme in favour of a claimant who in this case was Shahdad Khan, the predecessor of the appellant. Hence even if there was any licence in favour of the B respondents, it stood revoked as soon as the land was permanently transferred to Shahdad Khan. Reference in this case may be made to section 61 of the Easement Act, according to which a licence may be revoked even impliedly. Illustration (b) to the above section reads as under:- "(b) A, the owner of a field, grants a licence to B to stack hay on the field, A lets or sells the field to C. The licence is revoked."

9. Even if there had been any licence in favour of the respondents it stood revoked as soon as the land was transferred permanently to Shahdad Khan, in view of the above illustration.

10. Learned counsel for the appellant has relied on section 4(3) of the Displaced Persons Land Settlement) Act XLVII of 1958 which is to the following effect:- "(3) On the publication of a Notification under subsection (1) or subsection (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the Notifi cation shall, with effect from the date of such publication be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances." Under the above provisions two notifications were issued by the Federal Government on 15-4-1959 and 8-6-1960 whereby all evacuee land was resumed free of all encumbrances and placed at the disposal 'of the Provincial Government for disposal under the Settlement scheme.

11. Mr. Muhammad Ismail H.Memon learned counsel for the appellant has argued that the word "encumbrances" appearing in subsection (3) of section 4 also include licence and that when the land is resumed free from all encumbrances, it shall be deemed that all encumbrances including even licence stand abolished. In support of this argument the learned counsel has of Subedar Muhammad Afzal v. Syed Nafis Ahmed and others P L D 1962 Lah. 45 in which a Division Bench consisting of Shabbir Ahmed and Anwarul Haq, JJ. observed that the word "encumbrances" used in section 4(3) of the said Act of 1958 would also include all easements. Licences is also a sort of encumbrance and shall be deemed to have disappeared as soon as the land is resumed under section 4(3) of the Act of 1958. In the above case the learned Judges have also referred to the decision in the case of Abdul Karim v. Chief Settlement Commissioner P L D 1961 Lah. 394 which was also of a Division Bench. Following observations in this case were quoted with approval in the case of Subedar Muhammad Afzal:

"Now by Notification No.U.-8-79/3113, dated 21st August, 1979, issued under section 3 of the Act, all immovable property in West Pakistan to which the Act is applicable was acquired by the Government of West Pakistan for the Central Government under subsection (2) of section 3 of the Act. Subsection (3) of section 3 of the Act says that when notification about acquisition is published under subsection (2) the property mentioned in notification shall vest wholly and absolutely in the Central Government free from all encumbrances, and the interest of the evacuee in the property shall be extinguished. On a plain reading of this provision of the Act, it would become clear that whatever rights any person had in the property which was evacuee property, be that person an evacuee or anybody else, shall cease to exist on the issue of the notification about acquisition. The learned counsel for the petitioner urged that encumbrances mentioned in subsection (3) of section 3 of the Act would mean only mortgages, changes and liens and not the rights of tenants, and in support of this contention he relied on section 57 of the Transfer of Property Act. It appears to me that it is not permissible to hold that the word "encumbrances" occurring in subsection (3) of section 3 of the Act has the same meaning as in section 57 of the Transfer of Property Act. No definition of the word "encumbrances" is given either in the Act or in the "General Clauses At and one has, therefore, to turn to dictionary meaning of the expression which would clearly include the right which a tenant has in the property of another, because such a right is clearly an encumbrance on the property. It follows, therefore, that as soon as the notification under subsection (2) of section 3 of the Act was published, the property vested in the Central Government free from all kinds of right that anybody may have had in it before the publication of the notification. It would follow that when the Central Government transfers the property which it has acquired under section 3 of the Act, the vendee would get the property free from all encumbrances because that was the nature of the title of the vendor and this would have been so in all cases of transfer under the Act, but for the provisions of section 30 of the Act with regard to properties dealt with in the Act." It was further observed in Subedar Muhammad Afzal's case with reference to the meaning of the phrase 'free from all encumbrances that: "the phrase 'free from all encumbrances' means that the aggregate of rights the property has been acquired with the result that all easements, tenancy rights and customary rights disappear.

12. In view of the above decision, it can safely be inferred that a licence granted to a person temporarily in respect of evacuee land shall also disappear as soon as notification under section 4(3) of the Act of 1958 was issued. In view of the above discussion I hold that both the lower Courts have taken a grossly erroneous view about the term 'licence' and have misapplied section 63 of the Easements Act. It is no where provided that a notice is necessary for revocation of licence. A licence can be revoked impliedly also as provided in section 61 and illustrated in illustration (b) to the above section. Moreover the very fact of filing the suit by the appellant amounts to revocation of licence, if there was any. The two Courts below have placed undue weight on the fact that a licensee cannot be ejected from the land without affording him proper opportunity to remove his goods from the land. This emphasis is also misconceived. The suit was filed in the year 1969 by the appellant and it was decided on 23rd January, 1971. Thereafter appeal was filed before the Additional District Judge which was decided in December, 1971. Again the present appeal was filed in 1972 and it remained pending in this Court uptil now. The respondent, if at all they were licensees, have about 13 years of time to remove their goods or temporary structure from the land in dispute. For the above reasons the appeal is allowed, the judgments of the two Courts below are set aside and the suit of the appellant is decreed with cost throughout. M. Y. H. Appeal allowed.