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Regular Second Appeal No. 112 of 1971, decided on 8^th May 1971.

S. 2(i); Transfer of Property Act (IV of 1882), S. 105 and Easements Act (V of 1882), S. 52‑"Rented land" under S. 2(i) of Ordinance VI of 1959--‑Lease and licence‑Person occupying plot of land and carrying on fuel business thereon by paying Tehbazari tax to Municipality‑‑A mere licensee and not tenant to respect of land.

A lease under section 105, Transfer of Property Act, 1882, is a transfer of an interest in the immovable property. During the continuance of the lease the right of enjoyment of the property belongs to tenant and not to the landlord. By the lease the right in rem is transferred to the lessee. On the other hand under section 52 of the Easements Act, 1882, a licence is merely a competence to do something which except for the permission would be unlawful. No right in rem passes to the licensee. A person occupying a piece of land belonging to a Municipality and carrying on fuel business thereon by paying Tehbazari tax to the Municipality would be a mere licensee and not a tenant in respect of the land.

Abdullah Bhai and others v. Ahmad Din P L D 1964 S C 106 ref.

Muhammad Nazirullah Khan for Appellant.

Record perused.

2. The undisputed facts between the parties are that Municipal Committee, Peshawar, is the owner of a plot situated outside Lahori Gate, Peshawar City. On this plot the Municipal Committee, Peshawar, permitted Haji Niaz Muhammad to carry on the business of fuel. For the same purpose the Municipal Committee, Peshawar had issued a license to Haji Niaz Muhammad. The license was renewable annually. The licensee pays a monthly tax of Rs. 24 for carrying his business on the plot in dispute. One of such licenses, in original, is Exh. D. X/1 produced by Haji Niaz Muhammad at the trial. On 27‑12‑6) the Taxation Officer, Municipal Committee, Peshawar, issued a notice Exh. D. X. to Haji Niaz Muhammad that his Tehbazari pass is cancelled and that he should vacate the suit plot within seven days. Later on, 27‑2‑70, Haji Niaz Muhammad gave an application Exh. D. X/2 to the Chief Officer, Municipal Committee, Peshawar, requesting that his Tehbazari pass be continued. In the meantime Haji Niaz Muhammad had also instituted the present suit against Municipal Committee. Peshawar, through the Chief Officer for the issuance of a permanent injunction against the defendant to the effect that the defendant be restrained from ejecting the plaintiff illegally from the plot in dispute. It is averred in the plaint that the plaintiff' is paying Rs. 24 per mensem kiraya bator‑i tax) since about 12 years, for carrying on his fuel business on the plot in suit, and that the defendant is illegally ejecting the plaintiff. The defendant controverted the pleas in this plaint on the chief ground that the plaintiff is an holder of "Tehbazari" pass only, on the pleadings of the parties, the following issues were framed:‑

(1) Whether the plaintiff is entitled to the grant of the injunction prayed for

(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

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