P L D 1964 (W (PLP)

2 The facts giving rise to this further appeal briefly are that Sikandar Shah and his brother Mustaqim Shah, sons of Kasir Gul, originally residents of Ziarat Kaka Sahib, purchased one kanal ten marlas of land out of 15 kanals 18 marlas, comprised in Khasra No. 2759/545, situated in the limits of village Akora Kbattak, Tehsil Nowshera, from one Mst. Zuhra Begum for the purpose of constructing a residential house, on the basis of a sale‑deed dated 17‑3‑58, registered on 20‑3‑58, for the ostensible sum of Rs. 1,700.

3. Mst. Bibi Fatima plaintiff claiming to be a co‑sharer in the land brought a suit to pre‑empt the sale. The vendees resisted the suit on the pleadings inter alia that the plaintiff had no preferential right of pre‑emption, that she had waived her right of pre‑emption, that the sale was exempt from pre‑emption, and that they had spent Rs. 8,500 on levelling the ground and con structing the house. The following issues were settled in the suit (1) Whether plaintiff has got superior right of pre‑emption? (2) If issue No. 1 is proved, whether plaintiff has waived her right of pre‑emption? (3) Whether the land in suit has been purchased for con struction of their house and as such is not pre‑emptible? (4) Whether the defendants have made any improvements in the suit‑land, if so, of what value and with what effect? (5) Relief.

4. The learned trial Court held that the plaintiff had superior right of pre‑emption, that she had not waived her right of pre‑emption, that Sikandar Shah was not entitled to the benefit of section 5 of the Pre‑emption Act, in that he owned a house in village Akora Khattak, measuring more than two kanals and Mustaqim Shah could not avail himself of the benefit of section 5, in that be was residing temporarily in village Akora Khattak and was a permanent resident of Ziarat Kaka Sahib. The learned trial Court also found against the vendees on the question of improvements, on the ground that they had been informed by the pre‑emptor of her intention to institute a pre -emption suit and not to carry out any construction but they had not taken any notice of it. In the result, the plaintiff was granted a decree for possession by pre‑emption on payment of Rs. 1,700.

5. The vendees went up in appeal, and Khan Sher Bahadur Khan, Additional District Judge, Peshawar by his judgment dated 12th May 1961 modified the judgment and decree of the trial Court and partially accepted the appeal by allowing the sum of Rs. 1,029 (1) for the expenses incurred by the vendees for filling the land and (2) the sum of Rs. 500 for sinking of the well. The vendees feeling aggrieved have come up on further appeal.

6. Mr. Pir Bakhsh Khan, learned counsel for the appellants, made two submissions: (1) That the learned Courts below had erred in holding that Mustaqim Shah was not entitled to the benefit of section 5 of the Pre‑emption Act. He, however, did not press the case of Sikandar Shah in view of the conclusive evidence that he already owned a house situate contiguous to the suit‑land measuring more than two kanals. It was argued that the term "resident" had not been defined in the Pre‑emption Act and therefore, we have to accept the ordinary dictionary meaning of that word. He argued that Mustaqim Shah was residing with his brother Sikandar Shah for the last 6/7 years, and as such he was a "resident" within the meaning of section 5. (2) The other point raised by him was that the learned Courts below had erred in disallowing the vendees the amount expended on the construction of the house.

7. Khan Abdul Latif Khan, on the other hand, argued that the word "residence" means permanent residence and did not mean temporary residence, and that admittedly the appellants were originally residents of Ziarat Kaka Sahib, so much so that ire the very sale deed they had described themselves as residents of Ziarat Kaka Sahib, now at present Akora Khattak, and that the burden of proof lay on Mustaqim Shah to show that he had acquired permanent residence at Akora Khattak, and that he had failed to make out the same, in that he came to reside in village Akora Khattak after the present sale and that too temporarily with his brother.

8. As regards the question of cost for construction he argued that the appellants had been lucky enough to persuade the learned Appellate Court in allowing them costs incurred by them on levell ing of land and sinking of the well, in that they were not entitled to get the same, as the plaintiff had sent jirga to the vendees and also sent a Registered Acknowledgment Due Notice telling them not to carry out improvements as she intended to file a pre -emption suit.

9. As regards the question whether Mustaqim Shah entitled to the benefit of section 5 of the Pre‑emption Act, till, question hinges on true interpretation of the word "resident". As already indicated, this word has not been defined in the Pre-emption Act. The term "residence" is naturally a flexible on and the question arises whether the term should receive a largo or more restricted meaning. it is well settled proposition of law that if a particular word is not defined then the Court should try to find the intention of the Legislature in framing the particular provision in which the word is used. Applying this test, I am of the view that the word "residence" does not mean residence for a particular period but would mean in case of a person who has original place of residence an intention to abandon that place of residence and live at another place at least for the time being for some time to come. It is also well established principle of law that every person is deemed, in law, to have a dwelling or place of residence, and where he has none, he will be deemed to dwell at the place at which he may be actually staying at the time. If any authority is needed in support of this view reference may be made to the decision in Farnandez v. Wray (I L R 25 Bom. 176). As already indicated, Mustaqim Shah admittedly is originally resident of Ziarat Kaka Sahib and as such in his case to become a "resident" of village Akora Khattak he must prove by cogent evidence that he had abandoned his original residence and intended to make Akora Khattak as his residence for the time being at least. Judged in the light of this test Mustaqim Shah has not been able to show that he had permanently abandoned his native village Ziarat Kaka Sahib and at the time of purchasing the suit‑land had taken residence at Akora Khattak with the intention to settle there. The evidence led by him on this point falls short of the standard required to prove that he had been living in Akora Khattak prior to the purchase of the suit land along with his brother Sikandar Shah. Mustaqim Shah did not lead any convincing evidence that he had been living at Akora Khattak prior to the occurrence, As a result of the above discussion I hold that Mustaqim Shah is not a "resident" within the meaning of section 5 of the Pre‑emption Act.

10. As regards the cost of improvements, there is finding of the Courts below that the appellants had been told not to make construction as the plaintiff intended to pre‑empt the suit‑land and a Registered A. D. Notice too was sent which was note accepted by them. This being the position, they were not entitled, in law, to get any compensation whatsoever even for the costs incurred by the vendees for levelling of the land and sinking of the well, but since the respondent has not filed any appeal or cross‑objections, the order of the appellate Court directing payment of costs for these items cannot be set aside. In the result, the appeal fails and is dismissed with costs to the respondent. K. B. A. Appeal dismissed.