1983 PLP 320 (SCMR)

MIAN BURHANUDDIN KHAN, J: Leave is sought by these two petitions to appeal against the single order of the Lahore High Court, Rawalpindi Bench, dated 2‑2‑1982 passed in R. S. A. No. 31 and R. S. A. No. 32 of 1982, filed by Qazi Abdul Ali against judgments and decrees dated 13‑7‑1981 of the learned District Judge, Jhelum.

2. Petitioner filed a suit for possession through pre‑emption on the ground that the property in dispute which was not a shop and was being used as a store and for residential purpose, was wrongly mentioned in the registered sale‑deed as a shop in order to defeat his right of pre‑emption under section 5 of the Punjab Pre‑emption Act, 1913. He based his superior right of pre‑emption on the ground of contiguity to the property in dispute. The suit was contested by the respondent. learned trial Judge dismissed the suit vide judgment and decree dated 26‑3‑1981 holding that the suit property was a shop and no right of pre‑emption could be exercised as such On appeal, the learned District Judge vide his judgment and decree dated 13‑7‑1981 dismissed the suit and affirmed the finding and R. S. A. No. 31/82 filed in the Lahore High Court was also dismissed vide the impugned judgment.

3. Similarly in R. S. A. No. 32/82 the suit for possession through pre‑emption was filed by the petitioner asserting that the premises in dispute was an oven of a bakery and as such, is not a shop and, therefore, the descrip tion of property in the sale‑deed was erroneously given in order to defeat his right of pre‑emption. This suit was also dismissed by the learned trial Court but on appeal the learned District Judge reversed the finding of lower Court and dismissed the suit vide order dated 13‑7‑1981 holding that the suit property is a shop. This judgment was challenged in R. S. A: No. 32/82 before the Lahore High Court but the judgment of the learned District Judge was affirmed vide impugned order.

4. Learned counsel primarily based his argument on section 5 of the Punjab Pre‑emption Act, 1913 and contended that the description of the suit properties in both the appeals could not defeat the right of pre‑emption of the plaintiff petitioner when actually the properties in question were not shops; that the evidence led by the parties and the inspection by the W4i Court (in R. S. A. 32/82) clearly established the fact that it was a residential property and was not a shop; that the Courts below have misread the evidence regarding the nature of the properties in question. (in the impugned judgment the learned High Court Judge has dealt with these contentions in great detail and has referred to most of the relevant case law and we agree with him that each case depends upon its peculiar. circumstances and that the primary object for which a building is used, is to be ascertained. In the instant case it has been held by the Courts below (R. S. A. 31182) that the suit property is a shop and, therefore, the question of right of pre‑emption does not arise. In R. S. A. No. 32/82 it was held by the trial Court that the property was not a shop which. was reversed by the learned District Judge vide his aforementioned judgment and this judgment has been affirmed by the learned High Court in the detailed impugned order. Both the petitions are without any substance and do not call for any interference by this Court. Hence, these petitions are dismissed. Petitions dismissed.