' In the first instance, Mst. Ismat Khatoon purchased an immovable property vide registered sale- deed dated 31-5-1972. The property was described in the sale-deed as a shop. The price was entered as Rs,2,000. Syed Muhammad Suleman, the predecessor-in-interest of the appellants, filed a suit for possession of this property by pre-emption on 31-5-1973. Vide registered sale-deed dated 2-6-1972 the respondent No,1 purchased another immovable property. The price was entered as Rs,20,000. The said Muhammad Suleman filed a suit for possession of this property by pre-emption on 2-6-1973.
2. I may note here that according to the original plaint filed on 31-5-1973, it was stated that the property has been wrongly described as a shop. In fact, it is a house and the price paid was Rs,500 and the amount of Rs,2,000 is fictitious. So far as the second sale-deed is concerned, there is no dispute that it was in respect of a House No,6- G/45 to 47 located within the Municipal limits of Alipur Town, District Muzaffargarh. The right of pre-emption was claimed on the basis of ownership of adjacent house having a common wall with the suit property. It was stated in both the suits that the custom of pre-emption existed in the area in question before the enforcement of the Punjab Preemption Act, 1913. The respondent No,2 was impleaded as such as he was a mortgagee. It was stated in the two plaints that the mortgage is also fictitious. The respondent No,1 contested the suits with the contention that the shop is not pre-emptible and that there is no custom of preemption in the area in question.
3. Both the suits remained pending as such when on 29-6-1976 the said plaintiff filed an application for amendment of the plaint in the suit filed on 31-5-1973. It was stated that the vendors, namely, Nisar Hussain and Mst. Mehtab Begum have sold their entire House No,G/45 to 47 in favour of the respondent No,1 and since she was apprehending filing of the pre-emption suit, she had bifurcated the transaction and in the sale-deed dated 31-5-1972 the property sold has been shown as a shop and two days thereafter the remaining house has been sold vide sale-deed dated 2-6-1972. In fact, it was one transaction. However, the plaintiff had filed two separate suits on the basis of the two sale-deeds. He be permitted to include the claim made in suit No,249 of the year 1973 in the said suit and he be permitted to do so. This application was contested by the respondent No,1 stating that there are two independent transactions and the amendment cannot be allowed. It appears that both the suits were proceeding side by side. On 23-2-1977 the statement of the learned counsel for the plaintiff was recorded in the said Suit No,249 of 1973 to the effect that he has filed an application for amendment of the plaint in the connected suit and in case the said application is allowed, he will withdraw the suit. On the same day, the amended application was taken up in the other suit and was allowed. Consequently, the said Suit No,249. Of 1973 was dismissed as withdrawn by observing that the amended application has been allowed in the other suit. The plaintiff was ordered to pay the costs to the respondent No,l.
4. Thereafter, an amended plaint was filed on 19-12-1977. In this plaint, possession of House No,G/45 to 47 as described therein was sought by pre-emption. The details of the two sale-deeds were then given with the statement that, in fact, the transaction is one. It was then mentioned that actually only Rs,7,250 were paid for the entire house but Rs,20,000 were wrongly got recorded in the said sale-deed. It was then mentioned that the property has been wrongly shown to be under mortgage. The superior right of pre-emption was reiterated on the same ground of contiguity. The existence of custom of pre-emption in the said area was pleaded. The written statement was filed by the respondent No,1 taking the same objections and also that the suit has become barred by time and is not maintainable. Following issues were framed on 28-1-1979 by the learned trial.
Court:-
(1) Whether the suit property is pre-emptible? OPP
(2) Whether the custom of pre-emption exists in the local ty of the suit property? OPP
(3) Whether the plaintiff has superior right of pre-emption over the defendant? OPP
(4) Whether the sale price of Rs,2,000 for shop as alleged in- the written statement and Rs,20,000 for house as alleged in the written statement were fixed in good faith or actually paid? OPD
(5) If not what was the market value at the time of sale? OP Parties
(6) Whether defendant spent Rs,10,000 on the improvements of the suit property? OPD
(7) Whether; the mortgage in question is with consideration? If so, with what effect? OPD
(8) Whether both the registered sale-deeds dated 31-5-1972 and 2-6-1972 are parts of one transaction? If so, its effect? OPP
(9) Whether the suit property is improperly described in the plaintiff, so its effect? OPD
(10) Whether the suit is improperly valued for the purposes of court-fee and jurisdiction, it so, what is the correct value? OPD
(11) Whether the suit, is not maintainable in view of preliminary objection No,10 of the written statement? OPD
(12) Whether the suit is bad for mis-joinder of causes of action? OPD
(13) Whether the defendant is entitled to special costs? OPD
(14) Whether the suit barred by limitation? OPD
(15) Whether this suit is not maintainable under Order XXIII, rule 1, C . P. C .? OPD
(16) Relief.
'Evidence of the parties was recorded. All the issues were answered in favour of the appellant and the suit was decreed vide judgment and decree dated 18-3-1984 subject to payment of Rs,22,000 as the price and Rs,5,000 as costs of improvements. A first appeal filed by the respondent No,1 was heard by the learned Additional District Judge-I, Muzaffargarh, who allowed the same. He reversed the findings of the learned trial Court on Issues 1, 2, 3, 8, 9, 12, 14 and 15. The suit was dismissed on 10-1-1988.
5. Mian Muhammad Arshad Latif, Advocate/learned counsel for the appellants contends that the learned Additional District Judge has misread the evidence on record while holding that one of the sale-deeds pertained to a shop. According to the learned counsel, there is no evidence on record that a shop was sold or that a shop in any manner exists or did exist at any time before the sale.
According to him, there is no evidence that any activity relatable to a shop ever takes place in the premises in question. Learned counsel further contends that the suit was wrongly treated to be a suit withdrawn within the meaning of Order XXIII, rule 1, C.P.C. According to him, the circumstances in which the suit was dismissed as withdrawn are apparent on the face of record. The contention was that the amendment of the plaint in the other suit to include the said claim which was granted and the amendment having been allowed would take effect from the date of the institution of the suit. Consequently, by no stretch the suit can be said to be barred by time. He vehemently urges that it was established on record that the boundaries of Alipur Town stood extended before the promulgation of the Punjab Preemption Act, 1913 and the custom of pre-emption did exist.
' Mirza Manzoor Ahmad, Advocate/learned counsel for the respondents, on the other hand, contends that there were two independent transactions and these were treated as such by the deceased plaintiff herself and that is why two suits were brought which remained pending for considerable long time. According to him, the only provision of law under which the said other suit was allowed to be withdrawn was order XXIII, rule 1, C.P.C. And consequently, it would be deemed that the suit was never filed and this being so for all purposes the suit in respect of the said transaction was filed on the day the amended plaint was filed and was barred by time. The learned counsel further contends that it stood proved on record that the transaction was in respect of a shop which was not pre-emptible. The learned counsel vehemently urges that on the basis of the evidence on record it cannot at all be said that the custom of preemption existed in the area where the suit property is located.
7. I may note here that both the learned counsel have relied upon the case-law which will be referred to in this judgment as it continues.
8. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. It will be seen that upon a reading of the pleadings and the respective contentions of the learned counsel noted above, the points to be determined in this R.S.A. Are as to whether one of the transactions pertained to a shop which is not pre-emptible and whether it has further effect on the exercise of right of pre-emption regarding the remaining portion of the property, as to whether the custom of pre-emption existed in the area where the suit property is located and the effect of withdrawal of the suit and the inclusion of the claim in the present suit.
9. So far as the first point is concerned, the copy of the sale-deed dated 31-5-1972 is Exh.P.27. It is executed by Nisar Hussain and his daughter Mst. Mehtab Begum in favour of Mst. Ismat Khatoon vendee/defendant. It narrates that the vendors are the owners of a shop to the northern side whereof measures 6 feet 2", southern side measures 9 feet 3", eastern and western sides measure 24 feet each. It is located within the limit of Town Committee, Alipur and opposite the Tehsil Gate.
10. Now the first witness in the case is Mehtab Begum one of the vendors. She appeared as P.W.1.
She has stated that no shop existed neither one was sold and they had never applied for constructing a shop. Now this part of the statement has been discarded by both the learned Courts below. The learned trial Court has made a note in discussion under Issue No,1 while upholding the objection of the learned counsel for the defendant that the said part of the statement of Mst.
Mehtab Begum is not relevant and the learned Additional District Judge of course, has not relied upon it Now the respondent herself claimed that the shop was constructed after the purchase and she in fact, claimed the costs of the said improvement. In fact evidence was led by her to prove the said fact. Now as noted by me above, the sale-deed. Exh.P.27 was registered on 31-5-1972, It is narrated in the sale-deed and it is the case of the respondents that the property had been mortgaged with possession in favour of one Muhammad Azhar. The mortgage deed is Exh.D.3. This document narrates that a house comprising 5 bed rooms with two Verandahs one in front and one in the back with a courtyard, two toilets has been mortgaged with Muhammad Azhar and possession has been delivered. The document is dated 23-6-1971. The evidence led is to the effect that the shop was constructed some times in March, 1972 whereas according to the endorsement recorded on mortgage deed Exh.D.3 it was redeemed and the mortgaged amount was paid by or on behalf of the vendee-respondent on 30-6-1972. This endorsement has been separately exhibited as D.3/4. It is but evident that the premises being not in possession of the vendors and the vendee having entered into possession on 30-6-1972. There was no question of a shop having been constructed by the vendors or the vendee at the point of time sought to be proved by the vendee-defendant. Now Mumtaz Khalil the son and attorney of the respondent-vendee appeared as D.W.4. He did state in the examinationin-chief that the shop was got constructed by Nisar Vendor and it was purchased but when confronted in cross-examination he expressed ignorance that at the time of sale when sale-deed dated 31-5-1972 was executed, the shop, in fact, constituted an entry to the house in the form of a passage. The learned trial Court also inspected the site on 27-1-1983 and found that the passage to the house has been converted into a shop and in order to enter the house the only way is through the said shop. Even the site-plan sanctioned for the construction goes to show that in fact the premises in question is the passage to the main house. Now the plan allegedly sanctioned for the shop i,e, Exh.D.4 would show that, in the first instance, it was sanctioned on 20-9-1972 and in the second the plan has no nexus with the particulars and details of the property contained in Exh.P.27.
11. Having thus, examined the records, I do find that the shop was never in existence at any point of time before the sale made in favour of C the respondent by the said vendors.
12. Now the learned counsel for the appellants relying upon the cases of Wadhawa Mal v. Lachman Das and others AIR 1924 Lah. 213; Sandhi v. Khair-ud-Din and others AIR 1927 Lah. 328 and Sant Singh v. Gobind Ram AIR 1923 Lah. 209 has urged that under the pre-emption laws a shop is a building or an apartment which is used for buying and selling goods and it has to be business premises in the general sense of the word where retail sale of goods takes place. Now I do find that there is no plea and no evidence on record that any such commercial activity of sale and purchase of goods had ever been taking place in the alleged shop.
13. Notwithstanding the sale of property by effecting two sale-deeds, one fact remains admitted on record that both the premises are part of the same property. The learned counsel for the appellants relied upon the cases of Haji Muhammad Naim v. Mst. Umatur Rasul and others PLD 1965 Pesh. 57; Ghulam Mustafa v. Haji Mian Muhammad and another PLD 1969 Pesh. 241; Mst. Dilbar Jan and others v. Abdul Ghaffar PLD 1966 Pesh. 80 and Mukhtar Ahmad v. Abdul Rahim and another PLD 1985 Pesh. 122 to urge that where the property is primarily a house and some portion used as a shop then the entire premises would be pre-emptible. This contention of the learned counsel has not been answered by the respondents.
14. In view of the said established factual and legal position on record. I do find that the learned Additional District Judge has committed ID an error of law while reversing the findings of the learned trial Court on issue No,l. The same is accordingly restored.
15. As to the second point, I have narrated the history of this case in some detail above. Now initially two suits were instituted for possession of the subject-matter of the two sale-deeds by pre- emption. Thereafter, as stated by me above, an application was filed for amendment of the plaint in the present suit and at the same time a prayer was made for withdrawal of the said other suit.
Now this later statement was a conditional statement and the learned counsel expressed that he will be withdrawing the suit only if his amendment application is allowed in the other suit. The, application was so allowed and at the same time with reference to the said factum, the other suit was dismissed as withdrawn.
16. To my mind, the above exercise cannot be stated to be an order granting a prayer to withdraw the suit with permission to file a fresh. In fact, by all means this is a case where a suit is withdrawn when the other suit is pending and no bar of law as contemplated in Order XXIII, rule 1, C.P.C, would be applicable as held in the case of Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344.
17. Now the question arises as to whether it can be deemed that by way of amending the plaint, the suit to pre-empt the.Other sale was filed on the date the plaint was presented. The answer is in the negative as because the law is that where the amendment in a plaint is allowed then it shall be deemed that it was there all along since the date of institution. The learned counsel for the appellants has very correctly relied upon the cases of Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Sabir Ali v. Mst. Zubaida Bibi 1993 MLD
321. The findings of the learned trial Court on issues Nos.8 and 15 are accordingly restored.
18. Now this leaves the matter of the existence of the custom of preemption. Now primary finding of the learned trial Court under the relevant Issue No,2 is that according to notification, dated 27-5- 1904 the limits of Alipur Committee were extended and the locality in question fell within the extended area of Alipur Committee since the said date. The rest of the discussion follows accordingly leading to the conclusion that the custom of pre-emption did exist. Now the learned Additional District Judge, on the other hand, has formed the opinion that the locality in question was outside the limits of the old Town and the area was outgrowth, and the mere fact that the custom existed in the old Town would not lead to the inference that it existed in the extended area as well. The said findings of the learned trial Court has accordingly been set aside.
19. Now an examination of the evidence on record would show that there is no dispute whatsoever as to the old limits of Alipur and the fact that the custom of pre-emption did exist there. Now Mehtab Begum vendor as P. W.1 has admitted that the old Town of Alipur is locates: within the bounds of {{URDU TEXT}} " " i,e, Circular Road and that she does not know that the suit property is outside the said limits and as to how for is it so outside. Salam-ud-Din P.W.2 has stated that he purchased one Marla from Syed Nisar Hussain and Mehtab Begun filed a suit on the ground of contiguity. The suit was decreed and his appeal was dismissed. He has also quoted another instance whereby Dr. Saqlain sold one Marla to Qazi Akhtar and whereupon Muhammad Akmal filed a suit which was decreed. Another suit was filed by a Hindu against Ghulam Haider which was decreed. According to this witness, Ward No,2 came within the Municipal limits since 1886 and that the property is located in this Ward. He then stated that he had not contested the matter and had conceded in the Court of learned District Judge. In his cross-examination, he stated that he was neither a party nor he appeared as a witness in the case of Hindu and Dr. Saqlain and that he dia not produce the documents pertaining to the said suit in his case. He then stated that the parties had not led any evidence in his suit that custom exists. He was then confronted. He denied that the old Alipur Town is within the Circular Road. Thereafter, he admitted that there is a Circular Road in Alipur and that there are four gates of the old Town. Towards East is Ghalwan Gate. Towards West is Fatehpuri Gate. Towards South Khairpuri Gate and towards North is Saddar Gate. He admitted that the suit property is outside the said Circular Road.
20. Tajamal Hussain is P.W.3. He has stated that in the Ward where property is located, there is custom of pre-emption but he does not know since when. He then stated that a pre-emption suit was filed against Salam-ud-Din and Akmal had also filed a pre-emption suit. In his cross- examination, he stated that it is well-known that the plaintiffs had won the suit in the matter of Dr. Saglain and Salam-ud-Din. He was, however, neither a party nor the witness and that he has not read the decisions. He has stated that the suit property is 200 yards outside the Circular Road.
21. Now Syed Muhammad Baqir the attorney of the plaintiff appeared as P.W.4, he proceeded to state that the property is located in Ward No,3. Earlier, it was Ward No,2. Exh.P.1. Is the plan of the Committee pertaining to the year 1886 and that the property is located in the old Alipur Town and in the Town Committee custom of pre-emption exists. He also refers to the suit filed by Mehtab Begum against Salamud-Din which was decreed. In his cross-examination, he has stated that towards North of the property is Tehsil Road. He denied that Exh.P.1. Depicts the situation after the independence of the country. He denied that the old Alipur Town is within the Circular Road. Rather the old boundaries were from Bus Stand to Ghalwan, Seetpur, Khairpur, Fatehpur and Jatoi Octroi Posts and therefrom to Tehsil Road. He, however, then admitted that in the Circular Road around the old town, four gates were there. Ghalwan Gate opened towards the East. Fatehpuri Gate open towards the West. Saddar Gate opened towards North and Khairpuri Gate towards South. He further admitted that from Fatehpuri Gate the road leads to Jughiwala and Fatehpur, from Kahirpuri Gate the road goes to Khairpur and Chani Goth, from Ghalwan Gate the road goes to Ghalwan. There is a small gate between Ghalwan and Saddar Gates wherefrom the road goes to Tehsil and the suit property is located at Tehsil Road and opposite Tehsil Office at a distance of 150/200 yards from the Circular Road. He denied that Wards Nos.2 and 3 of Alipur are located inside the Circular Road. He was then directly confronted and he answered that he cannot quote any instance prior to 1913 that in the area where the suit property is located any pre-emption suit was decreed. He admitted that Sadiq had purchased adjacent property in the years 1967 and 1969 and that no suit was filed by the plaintiff. Now Mumtaz Khalil the son and attorney of the respondent appeared as D.W.4, he stated that the old Alipur Town is within the Circular Road and it remained so till 1918. The locality where the property is located come into existence as such 10/12 years before the independence of the country and that there is no custom of pre-emption. He, of course, stated that the property is located outside the said Circular Road. He also stated that the plan Exh.P.1 pertains to the Wardbandi of 1948.
22. Now, as noted by me above, the learned trial Court has proceeded to read notification dated 27-5-1904 in evidence and according to its reading this is a notification whereby the limit of Alipur Committee were extended and this having happened in the year 1904, it shall be deemed that in, the year 1913 the custom of pre-emption existed in the said extended limits. Now so far as Exh.P.1 is concerned, it is silent as to the date or year of its preparation. The parties have made conflicting claims. The said notification is present at pages 485 to 487 of the trial Court records. Now according to this notification, the revised boundaries of the municipality of Alipur in Muzaffargarh District towards the North Mata Devi Temple was fixed as a point wherefrom a straight line running 192 feet North of Tehsil building to the bridge on the Muzaffargarh Road, and then to a point 116 feet East of the said road. From this point a straight line 116 feet from and parallel to the Seetpur- Muzaffargarh Road to the Channigoth Road towards the East and then towards the South the Channigoth Road to a point 105 feet from the Circular Road and then straight to a point on the Jhuggiwala Road 462 feet from the Circular Road. Towards the West, there is a referenc to the Sweepers' houses, 215 feet from the Fatehpur. Janubi Road and then a straight line to the Northern Wall of the Mata Devi Temple. No attempt has been made to establish on record the said point i,e, Mata Devi Temple so as to enable the Court to determine as to what were the existing boundaries in the year 1904 and what were the proposed boundaries. The learned trial Court has simply assumed that the boundaries given by all the witnesses, as narrated by me above, were extended by this notification. I am afraid there is no evidence on record to the said fact. Even the admission of the said notification in evidence and its reading therein is doubtful particularly so when it was objected to.
23. Now according to the evidence on record. The Circular Road constituted the bounds of the Alipur Committee and the suit property is certainly located outside. As to whether the said extension would also F constitute extension of the custom of pre-emption, the answer is in the negative as held in the case of Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through L.Rs, and another 1993 SCMR 1477.
24. As a result of the above discussion, the findings of the learned trial Court on Issues Nos.1 and 3 to 15 are affirmed while finding G recorded by the learned First Appellate Court on issue No,2 is affirmed. Consequently, the R.S.A. Is dismissed without any orders as to costs.