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R. S. A. No. 522 of 1964, decided on 13th November 1964.
S. 3 Property sold, principally a house but comprising insignificant portion used as shop-Whole house, including small portion used as shop, held, pre-emptible.
Aya Ram v. Parshotam Lal 711 C 145 rel.
Sh. Allah Bakhsh for Appellant.
Abdur Rashid for Respondent No. 1.
Others served absent ex parte.
Date of hearing: 13th November 1964.
Mst. Amir Jan, widow, Gul Muhammad and Abdul Hakim, sons, and Sardar Begum, daughter of Muhammad Salim, of Peshawar City, owned House bearing No. 1190, situated in Mohallah Mawatian, Guzar Ganj, Peshawar City. Gul Muhammad and Abdul Hakim mortgaged this house, excluding a shop underneath, by a registered mortgage deed, dated the 31st of May 1951, (copy Exh. D. W. 1/2). Mst. Sardar Begum, their sister, by five unregistered mortgage deeds, dated the 27th of March 1952, (copies Exhs. D. W. 1/3 to D. W. 1/7) mortgaged a shop No. 1192, under her own house. Mst. Amir Jan, widow, Gul Muhammad and Abdul Hakim, sons, and Mst. Sardar Begum, daughter of Muhammad Salim, agreed to sell this house to Haji Muhammad Naim on the 31st of October 1953, (vide agreement copy Exh. D. W. 1/10). They executed the sale deed dated the 15th of February 1954, (copy Exh. D. W. 7/1), registered on the 20th of February 1954, by which they had ostensibly sold the house for Rs. 1,900 including the mortgage amount. The vendee redeemed the previous mortgage both from Gul Muhammad, Abdul Hakim, and Sardar Begum, by redemption deed, dated the 15th of February 1954, (copy Exhs. D. W. 1/1 and D. W. 8/1).
2. Mst. Amtur Rasul pre-empted the sale on the ground of contiguity. The vendee Haji Muhammad Naim resisted the suit inter alia on the ground of the suit being bad for partial pre-emption, as the house along with a shop, was sold and the sale was only pre-empted with respect to the house. He also denied the allegation of the plaintiff that the house was sold for Rs. 700 and an inflated price of Rs. 1,900 was entered in the sale deed, with a view to flout the pre-emption. The previous mortgage deeds were also assailed as being bogus and fictitious. The Civil Judge, who tried the suit, put the parties to the following issues:-
(1) Whether the plaintiff has the requisite superior right of pre-emption
(2) Whether the mortgage in favour of defendant No. 6 is fictitious and for the benefit of defendant -No. 5 vendee
(3) Whether Rs. 1,900 (including the mortgage were fixed in good faith or paid
(4) Market-value.
(5) Relief.
3. Mr. Abdur Rahman kaif, Civil Judge, Peshawar, passed a decree in Suit No. 33/1 on the 25th of January 1956, on payment of Rs. 1,900 as pre-emption money. In Appeal No. 20 of 1956, Mr. Amirzada Khan, the then Additional District Judge, Peshawar, remanded the case, directing that the suit be re-tried after recasting the issues in accordance with the pleading of the parties. After the remand, the trial Judge framed the following additional issues:
(1) Whether the suit is bad for partial pre-emption
(2) Whether the major portion of the suit house is a shop and hence exempt from pre-emption
(3) Whether defendant No. 5 has made any improvement on the suit house, if so, how much and whether he is entitled to any compensation on this count
4. Mr. Muhammad Akhtar Khan, by his judgment, dated the 6th of April 1959, found that the suit was not bad 'for partial pre-emption, that the suit property was a house, and therefore, was pre-emptible, and although some improvements were effected, but they were effected before the expiry of the period of limitation for pre-emption, and therefore, the vendee was not entitled to their compensation. He, therefore, decreed the suit for possession by pre-emption on payment of Rs. 1,900. Appeal No. 70 of 1959 was preferred in the Court of the District Judge, Peshawar, and Mr. Mahammad Shafiq Khan, Additional District Judge, confirmed the findings of the learned trial Judge, and dismissed the appeal on the 29th of June 1959. The said vendee had come up to this Court in second civil appeal.
5. Mr. Sheikh Allah Bakhsh, counsel for the appellant, assailed the findings of the trial Court on the following two points:-
(1) The property in dispute consists of residential portion in part and a shop in part, and the suit about the shop should have been dismissed by virtue of section 5 of the Pre-emption Act.
(2) The compensation for improvements was erroneously disallowed.
-The two Courts below found that the property in dispute is a house, and not a shop, and therefore, it is pre-emptible. Counsel contended that this finding is vitiated as the Courts below had not appreciated the documentary evidence produced on the record that a part of the property was a shop and the remaining part was house. In this connection, he has referred to the above-mentioned mortgage and the redemption deeds. In the mortgage deeds executed by Mst. Sardar Begum, she had mortgaged a Shop No. 1192 under her house. In the mortgage deed executed by her two brothers referred to above the house was mortgaged, excluding the shop underneath. By the sale deed, which is the subject-matter of this pre-emption, only the House No. 1190, as bounded by the boundaries, clearly given in the sale deed, was sold. In this sale deed, there is no mention of the shop. It is, therefore, very difficult to decide whether the house had a shop on the ground-floor or not. The mortgage deeds executed by Mst. Sardar Begum show that she mortgaged a shop under her own house. The house in question being not her exclusive property cannot be considered to be her house. Shop No. 1192, which was mortgaged, being part of the aforesaid house, cannot be considered to be a part of the house in question. The existence of the shop on a part of the ground floor of the house is borne out by the mortgage deed executed by Gul Muhammad and Abdul Hakim, and also by the redemption deed. It is, therefore clear that the insignificant part of the house on the ground-floor was being used as a shop. This shop, therefore, is not an independent property, but is an insignificant part of the house in dispute, which a property of considerable dimensions. The question for decision is if in such circumstances, the part, which was being used as a shop, of the residential house, is exempt from pre emption under section 5 of the Pre-emption Act, or by virtue of the shop the whole house becomes non-pre-emptible. The first question was decided by Mr. Pipan, J. C. in First Civil Appeal No. 186 of 1921 decided on the 2nd of June, 1922, Aya Ram v. Parshotam Lal (71 I C 145). He decided this point in the following words:-
"Where the shop is an insignificant portion of the whole building and of an inconspicuous description, and its use as a shop is not a permanent feature of the building, the property is, for purposes of pre-emption, indivisible and must follow its main characteristics as residential premises, and the whole including the small shop, is pre-emptible."
This decision was given under the old Pre-emption Act, the language of which was the same which has been embodied in section 5 of the North-West Frontier Province Act, 1950. Tome this view appears to be quite logical and sound one. The property sold is principally a house, but an insignificant part of its ground floor was being used as a shop. The property is situated in a' residential Muhallah, and not in any commercial centre. The A word "shop" used in section 5 of the Pre-emption Act show that the property, which is shop in its entirety, and not a part of a pre-emptible property, would be exempt from pre emption.
6. Counsel failed to cite any authority to the contrary to show that if a shop is an insignificant part of a residential building, it is exempt from pre-emption, or that the whole property becomes non-pre-emptible. He had, however, urged that by Notification No. 1751, Taxn., dated 22nd November 1950, given on page 88 of the N.-W. F. P. Acts and Notifications, reported in P. L. D. 1951, Acts, Ordinances and Notifications etc., the N.-W. F. P. Government, under section 21, subsection (1) of the Supplementary Finance Act, 1950, had defined the word "shop" in the following words:-
2. Shop' means any premises not being premises intended to, be in the nature of a temporary structure, where the trade Or business of selling goods by retail or wholesale or both is carried on by the owner or occupier, or where services are rendered by the owner or occupier to customers, and includes offices, show-rooms, godowns or warehouses, wherever situated used in connection with the said trade or business.
Counsel contended that in this definition, the locality, where the shop is situated, or its being part of a residential building, is not provided with a view to determine whether a particular property is a shop or not. This notification is irrelevant for the present purposes as it was promulgated under another Act which has got no bearing on the Pre-emption Act. Moreover a Notification made by a Government on a Specific Act cannot be considered to be a part of statute under another Act. This notification, in my view, therefore, does not make any difference with respect to the definition of the word "shop", used in section 5 of the Pre-emption Act. I, therefore, find that both the Courts below had concurrently found that the property in dispute is house and an insignificant part of it, was being used as a shop, cannot be considered as a shop, for the purposes of section 5 of the Act.
7., Point No. 2.-Counsel conceded that the question of improvements is one of fact, and the decision of the first appellate Court on such a question, is final in law. This question, therefore, needs no further discussion.
8. For the reasons given above, this second civil appeal fails; and is dismissed with costs.
K. B. A. Appeal dismissed.
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