Abdur Rashid purchased per registered deed dated 26th April 1973 some immovable property for a sum of Rs. 14,400. Muhammad Rafiq pre-empted the sale and claimed a superior right of pre- emption on the ground of co-sharership, participation in immunities and appendages besides owner--ship of the contiguous property. The vendee denied the superiority of the pre-emptor's right and inter alia averred that the sale was exempt from pre--emption. The suit was decreed on payment of Rs. 14,400 by Civil Judge, Peshawar on 19-I1-1976. Abdur Rashid preferred an appeal but the same was dismissed by Additional District Judge, Peshawar on 18-4-1979. Aggrieved from the judgment and decree Abdur Rashid has come on second appeal.
2. It is the finding on issue No. 4, reproduced below, which has been assailed before me :- Is the disputed transaction exempt from pre-emption?
It was urged before the learned trial Court that the suit property comprised of three garages and a~Mandi for the sale of timber and that; according to the appellant, it was a serai . Exemption from pre-emption was sought on the ground that the suit property was a 'serai--. The plea, however, did not find favour with it nor with the learned appellate Court. Section 5 (a), N.-W.F.P. Pre-emption Act (hereinafter called the Act) reads as under :- 5: Property exempt from Pre-emption.-No right of pre-emption shall exist in respect of the sale, or the foreclosure of, a right to redeem :-
(a) a shop, serai, katra or club ; The sole question to be determined is whether the suit property falls within the mischief of clause
(a) of section 5 reproduced above.
3. The suit property has been described in the sale deed as Timber Mandi and the plaintiff- respondent also mentioned in the plaint that it seas Timber Mandi. The defendant-appellant in his written statement averred, that the disputed property was shop/Timber Mandi and was exempt from pre-emption. The learned counsel for the appellant strenuously contended that the term Mandi and shop were synonymous as both denoted that business was carried on in these premises. A shop is said to be a building used for the purpose of business or trade or an apartment where goods arc sold by retail. The ratio decidendi in cases in which the property is used for more than one purpose is to find out the primary or main purpose for which it has been used. The term shop has not been defined in the Act but a string of case; law is available on the interpretation of this term.
4. It is held in Bhawla Rant and another v. Allah Bakhsh (AIR 1915 Lah. 143) that the word 'shop' in its ordinary meaning denotes a building or an apartment with the primary use for buying and selling goods. In Jaithu Mal v. Janki Dar and others (AIR 1917 Lah. 413 (2)) the test of determining whether a building was shop or residential building was laid down and it was held that in order to determine whether a building is, for the purposes of pre-emption, a shop or a residential building, regard must be had to the chief or most important purpose to which the building in question is devoted. A similar view was expressed in Lal Chand and others v. Mst. Begum (AIR 1923 Lah. 162). It was observed in Jhabban Lal and another v. Muhammad Umar and another (AIR 1925 Lah. 544) that in deciding whether a particular build--ing is to be considered as a house or as a shop for the purposes of pre--emption a primary use to which the building is put at the time of the sale, has mainly to be considered. The length of its use is no doubt an important factor to be considered but that is not the only consideration. It was further observed that structural appearance of the building must also be taken into consideration besides its location.
5. The disputed property has, no doubt, been described as Mandi for sale of timber. In the dictionary Feroz-ul-Lughat published by Ferozsons Ltd. The meanings of the word 'Mandi' have been given and these are 'Tijarat Gah', 'Bazar', 'Hat', 'Bars Bazar' and 'Thok Faroshi Ki Jagga'. If the term Mandi is equated with the term market one can visualise the nature and character of the premises. The meanings of the word 'market', accord--ing to the Chambers' Twentieth Century Dictionary, are a periodic con--course of people for the purposes of buying and selling, a building, square or other public place used for such meetings, a shop, and a region in which there is a demand for goods. We have Mandis in our country where people gather periodically for buying and. Selling different kinds of merchandise. One may in this context make a mention of 'Muwaishi Mandi' where cattle is sold and in towns weekly Mandis are held for the sale and purchase of cattle and other necessities of life. We find in the towns 'Sabzi Mandi', 'Fruit Mandi', 'Gballa Mandi' and 'Lakkar Mandi' which are prominently located in the bazar and comprise a number of business premises. The suit property does not fall in any of these categories of Mandis. There are shops in the town for sale of timber and in view of their dimensions these are called Timber Mandis. This description does not per se rob them of their intrinsic value as shops. It follows that a Mandi can be regarded as a place where goods are sold or bought and that Timber Mandi is a shop where timberis sold.
6. It would be profitable to refer to the pleas of the parties with regard to the description of the suit property. The plaintiff-respondent admitted during the course of his cross-examination that timber was sold in the suit property which was a shop for the sale of timber. His witness Mir Aslam who is a lessee of the suit property and has raised superstructure on the vacant site disclosed that the suit property was comprised of shops of timber and a garage. He added that during his tenure and that of the other tenants the suit property was in the shape of shops. The defendant-appellant too admitted that timber was sold in the Mandi, a part of the suit property which comprised of three garages also. One fact that the prominently emerges is that in the Mandi timber was sold. The plaintiff-respondent had not referred to the garages but Mir Aslam mentioned a garage. The appellant revealed that in one of the garages cement was stocked and the other two were occupied by 'tongawalas' who manufactured 'tongas'. A look at the site plan appended to the plaint shows that on the front of the suit property were three rooms and on their back was a vast courtyard with two 'chhappars'. There was an inlet to the Mandi. No portion of the suit property was used for residential purpose. The period of user of a garage for stocking cement and two garages for manufacture of 'tongas' has not been brought on record. The 'tongas' manufactured in the garages would be for sale. It is manifest that the major portion of the suit property was being used as shops. The plea that the suit property was not a shop and was not immune from pre--emption holds no water. In Lal Chand and others v. Mst. Begum (AIR 1923 Lah. 262) build--ing comprising of three shops was held to be a block of shops and hence not pre-emptible.
7. The plaintiff-respondent had in his statement described the suit property as a 'serai'. The term 'serai' came up for consideration in Haji Mian Mohammad and another v. Ghulam Mustafa (PLD 1973 SC 394) and it was observed that the word 'serai' had always been regarded as meaning a building or premise used for the temporary accommodation of travellers where the general public has access to the interior. It is not in the pleadings of the parties that the suit property was a 'serai' and none of them could be permitted to travel beyond its pleadings. The question of the suit property being a 'serai would not, in the circumstances, arise.
8. In view of the user of the suit property at the time of its sale, its location and its constitution I am of the view that it can be treated as a block of shops and, as such, exempt from pre-emption under section 5 (c) of the Act. The findings of the Courts below holding the suit property pre emptible are not sustainable in the eye of la w.
In the result, I would accept the appeal, set aside the judgments and decrees of both the Courts below and would dismiss the suit of the plaintiff---respondent. In view of the legal question involved the parties are left to bear their own costs.