2003 PLP 2586 (YLR)

Date of hearing: 17th February, 2003. This order shall dispose of the preliminary issue framed on the plea of defendants that the plaintiff has no right in the property, as such he cannot file the suit for declaration of his entitlement, thus the issue 'whether the suit as framed is maintainable'. The plaintiff maintained that the property of Deh Lal Bakhar, 'French Beach' approximately 76.02 acres was inherited by the plaintiff from his forefathers who were granted 'Khori right' at Sea foreshore as long back as in the year 1871 by the British Empire through Annexures 'A' and 'B'. On 8-12-1871, the ancestors of the plaintiff amongst themselves, distributed the various portions of land in question and to this effect Hassan son of Kassim and Isa son of Muhammad gave written undertakings, witnessed by the elders of the family and the community through a deed of distribution of even date. It is also their case that the property was sold/distributed within the ancestors of plaintiff through registered Deeds and mutated in their favour in record of rights. It is also his case that on 7-5-1948, Revenue Commissioner, Sindh while communicating the approval to the Collector of Karachi, for sale of land in favour of the Father of Nation, measuring approximately 70.28 acres from Naclass No.255 of Deh Lal Bakhar for agriculture purposes, the existence of a corridor admeasuring approximately 10 acres was acknowledged and left so that fishermen may be able to continue their work and to have access to the well and be able to spread their nets for drying. The area was also surveyed. It is the case of the plaintiff that on or about 13-7-2000, he further received summons under section 22 of the Land Revenue Act, 1967 from defendant 4 alleging the construction of 'huts' on the land owned by Government without allotment and or without permission to appear on 29-7-2000 at 10-00 a.m. before him, which has been challenged in the suit with the following prayers:- (a) declare that in the light of Annexures 'A' to 'L' filed with the plaint, the plaintiff is legally entitled to occupy, possess and maintain 76.02 acres of N.C. No.255, Deh Lal Bakhar, Taluka, Karachi 'West, along the sea shore strip commonly, known as the 'French Beach'; (b) declare that the plaintiff has regularly been paying all taxes leviable in connection with 76.02 acres of land as mentioned above; (c) restrain the defendant 4 its servants, agents, assigns, representatives or any other person or persons acting through or under them from dispossessing the plaintiff from its lawful possession/ ownership of 76.02 acres of land in question; (d) restrain the defendant 4 their servants, agents, assigns, representatives or any other person or persons acting through or under them from harassing or threatening the plaintiff and/or taking any adverse step which is not in accordance with the due process of law; (e) grant any other relief or reliefs in favour of plaintiff which this Honourable Court may deem fit and proper, in the circumstances of this case; (f) grant costs of this suit. On service of summon, the written statement was filed, whereby the claim of the plaintiff was denied and it was maintained that the mere agreement in respect of the fishing right or 'Khori right' cannot create any title in the land in favour of any person which belongs to the Provincial Government. On 9-12-2002, the preliminary issue was framed and the parties were directed to address the Court on preliminary issue. I have heard Mr. Abbas Ali, Additional Advocate-General, Sindh on behalf of the defendants. None appeared on behalf of the plaintiff in spite of notice. The main contention of the learned Additional Advocate-General was that the effigy of right over the suit-land is based on 'Khori right' reflected in agreement between the Hassan and Moosa and Isa son of Moosa in respect of the fishing and 'Khori right'. It was his contention that so far as the fishing right is concerned, the same cannot be claimed over the land. His further contention was that term is Sindhi word and originate from word means, a heap, stack, pile, according to Oxford Sindhi to English Dictionary by A.T. Shahani of A One Publication, Hyderabad. He maintained that 'Khori right' is permission granted to the fishermen of the area to dry their net, stack their fish, repair their boat etc. on sea foreshore and such right was permitted without any charge by the Government also reflected in Standing Order No.7 of the Revenue Department applicable to the Province of Sindh for the disposal of fishery and aquatic plants etc., Part II thereof pertains to general permission to use sea foreshore by fishermen for the purposes of drying fish or fishing nets, free of charge. The said provision is as follows:-- 'No charge should be levied for the fishermen for the use of Government sea foreshore for the purpose of drying fish or nets, but a small rent should be charged if shed or hut are erected for trade or residential purpose.' (G.R., R.D., No.3005 of 1928, dated 7-3-1930). His further contention was that such right is a licence under section 52 of the Easements Act, The licensee has no right in the property except to use the property. He also maintained that any sale by agreement or registered deed would not confer any right and title as the licensee has no interest in the property. His further contention was that the declaration in terms of section 42 of the Specific Relief Act can be obtained by any person entitled to 'legal character' or 'any right to any property' through a suit, whose right in the property has been or is being disputed. His contention was that mere licence dues not create any interest in the land as it is merely a leave to do a thing lawfully which otherwise would be unlawful and on the basis of 'Khori right', the plaintiff has tried to create effigy of his ownership over the property, which is fallacious and not tenable in law. Licence may be of two kinds, namely, a bare licence which is purely a matter of personal privilege and a licence coupled with grant or interest. A bare licence without more is a matter of pure personal A between the grantor and the grantee of the licence. Such a licence is to be lapsed with the death of the licensor or of the licensee. (1) Alagiri Chitty v. Muthusawami Chitty AIR 1940 Madras 102, (2) Chinnan v. Ranjethamal AIR 1931 Madras

216. A licence is not annexed to the property in respect of which it is enjoyed nor it is a transferable or heritable right but a e right purely personal between the grantor and the licensee (Chinnan v. Ranjithammal AIR 1931 Madras 216). The licensee never had and does not have judicial possession. This is apparent from the very definition of licence in section 52 of Easements Act, as being grant of mere right to do upon the property of another, something which would, in absence of such right be unlawful. That is indeed one of the essential characteristics that distinguishes a licence from lease. In the case of a licence, the legal possession continues with owner, though a licensee may or may not have actual possession of the property of which he is permitted to use, he certainly does not have legal or judicial possession of the same. (Mangam Lal Radio v. State of Meharashtra 1971 Mah. Law Journal 57). The following are some of the illustrations of the Act, which are in the circumstances in which they took place, have been held by the superior Courts to be the evidence of mere user not amount to legal possession:-- (1) Tethering cattles. (2) Using the land for storing/throwing refuse. (3) Keeping fooder, grain and earth. (4) Erection of temporary Otha or shed for cows, goats and fowls; and (5) Using the land for short duration for threshing purposes in a year. It may also be noticed that permission to stack coal in stationyard is a licence (Acting Secretary of Board of Revenue v. Agent South Indian Railway Co. Limited, Trichinopoly AIR 1925 Madras 434). likewise, permission to keep carts on land amounts to a licence (Ram Prasad Mondal v. Smt. Snehalata Ghosh AIR 1967 Calcutta 369). In the instant case, plaintiff's claim is based on two private documents, i.e. agreement dated 8-12-1871 another or undated whereby transfer of sixth share in 'fishing' and 'Khori right' was effected between private individuals. 'Khori right' is permission to fishermen of the area/locality to use sea foreshore for the purpose of drying their fish, fishing nets and fishing boat repairing etc. It is a mere licence to the fishermen to use sea foreshore for the purpose of drying fish net or repairing of fishing boats without specifying an area, such licensee is like other licences for tethering cattles, using the land for storing/throwing refuse, keeping fodder, grain and for threshing purposes. Such general permission does not create any interest in the land as it is merely a leave to dry fish net etc. on sea foreshore, such licence is not annexed to the property in respect of which it is enjoyed nor it is a transferable or heritable right but a right purely personal between the grantor and the licensee and any effigy built with regard to the right in the property, based on agreement or sale between private individuals will not create any title, interest and or any right in the property itself. 'A person cannot convey what he does not possess. On the basis or agreement and sale-deed in absence of any grant, the plaintiff cannot claim any right title and interest so conveyed. It is also well-settled that the entry in the Record of Right is not an evidence of title. If any reference is required the view expressed by the Judicial Committee in Nirman Singh v. Rudra Partab Narain Singh AIR 1926 PC- 100 may be referred. The above 'view was followed in (1) Ram Sarup Rai v. Charitter Rai AIR 1927 Allahabad 338; (2) Rasulan Bibi v. Nand Lal AIR 1930 Allahabad 521 and (3) Mahaded Singh v. Jagmohan Singh AIR 1914 Oudh

235. The above view expressed by Judicial Committee was also followed in case of Kaniz Fatima v. Member, Board of Revenue PLD 1973 Lahore .495, that the mutation does not create a title in favour of any person and also does not adversely affect the rights of any person. The Apex Court approved the view expressed by Lahore High Court in Muhammad Ali v. Hassan Muhammad PLD 1994 SC

245. The plaintiff's own case is that his forefathers were permitted to use the sea foreshore for the purpose of drying fish, net or repairing or the boats, it was simply a licence, without interest in the property/land, the same is not transferable nor inheritable any agreement or sale by registered sale-deed between the individuals will not create any interest or title, nor the mutation in record of rights will confer the ownership right to the plaintiff. Therefore, the plaintiff has no right in the property and has no cause of action to bring the suit on issuance of show-cause notice for the removal of but/construction raised by him. It amounts to revocation of licence. In view of what has been stated above, the suit for declaration in terms or section 42 of the Specific Relief Act in absence of any right in the property is not maintainable when the plaintiff's forefathers were merely the licensee, such licence is revocable, receipts of notice is admitted that amounts to revocation. The plaintiff also cannot claim relief of injunction, therefore, the preliminary issue is decided against the plaintiff. As consequence thereof the suit is dismissed, however, with no order as ,to costs. M.B.A./M-517/K Suit dismissed