P L D 1973 Supreme Court 394 (PLP)

ANWARUL HAQ, J.‑This appeal, by special leave of the Court, has arisen out of a suit instituted by the respondent, Ghulam Mustafa, to pre‑empt the sale of a property bearing No. 6216, and described as a serai, situate on Cinema Road, outside Kabuli Gate, Peshawar City. The sale was made by the plaintiff's brother, Ghulam Mohyuddin, in favour of the present appellants, namely, Haji Mian Muhammad and his wife, by means of a registered deed on 26‑9‑1958 for Rs. 30,

000. The plaintiff admitted the sale price, which was paid in its entirety before the Sub‑Registrar, but asserted that the pro perty was a residential house and, therefore, subject to pre-emption. The suit was resisted by the vendees mainly on the ground that the property in dispute was a serai and hence exempt from pre‑emption in terms of section 5 of the N.W. F. P. Pre‑emption Act, 1950. It was also asserted that the plaintiff‑respondent was estopped by his conduct from denying that the suit property was a serai, and that in any case he had waived his right of pre‑emption. Several other pleas were also raised, bet they are not relevant for our present purposes. The learned Senior Civil Judge, Peshawar, who tried the suit, found, by his judgment and decree dated the 16th of July 1962, that the plaintiff had superior right of pre‑emption and that he had not waived the same, He, however, dismissed the suit en the ground that the property, although described as a serai had been used primarily as business premises, and as such it came within the definition, of a `shop' and was, therefore, exempt from pre‑emption. The learned trial Judge did not record any finding on the question whether the plaintiff was estopped by his conduct from denying that the property was a serai. In appeal by the plaintiff before a Division Bench of the High Court of West Pakistan at Peshawar, two main contentions were raised, namely :‑ (a) that the finding of the trial Court that the property in suit was a shop was outside the scope of the relevant issue, as framed on the pleadings of the parties and (b) that the property was neither a shop nor a serai in the strict sense of the term and did not, therefore, qualify for exemption from pre‑emption in terms of section 5(a) of the N.W. F. P. Pre‑emption Act, 1950. By their Judgment and decree dated the 13th of May 1969, the learned Judges have accepted both these contentions. They have held that, in view of the provisions contained in rule 2 of Order VIII and rule 1 of Order XIV of the Code of Civil Procedure, it was incumbent upon the defendants to particularize all the points, whether of fact or of law. which they desired to take up in their defence, and they could not be permitted to take up a new defence without affording the other side an opportunity of adducing fresh evidence to meet the same. In the present case, the defendants had pleaded exemption from pre‑emption only on the ground that the property was a serai, and, therefore, they could not sub sequential take up the defence that the property was exempt on account of Its being a shop. On merits, the learned Judges have found, after an elaborate examination of the oral and documentary evidence brought on the record by the parties, that the upper portion of the suit property was used for residence and the lower portion in the shape of a Dalan was used as business premises for raw hides, and that the building was not at all used, at any stage, as a serai for the temporary stay of travellers. They have concluded that in these circumstances the property could not be regarded as a shop, as a shop was primarily a place where `sods were bought and sold and did not include business premises in the general sense of the word, and that it was not a serai as it did not fulfill the essential requirements of such a building, namely, that there should be general access to the interior by the public and it should be used for the temporary accommodation of travellers. On this view of the matter, they have reversed the judgment and decree of the trial Court and have passed a decree for possession of the suit property by pre‑emption in favour of the plaintiff on payment of Rs. 30,

000. Leave to appeal was granted to examine the contentions that the property in suit could be regarded as serai in terms of section 5(a) of the N. W. F. P. Pre‑emption Act, 1950, as it was used as a business place, and that in any cast the High Court should also have examined the question of estoppel against the plaintiff as embodied in issue No. 2 framed by the trial Court. We shall take tap the second contention first. From the narration of facts given above, it will be seen that the; question of estoppel was not agitated in the High Court on behalf of the present appellants. We would, therefore, be justified in presuming that the point must have been given up. The questions is obviously a mixed question of law and fact and depends for Its resolution, on a consideration of a series of facts urged by the appellants in this behalf. In the circumstances, we are not inclined to permit this question to be raised at this late stage. Even otherwise we find that the emphasis of the learned counsel for the appellants is on the fact that in previous litigation between the parties the plaintiff‑respondent himself had described the property as a serai it appears that the property now in dispute is part of ancestral property jointly owned by the three sons of Muhammad Ramzan, namely. Haji Noor Din, Abdul Karim and Ghulam Rasool. The vendor, Ghulam Mohyuddin, and the plaintiff, Ghulam. Mustafa, are the sons of Ghulam Rasool. There was considerable litigation between the various co‑sharers in the property and ultimately the serai in dispute fell to the share of Ghulam Mohyuddin, and the remaining half of the building went to his brother Ghulam Mustafa. It is true that through this litigation the property was described by the parties as a serai, but it is difficult to see how this description of the property would, by itself, bring it within the exemption contained in section 5(a) of the N. W. F. P. Pre‑emption Act, if in fact the property was not a serai at the time of its sale to the appellants. In the previous litigation the nature or the description of the property was not the subject‑matter of dispute, and it was, therefore, Immaterial as to how the property was described for purposes of its Identification. In order that the plaintiff may be estopped from denying the true nature of the property as serai in the present a litigation. it must be shown that he adopted this description knowingly and consciously in the past and not merely because of its popular description as such. From the narration of facts given by the learned counsel for the appellants it is more than amply clear that in the previous litigation the property was being described by the word 'serai' as a matter of routine without there being any controversy as to its true nature and character. We consider, therefore, that in the circumstances no question of estoppel arises against the plaintiff in this behalf. Coming now to the real question in Issue in this appeal, we find that section 5 of the N. W. F. P. Pre‑emption t\et, 1950, prescribes that "

5. No right of pre‑emption shall exist to respect of the sale of, or the foreclosure of, a right to redeem :‑ (a) a shop, serai, katra or club ; (b) a Dharamsala, mosque, church or other similar charitable institutions or buildings The Act does not define the terms used in the two exemption clauses and, therefore, the question is what meaning should be attached to the term 'serai' as used in clause (a) of this section. In the absence of an interpretation clause embodied in the statute itself, the general rule would appear to be, as observed by Lord Esher M. R., in Clerical, etc., Assurance Co. v. Carter ((1889) 22 Q B D 444), that the words are presumed to have been used 9n their popular sense. The same rule was stated by Lord Tenterden in Attorney‑ c General v. Winstanley ((1831) 2 D & Cl. 302), namely, that "the words of an Act of Parliament which are not applied to any particular science or art are to be construed as they are understood in common language. Critical refinements and subtle distinctions are to be avoided, and the obvious and popular moaning of the language should, as a general rule, be followed. Understood in the popular sense, as used to common language, the word 'serai' his always been regarded as meaning a building or premises used for the temporary accommodation of travellers, where the general public has access to the interior. This meaning flows from the etymology of the word which is of Persian origin and in its strictly correct literal form should be called sar‑e‑rah, i.e., on the road‑side. It seems to us that the nearest equivalent in the English language to the word 'serai would be the word 'inn'. In the dictionary called Feroz‑ul‑Lughat, published by Feroze sons Limited, the word 'serai' has been given three meanings, namely, ghar, makan, manzil. It would appear that a 'serai' by its very nature, has to be a residential premises although it is not a house in the accepted sense of the word, meaning thereby a private residence. The word manzil, as indicating a stage in the journey of a traveller, would appear to connote the popular sense of the word 'serai'. As early as 1895, in the case reported as Mst. Nur Jahan v. Aziz‑ud‑Din and others (108 P R 1895), the difference between a tawela and serai was spelt out, and it was clearly indicated that an essential ingredient of a serai is temporary accommodation for travellers. This view was endorsed in Feroz‑ud‑Din v. Rahim Bakhsh (96 P R 1910), in which it was observed that "the mere fact that some of the rooms are rented out to more or less permanent tenants and others to chance‑visitors does not necessarily convert what was originally a tawela into a serai." It was found that the building in suit was not built as a serai and there had not been prolonged and unmistakeable user as such. The judgment does not contain detailed discussion of the ingredients which would constitute a building into a serai, but the observations made by the learned Judges leave no doubt that, in their opinion, a serai was clearly one which catered for temporary accommodation of travellers and it was for this reason that renting out rooms to more or less permanent tenants was regarded as not converting a tawela into a serai. Years later, in Aya Ram and another v. Parshotam Lal and others ((1921) J R 109) and Aya Ram etc. v. Parshotam Lal and others ft was held that the essentials of a serai seem to be that the public have a general access to its interior and that it is used for the temporary accommodation of travellers. Commenting upon the term serai, in his book on the Punjab Pre‑emption Act, 1913, T. P. Ellis writes as under:-- "Plaits defines serai as house, mansion, palace, temporary home for travellers, caravansaray, inn. The common form of a serai is well‑known, consisting as it does of a square of buildings with a main entrance, used for temporary resting for travellers. The term as used in the Punjab generally applies only to buildings fulfilling the secondary meanings given by Platts." It will be seen that the secondary meaning, alluded to by Ellis, is "temporary home for travellers, caravansaray, inn." Elaborating the subject further, the learned Author goes on to say :‑ "The difficult question that will arise is, whether a serai in the meaning of the Act includes such buildings as a club or a European hotel, or what are growing rapidly in numbers in large cities, so‑called native hotels . . . . . . . In the absence of some clear definition it is impossible to lay down any general rule for guidance. Etch case will have to be judged on its merits, and I take it that the criterion will have to be the main existing use to which the building is put and the object with which it was built. If its principal use is for the accommodation temporarily of travellers, the establishment being run on commercial lines, then it will be a serai, and in that view a hotel would fall under the definition." It will be seen that both on authority and in popular usage the term 'serai' has throughout been understood to mean a commercial establishment, used for the temporary accommoda tion of travellers, with public at large having access to its E interior. The learned counsel, appearing for the appellants, was not in a position to refer us to any authority, or standard dictionary in support of his contention that the term 'serai ought to be interpreted as meaning a business premises in general, and not necessarily a commercial establishment providing temporary shelter and accommodation for travellers. It was, however, contend‑d by Sh. Mohammad Shafi that the word 'serai' is so placed in clause (a) of section 5 of the Act, namely, between .a shops and a Katra, that it should be read ejusdem generis with these words and, therefore, carrying the same or similar meaning. He also submitted that the term should be given such an interpretation as would advance the object of the law, which appeared to him to be the grant of exemption from pre‑emption to all commercial and business premises. Taking the last part of the argument first, it is clear that although section 5 of the Act creates certain exemptions, yet the main object of the statute is, to use the words employed in Ankar Alal v. Baij Nath and others (103 P R 1889), "to protect the compactness of village communities, and in towns to respect native feeling as regards caste exclusiveness, the seclusion of private family life and so forth". The same object was described in Khan Bahadur Muhammad AU Khan v. Rai Bahadur Makhan Singh and others (73 I C 855), by saying that "one of the main reasons for the acceptance of a pre‑emptive right is the vital necessity felt try every community, when it first becomes homogeneous, to preseve to Itself its essential homogeneity. To allow landed estate to pass into the hands of strangers Is not only to deprive the community of a valuable asset in which its communal right has not been entirely abandoned, but also to entail the dissolution of its internal organization by the engrafting of strangers upon the common body". This being the object of the law of pre-emption, it could not be advanced by giving wide and general meanings to the exemptions contained in the different clauses of section 5 of the Act. It is well settled that exceptions to the law are to the strictly construed, so that its object is not frustrated. The meaning of the term serai or, for the matter of that, of the other terms used in the different clauses of this section, must therefore, be confined to their ordinary accepted connotations, and not stretched artificially so as to include properties not ordinarily falling within the scope of the terms used by the Legislature. It seems to us that nothing turns upon the fact that the word 'serai' is sandwiched between the words shop and katra in clause (a) of section 5 of the Act. Each of these terms has its own meaning, although it may be conceded that all the three connote some kind of a commercial establishment, each having its own special use or business. However, it is not possible to say the same thing about a club, as its ordinary connotation is that of a non‑profit organization, although commercial organizations like night‑clubs also exist. In these circumstances, the argument that the juxtaposition of the word 'semi' between the words shop and katra has any special significance, is hardly tenable. In the judgment under appeal the learned Judges of the High Court have referred to the definition of the term `serai' occurring in section 2 of the Regulation of Public Semis and Paraus Act (Act XXII of 1867) to the effect that "serai means any building used for the shelter and accommodation of travellers and includes, in any case in which only part of a building is used as a serai, the part so used of such building". Although they have not specifically based their conclusion on this definition, yet the learned counsel appearing for the plaintiff‑respondent submits that this definition also lends support to the interpreta tion placed by the High Court on the term 'serai'. He has also drawn our attention to the definition of the term building given in clause (a) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959. according to which a "building means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a "serai", hotel, hostel or boarding house". It appears to the learned counsel that the exclusion of rooms in a serai or hotel etc. from the definition of the term building, and therefore from the operation of the Rent Restriction Ordinance, shows that in the mind of the Legislature there was a clear distinction between the relation ship of landlord and tenant created in respect of other buildings, and the temporary relationship arising between a traveller and the owner of the serai. It is submitted on behalf of the respondent that there being no definition of the term serai in the Pre‑emption Act itself, it would be legitimate to look at the meanings given to this term in other enactments of a cognate nature like the Act of 1867, already referred to and the Ordinance of 1959. In view of the interpretation we have already placed on the term `serai' as appearing in the relevant clause of section 5 of the Act, it is hardly necessary to dilate upon its meaning with reference to the definitions as appearing in other statutes. However, as this particular matter was also argued at some length by the learned counsel for the appellants, it is necessary to state that the role applicable in such cases, as enunicated by Craies on Statute Law at pp. 132‑133, is that in each case it is necessary to ascertain "as to what assistance may be derived, firstly, from statutes which are in pari materia with the statute under consideration; and secondly, from earlier statues not precisely in pari materia, but in some way relating to or affecting the same subject‑matter". While dealing with a similar question, this Court has laid down in Abdul Bari v. West Pakistan Soil Reclamation Board (P L D 1966 S C 451), that ..‑ "Where certain words have been given a statutory definition in one statute and the same words are used In a similar connection in a later statute, it may be presumed that the same meaning attaches to the said words.". In that case the Court was dealing with the question of the meaning to be attached to certain words appearing in the Punjab Soil Reclamation Act, 1952, and assistance was sought to be derived from the meaning given to these words in the earlier statute entitled the Canal and Drainage Act, 1873. Keeping these principles in view, it appears to us that although the objects underlying the three enactments under consideration, namely, the Regulation of Public Serais and Paraus Act, 1867, N: W. F. P. Pre‑emption Act, 1950, and the West Pakistan Urban Rent Restriction Ordinance, 1959, are different from each other, yet they do seek to regulate, inter alia, certain matters connected with Serais, and to that extent it would be permissible to seek assistance from the earlier and the subsequent statutes for the purpose of ascertaining the meaning to be given to the term 'serai' as used in the Pre‑emption Act. It is significant that the meanings appearing from these two enactments are in line with the interpretation placed on this term by the judicial authorities to which we have already referred. Before we conclude, we may mention a point raised by the learned counsel for the respondent that, in the absence of any compelling reason to the contrary, we ought to maintain the interpretation which has been consistently given by judicial authorities to the term `serai, as any variation at this stage would have the effect of unsettling valuable property rights which have accrued to various parties under the law of pre‑emption in respect of buildings which tall within or outside the popular meaning of the term `serai'. We consider that there is substance in this submission, as the doctrine of stare decisis does, apply to a matter of this kind, when judicial authorities, at least from 1895 onwards, have consistently given a particular meaning to the term `serai' as appearing in H the exemption clause of the Pre‑emption Act, and that meaning is not opposed to any general principle of law. The learned counsel for the appellants drew our attention to the observations, appearing in M. A. Chowdhury v. Mitsui O. S. K. Lines Ltd. (P L D 1970 S C 373), to the effect that :‑ "The mere fact that some Courts of the country have for a few years, adapted a particular interpretation of a legal provi sion, is, by no means, a sufficient reason for maintaining that interpretation if it is clearly opposed to some general principles. The principle of stare decisis is not applicable to a case where only some of the Courts, in a country have taken a particular view and that too for a comparatively short period." It will be seen that these observations do not apply in the instant case. The position which, therefore, emerges is that the term `serai' as used in clause (a) of section 5 of the N. W. F. P. Pre‑emption Act, 1950, has to be given its popular and accepted meaning, namely, a commercial establishment used for the temporary comfort and accommodation of travellers, to the interior of which the general public has free access. The meaning of the term cannot be artificially stretched so as to include a business premises in general, much less a place where the business of raw hides has been carried on for years. As laid down in Mawasi and others v. Maya Ram and others (31 P R 1901), Mahant Kirpa Singh v. Maya Pam and others (22 P R 1911), jiwan bhuta and others (26 P R 1912), Hannu Mat v. Atma Ram (27 I C 799) and Jhabban Lal and another v. Muhammad Umar and another (951 C 675) the relevant point of time for determining the true nature and character of the property in dispute is the time of its sale, as the cause of action in a pre‑emption suit arises on that date. In the case of a building used for more than one purpose, the main and primary purpose will have to be looked at, (see Sant Singh v. Gobind Ram and another (A I R 1923 Lab. 209). Just as the Court is not bound to accept the ostensible description of the nature of the transaction, similarly it is not bound to accept the description given to the property by the parties to the sale. Now, in the present case, the factual position, as found by the Courts below, is that although the property in dispute has been nominally described as a serai, yet the primary purpose for which it has been unmistakably used over a long Period of years has been the business of raw hides. It has never been registered or used as a serai in the sense in which we have interpreted this term in the preceding paragraphs. Such being the case, its sale was not exempt from pre‑emption in terms of clause (a) of section 5 of the Act. The appeal accordingly fails and is hereby dismissed with costs. K.B.A. Appeal dismissed.