P L D 1969 Peshawar 241 (PLP)

In cross‑examination he stated :‑ "It is correct that the disputed property was described as a Serai in the suit instituted by Abdur Rauf in 1949 because it was always known as Serai ..I am doing the hides business now‑a‑days in the lower portion of the disputed property. I purchase raw hides and sell them." Haji Mian Muhammad (D. W. 1), defendant No. 1, stated :‑ "I and my wife defendant No. 2 purchased a Serai No. 6216 situate outside Kabuli Gate, Peshawar from Ghulam Mohy‑ud din by sale‑deed dated 25‑9‑58 and registered on 26‑9‑58 for a sum of Rs. 30,000. . . . The disputed property is a Serai. Previously the grandfather of the plaintiff and then his father used to carry on hides business in this Serai under the caption "Muhammad Ramzan‑Abdul Karim". After the death of their father this Serai was used by his son for hide business. Even now the same business is being done in the Serai which has fallen to the share of the plaintiff. The disputed Serai is in my possession and I am using it as a store. The disputed Serai has never been used as a residence." In, cross‑examination he stated :‑ "The plaintiff lives in a small portion of the top of the Serai which has fallen to his share in partition. The share of the plaintiff which was allotted to him in partition adjoins the disputed Serai The cousins of the plaintiff live in another Serai. During the absence of Ghulam Mohyuddin defendant from Peshawar his share of the Serai was lying vacant. The disputed Serai is not a plue where travellers come and sit. It is used as business premises. I dumped my hotel belonging in the disputed Serai. " Dost Muhammad Muhallahdar of the Muhallah (D. W. 5) stated :‑ "The disputed property is a Serai. Formerly it was one Serai and was subsequently partitioned by the plaintiff and his brother Ghulam Mohyuddin, in equal shares. A partition wail was constructed to divide the two portions. I had seen the father of the plaintiff and defendant No. 1 carrying on hide business in the Serai. After his death his son used to carry on the same business in the, Serai. Adjacent to the disputed Serai lies the Serai belonging to the first cousin of the plaintiff. They also carry on hide business in that Serai. There arc other Serais also in the vicinity of the disputed Serai wherein hide business is done . . . . . . 'There is, however, a house towards the back of the Serai which has fallen to the share of the plaintiff which i5 inhabited by the plaintiff." In cross‑examination he stated :‑ "The plaintiff lives in a portion in the Serai which has fallen to his share. He lives in it since my memory. Formerly, his father used to live in it. No travellers stay in the Serai. It is called Serai because hide business has been carried in it." Haji Soofi Karam Llahi (D. W. 6) stated in cross-examination ; "It is not a Serai where travellers stay. Muhammad Ashraf (D. W. 7) deposed "I have been seeing the disputed property since my memory and have always found it to be used as a place for hide business." In cross‑examination he stated : "This Serai is not used for the travellers as a living place. It is called a Serai because hide business is run therein. Ghulam Mustafa lives in a room towards the back of the Serai which has fallen to his share in partition.

7. During the course of the proceedings, Muhammad Ali, a Pleader, was appointed as a Commissioner for local investiga tion for the purpose of elucidating the matter in dispute. The Commissioner was directed to visit the suit property and to ascertain whether its frontal portion is used for hides business that is it is used as a store anal shop. He was also directed to find cut of the building is not a Serai and is used as business premises or for residential purposes. The Commissioner was also directed to find out the locality of the building. The Commissioner submitted his report dated 29‑1‑

62. He reported that "Makhan Mutadawia" is situate on the Cinema Road, in between Tasvir Mahal and Novelty Cinemas the door of the building opens to the north to the road side. Towards the west of this building is situate a similar "Makan", which is used for hides business and the upper portion is used for residence. The upper southern portion of "Makan Mutadawia" is used by the plaintiff for residence. In the lower portion of "Makan Mutadawia" raw hides business is carried on, and the upper portion is used for residence. The disputed property is in bazar locality. It is not a Serai. In the upper portion three sides: of it are used for drying bides and the southern portion is used for‑residence. In "Makan‑Mutadawia" there are no Kothas for temporary residence. The lower portion is a dalan and raw hides business is carried on thereunder the provisions of Order? XXVI, rule 12, sub‑rule (2), C. P. C. this report is to be used‑as evidence in the suit.

8. From this oral and documentary evidence we conclude that‑the upper portion of the suit property is used for residence and the lower portion in the shape of dalan is used as business premises for raw hides, and that this building is not used as a serai for stay of travellers. The learned Senior Civil Judge has also concluded that the suit property described as a serai is not a Serai where travellers stay. The learned Senior Civil Judge has also observed In the entire lower storey and in three‑fourth of the upper storey the building is used for the purpose of business of raw hides; the business being actually carried on in the lower storey. In the one‑fourth of the upper storey plaintiff is living. Previously it appears that both the parties i.e. the plaintiff and the vendor and before them their deceased father were living in the upper storey and on account of some partition, the residential portion of the upper storey in possession of plaintiff, appears to have fallen to the share of the plaintiff." 9: It is amply clear that issue No. 1 "is the suit property a Serai, hence exempt from pre‑emption", was framed on the averments of the contesting defendants 2 and 3 in their written statement. The parties have led evidence on this issue, and the learned Senior Civil Judge has concluded that it is not a Serai where travellers stay. Nowhere in the oral or documentary evidence the building has been described as a shop.

10. The learned counsel for the vendees had contended before the learned Senior Civil Judge that serais are of three kinds (1) Used for commercial purposes, (2) for travellers, and (3) for hotels. He argued that the Serai in suit is of the first kind. The learned counsel for the vendees had quoted some authorities before the learned Senior Civil. Judge, who observed:‑ "Whether this definition of the Serai is justifiable and that the Serai mentioned in section 5 is the one meant for the stay of travellers alone as defined in the Serais Act of 1867, I am of opinion that it has been used primarily as business premises and as such it comes within the definition of a shop and, therefore, is exempt froth pre‑emption."

11. As said above, .the learned counsel for the appellant has forcefully argued that this finding of the learned Senior Civil Judge is beyond the scope and import of issue No. 1 and legally it is not maintainable. Learned counsel for the appellant referred to Order VIII, rule 2, and Order XIV, rule 1, C. P. C. The two Rules lay as under:‑ Order VIII, rule 2: The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite‑party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or' facts showing the illegality". Order XIV, rule 1.‑(1) Issues arise when a material pro position of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) . (4) . (5) At the first hearing of the suit the Court shall; after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at‑variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend." In the State of Bihar v. Ram Ballabh Das Jalan and another (A. I R 1960 Pat. 400) it has been ruled:‑ "If a new point is sought to be raised, the decision of which depends upon facts with regard to which parties had no opportunity to place materials on the record in support of their respective contentions, that cannot be permitted to be raised at a late stage in the suit, unless a fresh opportunity is given to the party against whom the point is raised, to meet the same by placing on record materials relevant to the decision on the point ...... .. Where in a suit on contract, the defendant raises a plea of account stated or of novation or alteration of contract for the first time after the plaintiff closed its case, the proper procedure in such a case would be if, the trial Court felt inclined to permit the defendant to raise that plea, to require the defendant to amend his written statement; frame an issue on the point and allow the parties to adduce further evidence if any, in support of their respective case on that point. Where that is not dune, the trial Court cannot take into consideration the near point raised by the defendant, and his decision on that point, therefore, cannot be allowed to stand." In Bengal Insurance and Real Property Co. Ltd., Calcutta and Ian another v. Velayammal (A I R 1937 Mad. 571), it was observed In a suit for the recovery of money under ail insurance policy, the defendant did not plead in defence that S. 6, Married Women's Property Act, was a bar to the suit. The plaintiff's pleader accidentally argued the question of applicability of the said section to the suit: Held, that the defendant could not have the benefit of the defence which he did not plead. In Bibi Rehana Khatun v. Iqtidar Uddin Hassan (A I R 1943 All. 184) it was held There should be no finding by the Judge on a point which was not a point at issue. In Jhanda Mal and another v: Gopal Das and others (A I R 1925 Lah. 571), it was observed :‑ "Defendants claimed ownership of the house in dispute as donees from the last male holder or by adverse possession by themselves: Held, that they cannot be allowed, subsequently to turn round and claim that they had derived title through a female, and her adverse possession should be tacked on to their adverse possession." In Jasraj Faoji v. Alt. Sugrabai (A I R 1943 Sind 242) it was held:‑-- "Issues should be raised before evidence and before arguments. It is on the issues based on the pleadings that the evidence is led and arguments directed." In Hnji Gafar‑Haji Habib Toms v. Khatvnjr Wakil Ahmad (P L D 1959 Kar. 611), it was held:‑ Important facts forming the basis of a party's case should not be allowed to be brought on record in the course of evidence unless the pleadings are amended and necessary issues framed, for otherwise, the course of trial would become discursive, there would be surprises and decisions would become perfunctory. In Saiyed Ali Amir v. Messrs Cement Ltd. (P L D 1961 Kar.253), it was held that if a plea is not wised raised in the plaint evidence tin such plea cannot be looked into.

12. From the provisions of Order, XIV, rule 2 and Order XIV, rule 1, C. P. C., coupled with the authorities quoted above, we infer that it is obligatory on the defendant to particularize in his defence all points, either of fact or of law, which he desires to take up. A new point, the decision on which depends upon fact with regard to which the parties had no opportunity to place materials on the record in support of their respective contentions, cannot be permitted to be raised at a late stage in the suit unless a fresh opportunity is given to the party against whom the point is raised, to meet the same by placing on the record materials relevant to the decision on the point. Therefore, if a new point is to be allowed to be raised, the Court should require the defendant to amend his written statement, frame an issue on the point, and allow the parties to adduce further evidence, if any, in support of their respective cases on that point. Where this is not done, the trial Court cannot take into consideration the new point raised by the defendant and his decision on that point, therefore, cannot be allowed to stand. If the point is not raised at all in the written statement, the Court cannot act on it. The defendant must state all grounds of defence in the written state ment. No new plea can be raised for the first time in arguments. Once issues have been framed, it is the duty of the Court to determine them as they are. The Court cannot decide a suit on a matter on which no issue has been raised. In the present case the defendant had not taken any plea that the suit property is a shop and as such no issue was framed as to whether the suit property is a shop and hence exempt from pre‑emption. The parties had not led evidence on the point that the suit property is a shop. The learned Senior Civil Judge, therefore, in law, could not turn round and decide that the suit property was a shop and, therefore, exempt from pre‑emption under section 5(a) of the North‑West Frontier Province Pre‑emption Act.

13. Even otherwise, the finding of the learned Senior Civil Judge that the suit property has been used primarily as business premises and as such it comes within the definition of a shop is erroneous. In Sandhi v. Khair‑ud‑Din and others (A I R 1927 Lah. 328) it was held :

A shop is primarily a place where goods are bought and sold and does not include `business premises' in the general sense of the word . . . . . . . . . . In Haji Muhammad Naim v. Mst. Umatur Rasul and others (P L D 1965 Pesh. 57) it was held that if the property sold is principally a house but it comprises insignificant portion used as a shop, the whole house, including the small portion used as shop, will be pre -emptible and is not exempt under section 5 of the North‑West Frontier Province Pre‑emption Act. In deciding whether a particular building is to be considered as a house, a shop or a serai for purposes of pre‑emption, the primary use to which the building is put at the time of the sale, has mainly to be considered. As given above, the sale deed is captioned "Bainama Sakni", and the vendor has been shown residing in the suit property, though it is called a serai. The defendants have accepted this description of the property by the sale deed. As such the property has been sold principally as a house. The mere fact that a portion of it is used by the owner for business premises will not convert it into a shop or a serai in the strict sense to claim exemption from pre‑emption. The learned Senior Civil Judge has also concluded that the suit, property though described as a serai is not a serai where the travellers stay. In Aya Ram and another v. Parshotain Lal and others 108 Judicial Records of the N. W.‑F. P. it was held (a) A building is not a serai unless there has been unmis takable use of it as such. The fact that some of the rooms are rented out to different persons for extended period does not necessarily convert it into a sera!. The essentials of a serai are that there is general access to the interior by the public and that it is used for the temporary accommodation of travellers. (b) (1). A single building follows the main characteristics of the whole. If the principal use of the building is residential, the whole will be pre‑emptible notwithstanding that a small portion has been used as a shop, and vice versa."

14. The upshot of the above discussion is that the suit property has been sold principally as a house for residential purposes and hence pre‑emptible. It can neither be defined as a "shop" nor can it be termed as a "sera!" to claim exemption from pre‑emption under section 5 (a) of the North‑West Frontier Province Pre‑emption Act. In this view of the case, we decline to maintain the judgment and decree of the learned Senior Civil Judge, and while accepting the appeal, we pass a decree for possession of the suit property, by pre‑emption in favour of the plaintiff appellant on payment of Rs. 30,

000. As legal questions were involved, the parties are to bear their own costs. A. E./K. B. A. Appeal accepted.