198 PLP 1744 (MLD)

Relevant it would be to reproduce below the contents of the letter, dated 30‑4‑1975 (Exh.3‑C) written by Wahid Akhtar Kayani the plaintiff, to the Administrator of the defendant hospital. it reads as follows: ‑ "To The Administrator, Holy Family Hospital, Karachi. Sir, With due respect I beg to say that my father has been running a canteen which is expiring on 30th April, 1975. My father is out of the country and the carileen was run by me. Since my father is no more interested in the canteen as he is out of the country I wish to run the game 9n licence from 1st May, 1975. For which I shall pay Rs.240 per month as licence fee and also deposit a sum of Rs.1,000 as a security. I, therefore, request you to grant me the licence of the Holy Family Hospital Canteen in my name. Thanking you. Yours Obediently, (Sd.) Dated: 30‑4‑1975 ' (WAHID AKHTAR KIYANI) Canteen Contractor." Significant also is the letter, dated 27‑4‑1977 Exh.3‑D written by the plaintiff to the defendant, the same beipg relevant is reproduced below: ‑ To, The Administrator Holy Family, Hospital, Soldier Bazar, Karachi. Sub:‑ RENEWAL OF THE CANTEEN CONTRACT Respected Sir, Most respected I beg to state that I am old contractor in Holy Family, Hospital under your kind control, which date of contracting are finished on,30‑4‑1977. 1, therefore, requested that the contract of canteen may please be given in favour of me as my service may know the last period of contract which is finished the above showing date, and oblige me., Thanking you in anticipation.. Your's Obediently, (Sd/.) (Wahid Akhtar Kiyani)." The letters when produced and 'exhibited were not objected to. Moreover, the plaintiff neither examined himself to deny these letters nor submitted to cross‑examination. On the other hand the defendants examined Samual Xavier, its personnel officer who produced the above referred two letters (Exh.3‑C and Exh.3‑D) of the plantiff, and stated that the said letters bear the signatures of the plaintiff. Neither the plaintiff nor any of his witnesses denied the fact that these letters were written by the plaintiff. Both the Courts below have also given concurrent findings that these letters bear the signature of the plaintiff. Thus, according to the plaintiff own case, from which he in vain tried subsequently at the time of filing of the suit to resale, he is a mere licensee. The nature of plaintiffs limited rights to run the canteen have been rightly described by Samual Xavier (D.W.1 Exh.3) who in his evidence stated:‑ "The canteen is meant to cater the Hospital employees, visitors and the patients. We have fixed timings for opening and closing of the canteen, because visitors are allowed for a limited time. For employees also and the patients also there are fixed tea, lunch, breakfast and dinner times. This canteen does not cater food. The hospital looks after the entire property of the hospital, which includes this canteen. The Chowkidar have been deputed to control the gates and they do not allow canteen catering beyond the fixed timing of the Hoqpital. The total supervision of the canteen is in the hands of the hospital. The plaintiff is mere a licensee. The above statement of the defendant's witness has remained unshaken in cross‑examination. Thus, it is prayed on record as also found by the two Courts below that the plaintiff was a mere licensee to run the canteen situated in the compound of the hospital, having no exclusive possession and the hours of its functioning are regularised by the defendant so as to cater the needs of the patients.

5. Mention here may be made that both the learned Advocates relied upon the same set of case law reported as Muhammad Yasin Riazzuddin Ahmed P L D 1957 .Kar. 241, M.A. Faruqi v. Sajid Ali Khan and another P L D 1975 Kar. 631; 'Ashfaq Hussain and others v. Karachi Municipal Corporartion and others P L D 1957 Kar. 918, Abdullah Bhai and others v. Ahmad Din P L D 1964 S C 106 and M.A. Naser v. Chairman, Pakistan Eastern Railways and others P L D 1965 S C 83, laying down the test to determine if the right given amounts to lease or licence. The authoritative principles have been laid down by the Honourable Supreme Court of Pakistan in the two cases referred above, and, therefore, it is not necessary to refer to other cases. In the case of Abdullah Bhai and others v. Ahmad Din (ibid), the Honourable Judges held:‑ "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 continuance 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 ram and not in personem and by the lease a right in ram is transferred to the lessee. On the other hand a 'licence' as will appear from. Its definition in section 52 of 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 ram passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass in so far as it is a right in the land (a right in ram) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be a licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licensee. This contract may specifically be enforced, but it grants only a right in personem. As will appear from what is stated above the criterion for distinguishing between a lease and a licence is simple, i.e. whether any right in immovable property itself, a right in ram, has passed to the person concerned, but the determination of this question may be difficult in the circumstances of a particular case. It will be a matter of an inference from all the attendant circumstances. Where there is a document, of course the evidence will have to be considered with due regard to the provisions of sections 91 and 92 of the Evidence Act." And in the case of M.A. Naser v . Chairman, Pakistan Eastern Railways and others P L D 1965 S C 83 on the facts of the case it was observed:‑ " It is clear that this agreement merely conferred a right to carry on business of catering in the Refreshment Rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a licence coupled with a transfer of property' within the meaning of section 60 of the Easements Act. Nor can it be suggested that the Contractor was, required 'to execute any work of permanent character' in connection with the business. No doubt his business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as "execution of a work of permanent character." As to the maintainability of the suit seeking a declaratory relief in the above-cited case, it was held: "In the suit there was also a prayer for a declaration under section 42 of the Specific Relief Act that the contract in question was still subsisting. The learned counsel has not pressed this point before us. Under the provisions of section 42 of the Specific Relief Act a person entitled to any legal character' or to finy right to property' can instituted for a declaratory relief in respect of his title to such legal character or right to property. It will, therefore, suffice to say that section 42 does not contemplate a suit like the present one." Applying the above principles, I am of the opinion agree in with the findings given by the two Courts below that the status of the plaintiff was merely that of a licensee.

6. The upshot of the above discussion is that the concurrent findings given by the two Courts below holding that the plaintiff is a licence d not suffer from any of the infirmities within the meaning of the provisions of section 115, C.P.C. The suit seeking declaratory relief filed by the plaintiff was also not maintainable under section 12 of the Specific Relief Act. This Revision Application in the circumstances is dismissed but with no order as to costs. H. B. T. Revision petition dismissed.