P L D 1971 Peshawar 116 (PLP)

(2) Whether the plaintiff has a cause of action? (3) Whether the suit is not maintainable in the present form? (4) Whether the plaintiff is estopped by his conduct to bring the suit? (5) Relief.

3. On issue No. 1, the trial Court (Civil Judge Ist Class, Peshawar) held that the plaintiff was paying Tehbazari tax to the defendant and as such he has no vested rights to continue with the possession of the suit plot. On his finding on all the issues, the learned Civil Judge by his judgment dated 16‑12‑70, dismissed the plaintiff's suit.

4. The plaintiff's appeal also failed before the Additional District Judge Peshawar, on 15‑3‑

71. The plaintiff's has come up on second appeal.

5. Mr. Muhammad Nazirullah Khan Advocate, learned counsel for the plaintiff‑appellant strenuously argued that the plaintiff‑appellant is a tenant of the rented land and not a licensee, and as such the plaintiff is not liable to be ejected unless the defendant takes proceedings of ejectment in the Court of Rent Controller or a civil Court. The two Courts below have repelled this contention, holding that the plaintiff‑appellant is a licensee of the plot in dispute and not a tenant on behalf of the defendant‑respondent (Municipal Committee, Peshawar). Section 2 (f) of the West Pakistan Urban Rent Restriction Ordinance, 1959, defines "rented land" as meaning "any land let separately for the purpose of being used principally for business or trade." Section 2 (i) defines "tenant" as meaning' "any person by whom or on whose account rent is payable for a building or rented land . . . . . ." Section 52 of the Easements Act, 1882, defines "license" thus:‑ "

52. 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 immovable property of the grant or, 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." A distinction has been drawn between a license and tenancy, in Abdullah Bhai and others v. Ahmad Din (P L D1964 S C 106). At page 110 it has been observed: "The line of demarcation between a lease and a licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e., the right of enjoyment of the property, for a period, for consideration. During the con tinuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand a `licence' as will appear from its definition in section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee." In the light of the authority laid down by the Supreme Court, I am of the vie w that the plaintiff‑appellant is a licensee of the suit plot and not a tenant on the disputed plot on behalf of the defendant (Municipal Committee, Peshawar). The injunction prayed for by the plaintiff has, therefore, been rightly refused by the two Courts below. In the result, this appeal fails and is dismissed in limine. K. B. A. Appeal dismissed