1. Briefly, the facts relevant for the disposal of this second appeal are that the defendant/appellant purchased the suit property described as two garages situate inside Dabgari Gate Peshawar City, vide registered sale-deed dated 8-9-1973 (Exh.
15. W. 1). The plaintiff/respondent pre-empted this sale transaction on the ground of superior right of pre-emption being owner of a contiguous property. The defendant/appellant contested the suit and in her written-statement she denied the pre-emptive right of the plaintiff/respondent on two-fold ground: (1) That the suit property being practically shops is exempt from pre-emption and (2) that she wants to construct a house upon it for self-residence. Upon the evidence brought before him on record, -the learned trial Judge decreed the suit of plaintiff/respondent vide his judgment dated 9-9-1975. On appeal preferred before him by the defendant/appellant, the learned District Judge concurred in the judgment of the learned trial Judge and dismissed the appeal, vide his judgment dated 23-6-1976 impugned in the present second appeal.
2. I have heard the learned counsel for the parties and perused the record. It is clear from the impugned judgments of the two Courts below that they have placed their reliance upon the literal meaning of the word `garage' that as vehicle is parked in it, it cannot, therefore, be termed as shop.
3. True, in the sale-deed (Exh. D. W. 1/1) the suit property is mentioned as two garages. But the plaintiff/respondent was unable to produce even an iota pf evidence that the same have ever been used for the purpose of parking therein vehicles. He was also unable to show that he has pre- empted the suit property in order to use it for the purpose of parking his vehicles therein. In the circumstances, it will have to be seen whether the suit property are practically used as shops and thus exempt from pre-empting. This question is not difficult to be resolved, as from the evidence on record it can be conveniently concluded that the suit property is being used as-shops. In his evidence before the trial Court, the plaintiff/respondent has admitted that one unit of the suit property has been rented to a sweetmeat seller in which he prepares sweetmeats and the other unit has been rented td a Hakeem in which he has placed charpoys. The evidence produced on behalf of the defendant/appellant shows that the suit property is used as shops and it has never been used as garages, in that one unit is used as shop by a sweetmeat seller and the other unit is used by a Hakeem as clinic. I am inclined to prefer the evidence of the defendant/appellant as against the evidence of the plaintiff/respondent. In support of this conclusion, I am fortified by the fact that the suit property is situated in the commercial area, and this being the position, it would be obvious that the suit property consists of shops, especially when notice is taken of the fact that it has never been used as garages in the real sense of the word. The Court is required to take constructive view of the matter and it would be impermissi--ble to draw conclusion in support of its finding from the technical ques--tions raised before it. As upon the evidence brought on record it 'has come to light that the suit property is being used as shops and has never been used as garages, the two Courts below were, therefore, wrong to hold that simply because in the sale-deed the suit property is mentioned as garages there would be no question that it consists of shops. Had they considered the evidence on record in its real perspective, surely they would have come to the conclusion that the suit property consists of shops and to describe them as garages is a misnomer.
4. Even if it is assumed that the suit property consists of garages and not shops, yet the plaintiff/respondent can be held to have lost his pre-emptive right. It is conceded that the suit property or for that matter the two garages are situated in the Municipal area. It would, therefore, be obvious that both the garages would be independent units, for each property situated within the Municipal area (whether a house, sarai, garage, shop or even a mosque) bears separate number in the Municipal register and such other documents. Each property is also assessed separately for the purpose of taxation. In the present case, as pointed out above, the two garages are independent properties. Since the defendant/appellant has purchased both the garages with one of which the plaintiff/respondent does not own contiguous property, the defendant/appellant can, therefore, be held to have equal status and thus the right of pre-emption of the plaintiff/respondent against her has been lost. The authorities reported as PLD 1970 Pesh. 160 and PLD 1974 SC 383 relied upon by the learned counsel for the plaintiff/ respondent seem to be d1stinguishable, as they relate to Khasra numbers and it is held therein that holding or parcel of land comprising in a number of fields bearing various Khasra Numbers would remain one property and the pre-emptor can successfully pre-empt the sale of such parcel of land even if he does not own property contiguous to all Khasra numbers. But in the present case, the two garages are not one property but two separate and independent properties each having separate enclosures and bounder walls, and thus by purchasing both the properties, the defendant/appellant was able to defeat the pre-emptive right of the plaintiff/respondent, for does not own property contiguous to one of the two garages. The learned counsel for the plaintiff/respondent contended that as both the garages have a single roof, they cannot be treated as two independent properties. This contention would appear to be technical than real. Suppose, a person owns various houses in the same line in a street and all the houses have the same roof. He sells one house situated at one end.
5. Another person owning a house at the other end pre-empts the sale of the house. Can he be held to have pre-emptive right on the ground that his house is situated in the line of the houses which have the same roof? The answer to this question would evidently be in the negative, for it would be fallacious to hold that just because his house is situated in the same line of the houses having the same roof, his contiguity to the house sold, even if it is situated at the other end, is established. True, the law of pre-emption is based on the doctrine to prevent a stranger from becoming the next door neighbor of the pre-emptor. But if the vendee is able to make his status equal by purchasing another property contiguous to the disputed property, the pre--emptive right of the pre-emptor will stand defeated. In this view of the matter, as the defendant/appellant has purchased the two garages which are distinct and independent properties with one of which the plaintiff/respondent does not own contiguous property, the defendant/appellant had made his pre-emptive right equal and as such the pre-emptive right of the plaintiff/ respondent against her has no legs to stand upon.
6. On the view of the matter that I take, this appeal succeeds. Consequently, setting aside the impugned judgments of the two Courts below, I dismiss the suit of the plaintiff/respondent. Under the circumstances, however, there would be no order as to costs.