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Regular Further Appeal No. 21 of 1962, decided on 13th May 1969.
, O. VIII, r. 2. & O.XIV, r. 1‑Parties bound to particularize all points, either of fact or of law in their pleadings‑New point cannot be raised acid considered unless fresh opportunity given to opposite party to meet it by placing on record materials relevant to decision on such point‑Court to determine issues as framed‑Cannot decide suit on which no issue framed‑N.‑W. F. P. Pre‑emption Act (XIV of 1950), S. 5(a).
From the provisions of Order VIII, rule 2 and Order XIV, rule 1, C. P. C. 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 facts with regard to which the parties no opportunity to, place materials on the record in support of their respective con tentions, 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 statement. No new plea can be raised for the first lime in argu ment. 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.
Where, therefore, in a suit for pre‑emption under the N.‑W. F. P. Pre‑emption Act, 1950, the vendee‑defendant claimed exemption from pre‑emption under section 5 (a) of the Act on the ground that the property in question was sera and the issue framed by the Court was "is the property a serai " but the Court while giving decision on the issue held that the property though not a serai was used "primarily as a business premises and as such fell within definition of a shop and therefore exempt from pre emption", it was held that the decision of the trial Court was beyond scope and import of issue as framed and therefore not maintainable.
State of Bihar v. Ram Ballabh Das Jalan and another A I R 1960 Pat. 400; Bengal Insurance and Real Property Co. Ltd., Calcutta and another v. Velayammal A I R 1937 Mad. 571 Bibi Rehana Khatun v. Iqtidar Uddin Hassan A I R 1943 All. 184; Jhanda Mal and another v. Copal Das and others A I R 1925 Lah. 571; Jasraj Faoji v. Mst. Sugrabai A I R 1943 Sind 242; Haji Gafar‑Haji Habib Janu v. Khawaja Vakil Ahmad P L D 1959 Kar. 611 and Saiyed Ali Amir v. Messrs Dalmia Cement Ltd. P L D 1961 Kar. 255 rel.
, S. S (a) ‑Whether a particular building is shop, serai or house‑Main consi deration‑Primary use to which building put at time of sale‑Pro perty described as "Sakni" in sale deed‑Vendor residing therein at time of sale‑Mere fact that a portion of it was used by owner as business premises‑Cannot convert such property into shop or serai.
Sandhi v. Khair‑ud‑Din and others A I R 1927 Lah. 328; Haji Muhammad Naim v. Mst. Umatur Rasul and others P L D 1965 Pech. 57 and Aya Ram and another v. Parshotam Lai and others 108 Judicial Records of the N.‑W. F. P. rel.
Muhammad, Afzal Bangash for Appellant.
Peer Bakhsh Khan assisted by A. M. Qureshi for Respondents.
Dates of hearing: 6th and 7th May 1969.
‑By a sale‑deed, executed on 25‑9‑58, and registered on 26‑9‑58 (copy Exh. P. W. 7/1), Ghulam Mohyuddin sold seraiabad No. 6216, situated on the Cinema Road, outside Kabuli Gate, Peshawar City, to Haji Mian Muhammad and his wife Mst. Fatima Bibi for Rs. 30,000. The entire sale consideration was paid before the Sub‑Registrar to the vendor. On 24‑9‑59, Ghulam Mustafa, a brother of the vendor, instituted a suit for pre‑emption of this property. The plaintiff pre‑emptor admitted the sale consideration of Rs. 30,000 to be correct. In the plaint Ghulam Mustafa plaintiff described the suit property as a house. The defendant‑vendees contested the suit on various pleas. The pleadings of the parties are reflected in the following issues :‑
(1) Is the property a Serai, hence exempt from pre‑emption
(2) Is the plaintiff estopped by his conduct from denying that the suit property is a Serai
(3) Is the suit bad for partial pre‑emption
(4) Is the suit within time
(5) Whether the plaintiff has waived his right of pre emption
(6) Whether the plaintiff has superior right of pre‑emption as against the vendees
(7) Whether the vendees are entitled to any expenditure they have incurred for purchasing stamp paper and costs of registration and writing of the suit sale‑deed and to how much
(8) Relief.
2. The case was tried by the Senior Civil Judge, Peshawar. The learned Senior Civil Judge by his judgment and decree dated 16‑7‑62 gave finding on issue No. 1 :‑
"I am of opinion that it (Sera ) has been used primarily as business premises and as such it comes within the definition of a shop and therefore, is exempt from pre‑emption. The issue is found in favour of the vendees‑defendants."
In view of the finding on issue No. 1, it was considered un necessary to dilate on issue No. 2. Issues 3 and 4 were not pressed and hence found in favour of the plaintiff. The plea of waiver was found to be unsustainable and as such this issue was found against the vendee‑defendants. The plaintiff was found to be entitled to a right of pre‑emption as a co‑sharer in the property and hence issue No. 6 was found in favour of the plaintiff: On Issue No. 7 the defendant‑vendees were found entitled to Rs. 281‑8‑0. In view of his finding on issue No. 1, the learned Senior Civil Judge, Peshawar, dismissed the plaintiff's suit against defendant‑vendees, with costs.
3. The plaintiff Ghulam Mustafa has preferred this first appeal from the judgment and decree of the Senior Civil Judge, a Peshawar.
4. The learned counsel for the appellant forcefully attacked the finding of the learned Senior Civil Judge on two grounds :‑
Firstly, that the impugned judgment on issue No. I was outside the scope and import of the issue,
Secondly, that the suit property is neither a shop nor a Serai in the strict sense of the term so as to bring it within the exception of section 5(a) of the North‑West Frontier Province Pre‑emption Act, 1950.
5. Section 5(a) of the North‑West Frontier Province Pre‑emption Act, 1950 and section 5(a) of the Punjab Pre‑emption Act, lay down
"No right of pre‑emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem :‑
(a) a shop, Serai . . . . . . ."
Neither a shop nor Serai has been defined in both the Pre emption Acts. In Dictionary a "shop" means "a building in which goods are sold by retail". According to section 2 of Act XXII of 1867 (an Act for the regulation of public Sarais and Puraos), "Sarai" 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 Sarai, the part so used of such building . . . . . . ."
6. For the purpose of arriving at a conclusion whether the suit property is a shop or Serai, we have to scrutinize the evidence, oral and documentary on the record. The sale‑deed, (certified copy Exh. P. W. 7/1) is captioned "Bainama Sakni". In the same sale‑deed Ghulam Mohyuddin vendor has been addressed "Sakini Cinema Road, Serai 6216, beroni Kabuli Gate Peshawar", and the suit building No. 6216 is referred to as Serai in the body of the sale‑deed. In the assessment register (copy Exh. DX) for the years 1959‑64 in column No. 3 for designation of the property, property No. 4650‑K/6216 has been described as Serai/house. In column No. 4 pertaining to name and residence of the owner, Abdul Ghafoor and brothers, sons of Ghulam Rasool are entered. In column No. 5, petaintng to name and residence of the occupier, "self" is entered. Ahmad Hussain (D. W. 8) Clerk, Excise and Taxation Department, Peshawar, has deposed in cross‑examination:‑
"Exh. D.X. is the certified copy from the register of Property Tax for the years 1959 to 1964. In the column of residence the word "self" is entered as self which means that the owners themselves reside in the property in dispute".
Said Rehman (P. W. 1) Clerk, Office of the City Magistrate, Peshawar, has stated that "the property in dispute bearing Municipal No. 6216 situated on Cinema Road, Peshawar, is not entered In this register as Serai or hotel". Rafiq Ahmad (P. W. 2) Clerk, Once of Rent Controller, has deposed :‑
"This Register shows that Ration Card bearing No. 32957 for eleven persons was originally issued to Ghulam Mohiyuddin whose house number is given as 6216, Cinema Road. Subsequently, however, the name of the Ration Card holder was changed and instead of Ghulam Mohiyuddin, Ghulvm Mustafa was entered as head of the family . . . . . . . . . .
Exh. P. W. 1/1 is the‑correct copy of the entry with regard to the Ration Card No. 32957."
Gul Sher, Muharrir Constable Police Station A' Division has deposed that the suit property is not entered as a Serai in the Register relating to Serais, situated in 'A' Division Police Station, Peshawar City. Haji Ferozuddin (P. W. 4) states :‑
"I have been seeing the property since my childhood. There is a baithak on the frontal side of the property, while towards its back there is a house. The baithak is used for business of reeds etc. The house is used for the residence of the children . . The disputed property is not a Serai because there is no licence for it."
In cross‑examination he stated :‑
"Since my memory the front portion of the disputed property has been used for the purposes of purchasing raw hides. Originally this business was done by Mian Ghulam Rasool, deceased father of the plaintiff and defendant ‑No. 1. After his death, his sons carried on the same business in this property for about 3/4 years, but thereafter they gave it up."
Taj Muhammad (P. W. 5) stated :‑
"The lower portion of the disputed property is used for the business of hides while in the upper portion the inmates of the house live."
In cross‑examination he stated :‑‑
"The father of the plaintiff was my friend. He was working under the caption Muhammad Ramzan‑Abdul Karim. During his life time he used to carry on the hides business in the disputed property. After his death his sons were doing the same business. Even now the business of .raw produce is being done in the disputed property. The raw hides are purchased there and sold there."
(P. W. 6) Muhammad Umar stated :‑
"The disputed property is situate opposite my house. It is a house and not a Serai. Ghulam Mustafa plaintiff lives therein with his family"
In cross‑examination he stated:‑
"The plaintiff is the brother's son of my father‑in‑law During his lifetime Ghulam Rasool, father of the plaintiff, used to carry on the purchase of raw hides in the disputed property and used to despatch them out station for terming purposes. After the death of the father of the plaintiff the plaintiff is carrying on the same business but to a very small extent. For the last 3/4 years the plaintiff has no business."
In re‑examination this witness stated :‑
"Mien Ghulam Rasool died in 1940. Mian Ghulam Rasool was doing the hides work only in the baithak which is on the road side. Now‑a‑days the plaintiff and his brothers are occupying that baithak as a sitting place."
Ghulam Mustafa plaintiff stated :‑
"The property in dispute is not a serai. The back portion of the property is occupied by us as a house, while in the frontal lower portion we do our business of hides and skins. The residential portion is about half, while the other half is used for business. I am doing business even now but to a lower scale. It is wrongly recorded in the sale‑deed but since long it is called a Serai. I am aged 31. I was born in the disputed property and I still live there. Serai is a place where the travellers stay in. In the disputed property no traveller has ever stayed and therefore, it is not a Serai. I draw ration for my family living in the house in dispute."
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.
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