This judgment will dispose of two appeals (R. S. A. No. 31/1982 and R. S. A. No. 32/1982) filed by Qazi Abdul Ali against the judgments and decrees dated 13-7-1981 of the learned District Judge, Jhelum.
2. Briefly stated the facts forming background of appeal (R. S. A. No. 31/1982) are that Qazi Abdul Ali, appellant, filed a suit for possession through pre-emption asserting that the property in dispute was being used as a store and for residential purposes and as such it was not in reality a shop but fictitiously the property sold was mentioned as shop in the registered Sale Deed in order to defeat his right of pre-emption. He had claimed his superior right of pre-emption on the basis of having a property contiguous to the property in dispute and that the right of pre-emption existed in the locality in which the property in dispute was situate. The respondent contested the Bait and controverted all the allegations of the appellant. He pleaded that the suit property was in fact a shop and as such it was not pre-emptible. The learned trial Judge vide his judgment and decree dated 26-3-1981 dismissed the suit of the appellant holding that the suit property was a shop. On appeal the first appellate Court affirming the abovesaid finding of the trial Judge dismissed the appeal vide judgment and decree dated 13-7-1981.
3. The factual background of the other appeal (R. S. A. No. 32/1982) is that in the suit for possession through pre-emption filed by the appellant it was asserted that the property in dispute was being used as an oven of Bakery and as such was not a shop, hence the description of the suit property in the Sale Deed as shop cannot defeat the pre-emptive right of the appellant. - 'the existence of custom of pre-emption was also pleaded. The respondent controverted these allegations by asserting inter alia that the property in dispute was a shop and as such no right of pre-emption existed in view of provisions of section 5 of the Punjab Pre-emption Act, 1913. The learned trial Judge dismissed the suit vide judgment and decree dated 26-3-1981 after holding that selling and buying of goods was not being conducted at the suit property and that there was oven in the property and various items of Bakery were prepared, collected and placed therein.
4. The respondent appealed against the aforesaid decree and the learned District Judge, Jhelum vide judgment and decree dated 13-7-1981 reversed the above-noted finding, and consequently dismissed the suit of the appellant. The reasons for reversal of the finding on the question whether the suit property was a shop as recorded by the learned District Judge are as under :- "It is evident from the record that the property in dispute is situate in Bazar. It has an area of about one marla. It is surrounded by shops. A business of preparing the items of bakery is carried out in it.
The items of bakery prepared by the appellant .Are put to public for sale, therefore, the primary object of the property in dispute is that it is used for preparing certain items for sale. In this way, the business of sale is also carried out in the premises in dispute. Furthermore, it has been mentioned as shop in the Sale Deed. All these circumstances taking into consideration and considering the quality of the superstructure I 4m inclined to think that the sale effected through registered Sale Deed of the property in dispute is a shop and not a building used for other purposes . . . . . . ."
5. The decrees passed in both the suits are under challenge in the present appeals. The learned counsel contends that the property in dispute in both these suits was wrongly held to be `shops' because the transactions of purchase and sale were not being carried out in the disputed premise.
According to the learned counsel the word "shop" as used in section 5 of the Punjab Pre-emption Act denotes a building or an apartment which is primarily used for buying and selling goods and a building used for storage of goods or for preparation of goods, is not a shop. Reliance is made on Wadhawa Mal v. Lachman Das and others (1). In this case on the basis of the evidence produced it was held that the property was being used for storing sleepers and considering the use to which it was put, the same was held to be not a shop. Learned counsel for the appellant also relied on Sandhi v. Khair-ud-Din and others (2) as the learned Judge observed in this case that he does not think that the fact that a carpenter works in the place where he resides turns the building into business premises or into a shop.
(1) AIR 1924 Lah. 213(1)(2) AIR 1927 Lah. 328
6. Having considered the submissions of the learned counsel for the appellant I have no hesitation in repelling the same. It will be noted that in Wadha--va Mal's case, learned Judge was of the view that a building used for storage of goods is not a shop, but in Jhabban Lal and another v.
Muhammad Umar and another (1) it was held that a godown situated in a Bazar is a shop.
However the view taken in Wadhawa Mal's case as well as the judgment of Dalip Singh, J. In Sandhi's case is distinguishable on facts. ; as in the former case the property was being used for storing goods only and in the latter case the carpenter was residing in the building as well. It will also be noted that Dalip Singh, J. After making a mention of the judgment delivered by a Division Bench in the case of Jhabban Lal and another v. Muhammad Umar and another observed that the rulings which lay down that a shop is primarily a place where goods are bought and sold are correct and that to extend the meaning to "business premises" in the general sense of the word is to make an unwarrantable extension of the meaning of the word "shop". This question again came up for consideration in Jas .Raj Juniwal v. Gokal Chand Jaini (2) in which it was held that each case depends upon its peculiar circumstances and, therefore, decided cases may not be useful in deciding the matter. In Ghulam Ahmad Khan v. Diwan Sheikh Ghulam Qutab-ud-Din (3) it was observed that all aspects are to be considered by Courts. There are cases in which warehouses attached to shop, workshop or business premises were held to be shop. See 113 Punjab Record 1906 and 70 Punjab Record 1898.
7. The word "shop" has not been defined by the Pre-emption Act. Oxford Dictionary defines the shop as,(1) building, room, etc. For retail sale of some commodity or service, (2) institution, establishment, place of business. In Stroud's Judicial Dictionary, some of the definitions noted read as under :- "The word "shop" implies a place where a retail trade is carried out ; a blacksmith's shop is rather a warehouse than a shop (R. v. Chapman 7 J P 132), so of a carpenter's shop. A blacksmith's shop is not a "shop" within section 15 of the Shops Act, 1934. Nor is a dry cleaner's premises."
The above-quoted definitions were given with reference to the context in which the word "shop" was used in the particular Statute. These definitions are of no avail for the purposes of interpreting section 5 of the Pre-emption Act . The term `shop' as such is to be given ordinary meaning. This term has to be understood in its usual and accepted connotation. It was not without reason that the learned Judges in the case of Jas Raj Juniwal v. Gokal Chand Jaini observed that each case depends upon its peculiar circum--stances and that the primary or main purpose for which the- building is used should be ascertained. In Jhabban Lal's case Broadway and Jay Lal, Judges observed that "in deciding whether a particular building is to be considered as a house or as a shop for the purposes of pre-emption, the 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. That question mainly enters into consideration for the purpose of determining whether the character of the property has bona fide and definitely been established. The requisite duration of user must accordingly depend on the facts of each case and on other circumstances that may be proved. The nature of the locality in which the building is situated is another factor to be considered along with other circumstances. If the building is used for more than one purpose, then the primary, or more important of such purposes is -to be considered. Structural appearance of the building must also be taken into consideration."
(1) AIR 1925 Lab. 544(2) AIR 1935 Lab. 808 .
(3) PLD 1960 Lab. 461
8. I respectfully agree with the above view and applying the above stated test to the facts found to have been established in the suits in hand the only finding that can be returned is that the properties in dispute were) shops. There is a concurrent finding of fact, so far as second appeal bearing No. 31/1982 is concerned on the question of use to which the property was being put.
9. In the other appeal (R. S. A. No. 32/1982), the circumstances and the factors on account of which the property was held to be shop have been quoted above. It is apparent that on account of the use to which the building was being put, it cannot be called a factory. The primary or main purpose for which building was being used was sale of the bakery item and this was possible only after preparing these articles of food. The size of the land underneath the building and its situation also support the conclusion that the building was a shop.
The net result of the above discussion is that there is no merit in both these appeals and the same are dismissed in limine.