1998 PLP 990 (CLC)

This judgment will dispose of Regular Second Appeal No .522 of 1970, wherein the judgment of the learned Additional District Judge Sialkot, dated 25‑3‑1970, accepting the appeal of respondents, reversing the findings of the learned Trial Court and dismissing the suit for pre‑emption, has been challenged.

2. A suit for pre‑emption was filed by Sh. Khiwan, predecessor of appellants, against Sh. Qamar Hussain and Sh. Qudrat Ullah, respondents herein (now represented by their legal heirs), to pre‑empt sale of property, effected through sale‑deed, dated 10‑12‑1963. The suit was resisted on the ground, that the property subject‑matter of sale was not pre‑emptible, no custom of pre emption prevailed in the area and that substantial improvement were made after the sale.

3. The suit was decreed by the learned Civil Judge Sialkot, by his judgment, dated 14‑4‑1969, who observed that the property was a house and not a shop and was thus, pre‑emptible and that the pre‑emptor had superior right of pre‑emption and also that custom of pre‑emption existed in the area.

4. In appeal, the judgment of the learned Civil Judge was reversed and suit was dismissed, by the learned Additional District Judge, by his judgment, dated 25‑3‑1970. It was observed, that the property subject‑matter of sale was shop and, therefore, not pre‑emptible and that custom of pre‑emption could not be proved.

5. In this appeal, the judgment of the learned Additional District Judge has been challenged. Learned counsel for the appellant contended that the learned Civil Judge had recorded a well reasoned judgment after considering the entire evidence‑on‑record and that the same was reversed in appeal, by ignoring certain important evidence on the record. He submitted, that the evidence of Excise and Taxation employee and other documents, namely, the list of voters or Ration Card, were either ignored or not properly construed. He submitted, that on the basis of the evidence, produced by the parties, it could not be held that the suit property was a shop and not a house.

6. Conversely, learned counsel for the respondents submitted that the findings of fact, recorded by the learned Appellate Court is a result of true and proper appreciation of evidence‑on‑record and that neither any misreading or non‑reading of the evidence has been pointed out nor the judgment of the learned Additional District Judge, suffers from any misreading of the record. He submitted that reference to all the witnesses was not material and it is to be seen if the plea raised in evidence had otherwise been taken care of while deciding the appeal and that the impugned judgment would show that the conclusion therein had been drawn after considering the entire evidence‑on‑record.

7. Section 5 of Punjab Pre‑emption Act, 1913 provides that no right of pre‑emption shall exist in respect of the sale of a shop. The term "shop" has not been defined in the Act. This term has remained subject‑matter of consideration in many cases, where the pre‑requisites for determining the character of the property were laid down.

8. In Jaithu Mal v. Janki Das and others (AIR 1917 Lahore 413), it was observed that the decision shall depend on the chief or most important purpose to which the building in question is devoted and that after having regard to the fact that the whole of the lower storey was used for shops while upper storey is a Bala Khana, it would be concluded that the building was primarily a shop or shops and that the residential upper storey was auxiliary or appendage to the lower portion.

9. In Lal chand and others v. Mst. Begum (71 Indian Cases 746), It was observed, that if the two principal rooms of the house were made shops and the primary value of the building lies in the shops. while the rest of house is negligible and is of comparatively insignificant' value and the shop opens into a bazar, occupied as shops for many year's the building will assume a character of shop. It was further observed, that the mere fact that the owners continued to live in uncared for upper storey which could not be put to commercial purposes would not take away from the building such a character, and, although the upper storey may not be occupied by the lessees of the shop, it is nonetheless, a mere appendage to the shops in its present condition.

10. In the light of the view formed, it was observed, that no right of pre emption would exist in respect of such property.

11. In Jhabban Lal and another v. Muhammad Umar and another (AIR 1925 Lahore 544), it was observed, that in deciding whether a particular building is to be considered as a house or as a shop for the purposes of pre emption the primary use to which the building is to put at the time of the sale has mainly to be considered. The length of its use is no doubt an important factor to be considered, but that is not the only consideration. For determining the character of the property, duration of user should depend on the facts of each case and other circumstances., The nature of locality in which the building is situated will be another factor for consideration alongwith other circumstances. If the building is used for more than one purpose, then the primary or more important of the purpose is to be considered. Structural appearance of the building has also to be taken in consideration. It was observed, that if the building was situated in the area which was essentially a business one and for at least 10 or 12 years it was occupied by the tenants who carried on sale of goods while upper storey of the building was not separately rented out for residential purposes but was occupied by customers, dependents and occasionally by members of the firm who carried the business in the lower flat, the building had a frontage on the bazar and there was number of other premises situated in, the bazar where business was carried on, the facts would lead to an irresistible conclusion that the building was essentially a shop and not a house.

12. In Narain Singh v. Maul Singh and others (AIR 1925 Lahore 126), it was observed that a pre‑emptor can only pre‑empt a house and not a shop though both form subject of one sale. It was held that where the property sold consisted of two units, a house and a shop and both these buildings were regarded as separate by the Municipal Committee as well as‑ the vendor who received price for both in the sale‑deed, the suit could proceed, in respect of the house and not in respect of the shop.

13. In Ch. Ghulam Ahmad Khan v. Diwan Sheikh Ghulam Qutab‑ud‑Din and another (PLD 1960 (W.P.) Lahore 461), it was held that where a question arises as to whether a particular structure is a shop or not, it has to be decided after taking into consideration all aspects of the case and no sale of shop would be pre‑emptible.

14. In Haji Muhammad Naim v. Mst. Umatur Rasul and others (PLD 1965 (W.P.) Peshawar 57), it was held that where the property was primarily a house but an insignificant part of its ground‑floor was being used as a shop and was located in a residential Mohalla then it would not be considered to be a shop.

15. In Ali Akbar v. Muhammad Anwar (1981 SCMR 775), it was observed that section 5 of the Punjab Pre‑emption Act contains an exception in respect of certain buildings like a shop and that if only part of the land was covered by the shops and the area stands bifurcated in two parcels, then the property being the shops would not be pre‑emptible but there will be no bar for the grant of relief in respect of the separate parcel of land which was not covered by shops.

16. In Qazi Abdul Ali v. Abdul Majeed (PLD 1982 Lahore 318), it was observed that the term "shop" shall be given ordinary meaning and each case depends upon its own peculiar circumstances and that the primary or main purpose for which the building is used should be ascertained. It was further observed that length of its use, is no doubt an important factor but is not the only consideration. The nature of locality in which the building is situated is one of the factor to be considered and if the building is used for more than one purpose, then the primary, or more important purpose is to be considered, alongwith structural appearance of the building.

17. From the rule laid in the abovementioned cases, it becomes obvious, that for determining the character of the property, the term "shop" is to be given its ordinary meaning, the primary and the principal purpose for which the property is used, has to be taken into consideration, the locality where the property is situated alongwith the structural appearance of the building has to be taken care of, if the property is in use for two purposes, it has to be seen that for which principal purpose, the property was being used, the user of the property at the time of sale has to be kept in view and if the principal part of the property is used as shop/shops, then the user of the negligible part shall be subservient to the use for which the principal part of building was occupied.

18. The review of the evidence, in the light of the rule applicable, will show, that the building subject‑matter of suit had the character of shop, and its primary use has remained as commercial. D.W.I, Deed Writer, proved rent notes, Exh.D‑1 and Exh.D‑3 and rent note Exh.D‑4, whereby the shops were rented out for commercial purposes. He further deposed, that in Mianapura, many people carry on business of supports manufacturing goods. D.W.2, a resident of the area, deposed that there were three shops in the ground‑floor of the building which were occupied by a tenant. The upper portion was used by the shopkeepers for keeping goods. He further deposed, that if one approaches the shop from the hospital side, he would come across many shops in the street. He made a reference to the shop of Allah Rakha Arain, Depot of Muhammad Shafi and others, shops of Abdul Majid Butt Hazoori and Barkat. He deposed that Professor Bhatti had never lived in the property but he used to live in his own house. It was also deposed that the other shops remained in possession of Mail Singh, Allah Ditta Goldsmith and Bashir etc. D.W.3, Allah Rakha, a tenant in one of the shops, in the building in question deposed that he was carrying on business of milk selling and he got two shops. He deposed that in the other shop, Karyana business was being carried on while the third shop was in possession of Saleem and that he had been occupying the shop for the last 25/26 years. He deposed that there was a Chaubara over the shops which he used as a store for the shops. He further deposed that Professor Bhatti used to live in a Tehsil Bazar in a different house. Further deposed that in Mohalla Mianapura, supports, leather and surgical business was carried on time premises and there was shops of milk and Karayana etc. and also there was various shops on both sides of his shop. He admitted execution of rent notes Exh.D‑3, Exh.D‑6 and Exh.D‑

7. D.W.4 is son of Professor Muhammad Din Bhatti who deposed that there were three shops and at the time of sale the shops were in possession of Allah Rakha and Muhammad Ashraf while one room in the upper storey was used as Store and second also used as Store. D.W.5 deposed that lower portion of the property consists of three shops and he had been watching the same as shops for the last 20/23 years. He also deposed the names of the tenants in the shops as Ch. Bashir, Muhammad Din, Aslam, Ashraf, Nazir and Saleem. Allah Rakha was also stated to be in possession of shop continuously while the two other shops were stated to be with Saleem and Allah Rakha. D.W.6, a Shopkeeper in the building, stated that he had seen mark ' B' which was signed and executed by him in favour of Professor Muhammad Din Bhatti and he stated that he remained tenant of the vendor. The statement of D.W.7 pertains to the price of the property.

19. As against this evidence, the appellant produced P.W.1, whose statement was about the custom of pre‑emption. In cross‑examination he admitted, that there are two shopkeepers in the building one Allah Rakha and other Saleem. He further deposed that Allah Rakha carried business of milk. P.W.2 deposed about the custom, but in cross‑examination admitted that there are two shops in the house one used for selling milk. P.W.4 is also about custom. P.W.5 is a local commission who deposed about the valuation. P.W.6 and P.W.7 deposed about list of voters and electoral rolls. P.W.8, an Excise and Taxation Officer, deposed that he brought the record of the building in which, according to him, no shops were shown. He stated that there was seven units in which shops were shown in the street and total number of shops were nine. P.W.8 was a Ration Depot‑holder who deposed about Ration Card but admitted in cross‑examination that his register did not contain any, stamp of the Department and that he did not personally know every Ration drawer and has only deposed on the basis of his register. P.W.10, stated that the building was a house. In cross‑examination he admitted, that the building Taj Mahal Sports was at a distance of 50 yards from the building in issue. He also admitted that Allah Rakha tenant had occupied one of the shops in the disputed building while other names he did not know. Amazingly, he deposed that there was no other shop in the street though P.W.8 had stated that there were seven units, in which, shops were Shown while the number of shops were nine. P. W.11, is one of the appellants who deposed in support .of his plaint. Amazingly, he denied that Allah Rakha was running business at the ground‑floor or that Saleem was doing business in the third shop. He was contradicted by his own witnesses who had admitted the occupation of Saleem and Allah Rakha in the shops.

20. From the review of the evidence, it is observed, that sufficient evidence was produced by the respondent, to prove that at the time of sale, in the ground -floor of the building, three shops were occupied by the tenants who were doing business while the Chaubara and the negligible portion, existing at the upper storey was used by them for storing their goods which were being sold in the shops. The respondent had also produced evidence to prove that Muhammad Din had, never lives) in this property. The evidence also shows, that even in 1942, significant portion was occupied for commercial purposes by tenant. The structure of the building as proved from the evidence is that it comprised of shops and store. In the evidence, it is proved, that there are number of shops and business concerns in the street, where the disputed building is located and business is being conducted there. The electoral rolls, the list of voters and the record of Ration Depot, were hardly relevant evidence, for the purposes of determining the use of the building as on the date of the sale. Even the list of voters which was claimed to have been prepared in 1957, would not be relevant to throw light in determining the user of the property as on the date of sale. Apart therefrom, it is not unusual that many persons are registered as voters, ,at their commercial addresses. Therefore, no presumption can be drawn about the character of the building, simply on the basis of electoral rolls of a much earlier time. The record of Excise Department, would be of no help as it is the common knowledge, that the functionaries of the Excise and Taxation Department, usually do not correct entries in their past record and do not take the trouble for amending it to reflect the true character of the building, in their record. It is common knowledge, that the names of the occupants and the owners are never changed. Many properties are still shown to be owned by an evacuee owner or by a person who has died long ago. There are many properties, which were residential concerns before partition but subsequently there were practically used for commercial purposes for more than 50 years, yet the record of the assessment, does not reflect any change and treat the same as a residential one, irrespective of the use to which the property is being put. In the given circumstances, the entries in the Register of the Excise, Department cannot be of much assistance, nor it can be considered to be the only document, for the purposes of assuming the character of the building, particularly when the witness did not' have any personal knowledge. The application to the Municipal Authorities, 50 years back will not be relevant as the use of the building, and its structural appearance at the time of sale, which took place in the year 1963 will have to be considered.

21. In the presence of substantial documentary and oral evidence, produced by respondents, showing the significant and substantial part of the property being used as shops and a negligible part being used for storing by the tenants in occupation of the shops, coupled with the admission in the evidence of the appellant about the existence of the shops in the building and occupation thereof by the tenant for commercial purposes, will be sufficient to hold that the property was commercial and was covered by the definition of shop.

22. The learned Additional District Judge for cogent reasons and on true. appraisal of the material evidence, concluded that the property being shops, was not subject to pre‑emption and the findings so recorded, do not suffer from any misreading or non‑reading of the evidence or violation of any rule of law.

23. Even otherwise, the custom of pre‑emption was not proved in the area beyond doubt. The copies of some documents, in the suits of recent origins would not justify that the custom existed at the time of commencement of the Act. Even otherwise the custom had to be proved, in the area where the building was located and not with reference to any suit filed in regard to the property located far of the building in‑ issue.

24. For the reasons above, this appeal is devoid any merit which is accordingly dismissed, leaving the parties to bear their own costs. A.A./A‑223/L Appeal dismissed.