1. ' One Sardar Gul owned a small building situate near Clock Tower, Peshawar City. On his death, his two sons, namely, Mukhtiar Ahmad and Muhammad Nazir Ahmad inherited the same. On the ground floor of the property, there are two small shops. The shops have one roof upon which there is built a residence. In the events that happened, Muhammad Nazir Ahmad sold his share, namely, one shop and half of the residence for Rs, 20,000 in favour of Abdur Rahim and his wife Mst. Saeeda Akhtar through separate deeds. Mukthar Ahmad pre-empted the sale transactions on the ground of co-shareship in the suit property by means of two separate suits. The suit after contest between the parties was dismissed by the learned trial Judge on the ground that the suit property is a commercial building and exempt from pre-emption under section 5 (a) of the N.-W.F.P. Preemption Act, 1950, vide his one judgment dated 15-1-1983 in the two suits. Mukhtiar Ahmad filed two appeals before the District Judge who after hearing the parties auu on going through the record held that as the suit Balakhana is a residential property, it is open to pre-emption but as the shop is not so and is used for commercial purposes, it is not pre-emptible under section 5(a) ibid. The learned District Judge, therefore, partially decreed the suit of the preemptor as regards Balakhana and as regards the shop, he dismissed his appeal, vide his judgment, dated 28.5-1983 delivered by him in the two appeals. Both the parties feel aggrieved by the judgment of the learned District Judge, therefore, they have preferred revision applications bearing C. Rs, Nos. 336, 337, 27; and 274 of 1983.
2. This judgment would dispose of these four revision applications.
3. ' It is contended on behalf of the vendees that as the suit property is situate in a Bazar and is used for commercial purposes, it is not open to pre-emption and the learned District Judge was wrong to partially accept the appeal of the pre-emptor as regards Balakhana. The learned counsel for the pre-emptor, on the other hand, contended that practically the suit property is a residential building and the two Courts below did not advert to this aspect of the case to consider it in its real perspective. He argued that if a property is found to have been predominantly built for the purpose of residential accommodation, it would be treated as such even if it comprises a shop. In order to reinforce his submission, the learned counsel referred to AIR 1923 L 262, I C 1920 616, AIR 1915 L 143, AIR 1925 L 544, PLD 1965 Pesh. 57 and 71 I C 145. In the light of these authorities, the. Learned counsel submitted that a look at the shape of the building will make it clear that the owner had built the building mostly for the purpose of his residence and thus, according to him, the suit shop cannot be separated to treat it an independent unit from the whole building, but is a concomitant of the building and is pre-emptible.
4. By going through the above authorities, I find that the learned counsel for the pre-emptor seems to be correct in what he has contended. Correct that the suit property is situate in the Bazar but a reference to the site 1 plan approved by the Municipal Committee (Exh. P. W. 4/1) will show A that what was upper-most in the mind of its owner was that he wanted to construct a residence for himself and the question of constructing shop was just incidental and he had no intention to make the building a commercial one. This fact is clear for more reasons than one. In the first place, the owner had built the major portion of the property as house for self-residence. If he built two small shops on the ground floor of the building, it would not be tantamount to his intention that he wanted to render the building a commercial unit. There is no dispute that after constructing the building, the family of the owner, was living in the major residential portion of the building and he did not use it for commercial purposes. The other feature of the case is that the path leading to the upper-storey which is residence is hardly two feet. This is the only path existing in the building. Now if the path is divided into two equal halves, obviously it will be very hard for one to go to the upper- storey used as residence over the shop. By taking this and other features of the case into consideration, one would be obliged to hold that the whole C building is indivisibly a compact unit and as its major portion is residence, it will not be fair to partition it, the more so as by partitioning it, the pre-emptor will not find the half portion of the residence worth-habitation as family residence. Confronted with this question, the learned counsel for the vendees was unable to furnish any just and satisfactory explanation for the division of the building.
5. On the view of the matter that I take, I accept revision applications bearing C. Rs, Nos. 336 and 337 of 1983 filed by pre-emptor Mukhtiar Ahmad and decree his both suits. As regards the price of the suit shop, the parties had agreed in the lower Court that it should be Rs, 15,000. The pre-emptor is, therefore, directed to deposit the said amount of Rs, 15,0u0 as price of the suit shop within four months failing which his both suits shall stand dismissed.
6. ' In view of the success of revision applications of the pre-emptor, the revision applications bearing C.Rs, Nos. 273 and 274 of 1983 filed by the vendees automatically fail and are dismissed. Parties shall bear their own costs.