1988 PLP 1142 (CLC)

‑‑‑S . 60‑‑Civil Procedure Code (V of 1908) , S . 115 Revisional jurisdiction against concurrent findings of fact, exercise of‑‑Construction by licence on premises‑‑Effect‑‑Evidence on record evidently showing that licensee/ applicant had raised construction over disputed plot only after service of notice on him by licensor to quit same‑‑Courts below, held, rightly concluded that licensee had failed to establish that by such construction, licence granted in his favour had become irrevocable under S.60 of Act‑‑Inferences concurrently drawn by two courts below neither perverse nor contrary to record, could not be interfered with in revisional jurisdiction of High Court, when no misreading of evidence on part of courts below was pointed out. Rashid‑ud‑Din for Applicant. Malik M. Saeed for Respondent. Date of hearing: 11th November, 1986. The applicant /defendant has filed this Revision Application against the two concurrent judgments of the courts below. The relevant facts are as follows:‑ The respondent instituted suit No.1756/68, against the applicant for possession and mesne profits. It was alleged in the suit that the applicant was the licensee of the respondent whose licence has been terminated but he refused to vacate the premises. The applicant took the plea in the suit that although he was licensee of the respondent in respect of open space of the quarter in dispute but since he has raised permanent structure in pursuance of the licence he could not be evicted from the premises as his licence became irrevocable as a result of permanent construction raised by him. Both the courts below came to the canclusion that the applicant failed to prove that he has raised construction of permanent nature pursuant to the licence. It was also found by the learned courts below that the evidence on record shows that the construction raised by the applicant was of a very recent date and that the same was never raised with the consent of the respondent so as to confer right of a permanent licence on the applicant. It was also noticed by the courts below that the plea of licence having become permanent is inconsistent with the plea of the applicant raised in the earlier suit in 'which he had claimed to have purchased the property from the respondent. Learned counsel for the applicant contends that there was sufficient evidence on record to show that the applicant was residing in a portion of the disputed quarter which was originally an open space and on which applicant had raised permanent structure consisting of a room, bath room, W.C. etc. It is accordingly contended by the learned counsel that as structure of permanent nature was raised by the applicant over the plot the licence by the respondent in his favour became irrevocable. After hearing the learned counsel for the parties at length and after going through the evidence on record I am of the view that the courts below rightly decreed the suit of the respondent. It is an admitted position that quarter No.5/336, Liaquatabad, was allotted to the respondent in the year 1951. The case of the respondent in the plaint was that after about 5/6 years of the allotment he allowed the applicant to occupy a portion of the quarter as a licensee as he was then in desperate need of a shelter. The further case of the respondent was that on 31‑10‑1961 a notice to quit was served on the applicant but he failed to vacate the premises. The respondent thereafter filed an ejectment application against the applicant under section 18 of the Karachi Small Causes Courts Act, on 30th May, 1962, which was registered as suit No.173/62. The applicant after service of summon in the above suit instituted suit No.425/62, in the Court of Sub‑Judge, First Class Karachi for a declaration that he was co‑owner of the plot. The ejectment suit instituted by the respondent under section 18 of the Karachi Small Cause Court Act was later on transferred at the request of the respondent to the same Court where the title suit instituted by the applicant was pending. Both these suits were consolidated and after hearing, the suit instituted by the applicant for declaration of his title was dismissed while the ejectment suit instituted by the respondent was decreed. The matter finally went to the High Court where the dismissal of the suit of the applicant for declaration of title was maintained. However, the ejectment decree passed in favour of the respondent in the suit instituted under section 18 of the Small Cause, Courts Act was declared ultra vires on the ground that the suit instituted under section 18 of the Small Cause Court Act could not be tried by a civil Court It was in these circumstances that the respondent instituted the present suit No.1756/68, on 1‑8‑1968 for possession and mesne profits. It may be mentioned here that in the earlier suit No.425/62, instituted by the applicant he had claimed that he was a joint allottee of the quarter from the very inception and as such a co‑owner of the plot but in his evidence before the Court in the same suit he put forward the plea that he had purchased the plot 'from the respondent for Rs.200 giving up the case set up in the plaint. The plea of irrevocable licence under section 60 of the Easements Act was also agitated in second appeal No.259/67, filed by the applicant against the dismissal of suit No.425/62 ‑but this plea was repelled by the courts as the learned counsel then appearing for applicant in second appeal conceded that such an argument could not be sustained on the evidence on record. In these circumstances, it is doubtful whether the plea that the licence in favour of the applicant became irrevocable as a result of raising of the construction was at all available as a defence to the applicant in present suit. However, on merits also as rightly held by the Courts below the applicant has failed to establish that the construction raised by the applicant was pursuant to the licence or that it was with the consent and knowledge of the respondent. In fact the courts below reached the conclusion that the construction was raised by the applicant after service of the notice to quit by the respondent and as such construction could not create irrevocable licence in his favour. Learned counsel has very vehemently urged that the conclusion drawn by the courts below that the construction raised by the applicant was after service of the notice to quit is contrary to evidence on record. I have gone through the evidence in the case with the assistance of the learned counsel for the parties. The respondent who was plaintiff in the suit in his evidence Categorically stated that he had temporarily accommodated the applicant in the quarter as his wife was about to deliver a child and had no accommodation. He also stated that the defendant had put a Jugh in half quarter but after receiving notice to quit he started making construction and therefore he gave an application to the K . D . A . and he was restrained by the K . D . A authorities to raise further construction. In the cross‑examination it was suggested to respondent that he had brought a man from the K.D.A who had stopped the applicant from raising one wall to which he has objected. It was nowhere suggested to the respondent in his cross‑examination that the disputed portion of the plot was constructed by the applicant out of his own resources and that this construction was raised in the year 1951 when the applicant allegedly occupied the plot. On the contrary the trend of cross‑examination shows that the attempt of the applicant to raise construction of permanent nature was only objected to by the respondent but he too took steps and got the same stopped from the Authorities concerned. As against this evidence the applicant in his own evidence stated in examination‑in‑chief that he occupied the said plot with the permission of the respondent and that when he occupied the plot there was no construction on it. He also stated in his examination‑in‑chief that now he had constructed one room, bathroom, kitchen room and a latrine on the same. In the cross‑examination he admitted that he had put tin shed on the plaintiff's constructed portion on one side and on the other side he has put up a newly built wall. The two other witnesses examined by the applicant in support of his case also did not support the applicant with regard to the alleged construction on the plot by the applicant as early as in the year 1951. In fact witness Babul Khan in his examination‑in‑chief stated that the defendant's portion is now a complete construction and he further stated that he cannot say whether it is a Katcha hutment or pacca construction. Learned counsel for the applicant contends that the word now stated in evidence of the applicant and his witness Babul Khan has been wrongly written by the trial Court as it does not fit in the evidence of the applicant and his witness, read as a whole. I have read both the evidence of Rehmat Ali as well as Babul Khan and I find that there is no inconsistency in the use of the word 'now' with the rest of the evidence of these witnesses. The word 'now' has been interpreted by the courts below as having reference to a recent date and no exception can be taken to this interpretation by the Courts below. In fact the examination‑in‑chief of Rehmat Ali as well as his witness Babul Khan are quite in accord with the evidence of applicant wherein he stated that the applicant started raising construction of pacca nature only after‑service of notice on him to quit. The inferences drawn by the courts below in this regard are neither perverse nor contrary to record. After reading the evidence as a whole and the judgments of the courts below I am of the view that there is no misreading on the part of the Courts below in arriving at the conclusion that the construction raised by the applicant on the plot was of a recent date as it was raised only ` after service of notice by the respondent to quit the premises. In these circumstances the courts below rightly reached the conclusion that the defendant has failed to establish that by virtue of alleged construction the licence granted in favour of the applicant became irrevocable under , section 60 of the Easements Act. No case for interference is made out. The Revision Application is accordingly dismissed with costs. H . B . T . /R‑40/ K ‑‑‑‑‑ Revision dismissed.