This is a second appeal by Noor Hassan plaintiff.
2. The question for determination in this second appeal is whether `Safdar A.I Khan vendee- defendant is entitled to the, benefit of exemption from pre-emption under section 5 (c) of the N.-W.
F. P. Pre-emption Act,--1950. Mr. Khan Bahadar, Advocate learned counsel for the defendant -- respondent raised preliminary objection that the finding of the two Courts below on this point is concurrent and this being a question of fact cannot be gone into in second appeal. Mr. Fazal Elahi Khan, learned counsel for the appellant contends that the concurrent finding arrived at by the two Courts below with respect to the exemption under section 5 (c) of the pre-emption Act has been based on misreading and misinterpretation of the evidence of the parties and therefore can be set aside in. Second appeal. For this purpose the learned counsel took me through the entire record.
The facts of the case are that Khasra No, 1122 measuring 1 kanal 18 marlas situated in the area of village Nodeh Bala was previously owned by Abdul Ghaffar etc. By mutation No. 1142, the entire Khasra No was sold to Mir Muhammad of Tehkal Bala. Again by mutation No. 1352, entered on 6-11- 67 and attested on 18-2-1968, Mir Muhammad sold 1 kanal 8 marlas out of the entire khasra measuring 1 kanal 18 marlas to Safdar A.I of village Safaid Dheri for an ostensible value of Rs. 11,200.
A note in red ink by the Patwari on this mutation shows that the vendee is not owner in this village, that the area has been purchased for the cons--truction of house and that the construction is in progress. After this note, mutation No. 1352 copy (Exh. D. B.) had been attested on behalf of Mir Muhammad in favour of Safdar A.I for an area of 1 kanal 8 marlas out of 1 kanal 18 marlas.
3. On 17-2-1969, Noor Hassan of Safaid Dheri through his son Faqir Hassan attorney sued Safdar A.I vendee of village Safaid Dheri for possession by pre-emption of the land sold measuring 1 kanal 8 marlas out of Khasra No. 1122 total measuring 1 kanal 18 marlas by sale mutation No, 1352 attested on 18-2-1968. In para No. 3 of the plaint, the plaintiff averred that he has got a superior right of pre- emption as against the vendee basing his right of pre-emption on all the three legal grounds required for 'such pre-emption. In the same para it has been averred that the vendee (Safdar A.I) defendant is not a resident of the village where the suit land is situated nor he resides in the same village. He further added that he does no business in the village Nodeh Payan but runs a butcher shop at Landi Kotal, Khyber Agency. The defendant-vendee Safdar A.I contested the suit. In reply to para. No. 3, the defendant pleaded that he had purchased a part of the land with Abadi first and then constructed the second house on the area purchased. He also averred in the written statement that he is a permanent resident of Nodeh Bala in the area of Danish Abad, that he owns no land or residential house before the purchase in Nodeh Bala and, therefore, the land purchased by him is exempt from pre-emption.
4. The exemption is claimed under section 5 (c) of the Pre-emption Act, 1950. Section 5 (c) of the Pre-emption Act is reproduced below:- "5. No right of the pre-emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem:-
(a) . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . .
(c) agricultural land or village immovable property, consisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for cons--tructing a house for his own occupation."
It may be noted that the trial Judge framed issue No. 3 on this point which is:-- "Whether the sale in dispute is exempt from pre-emption under section 5 (c) of the Pre-emption Act, 1950?"
5. On behalf of plaintiff (P, W. 1), Morad Khan Patwari ands (P. W. 2) Faqir Hassan son and attorney of the plaintiff were examined. Morad Khan Patwari produced the revenue record relating to the suit land including khasra girdawari from Kharifri964 till Rabi 1969 (Exh. D. A), and deposed that plaintiff's land is contiguous to the suit land. The evidence of Faqir Hassan P. W. 2 relating to the point under discussion is that the suit land is situated in Danish Abad which is a part of village Nodeh, Bala, that in this part, other areas have also been sold for cons--truction of houses. He added that the defendant has no house for his own-residence, and be lives with his father. He also admitted that Ajab Koroona is a part of Danish Abad. D. W. 1 Safdar A.I after giving the history of the purchase of the suit land and construction of the house over it deposed that the area purchased is situated in village Nawankili that he owns no house of his own nor he owns village immovable property. He added that he permanently resides in Danish Colony of Nawankili and occupied a house owned by Ajab Khan on payment of rent of Rs. 25 per month. He stated in cross-examination that he runs a butcher shop in Landi Kotal but does not reside there. He produced rent receipts Exh.
DX/1 to DX/3. Ajab Khan has been examined as D. W.
2. He testified that he owns house property in Danish Abad which .He has rented. He stated that the defendant occupies one of his houses since 31 years at the rate of Rs. 25 per month for which he correctly issued receipts Exh. DX/1 to Exh. DX/3.
Ajab Khan further added that the defendant has no house of his own and he lives permanently in his rented house. D. W. 3 Mahaz Khan supports the evidence of Ajab Khan. This witness stated in cross-examination that he himself belongs to Safaid Dheri and that the defendant also belongs to Safaid Dheri. In re-examination, he stated that the defendant is the original resident of village Safaid Dheri. Khaista Khan is the 4th witness examined on behalf of the defendant. He deposed that the defendant lives in Danish Abad since three-four years and had left his village permanently. He added that the defendant owns no property, house or land.
6. From the perusal of the above evidence I am of the view that the two Courts below have correctly arrived at a concurrent finding of fact that the defendant-respondent Safdar A.I is a resident of Danish Abad-cum---Nawankili although he originally belongs to village Safaid Dheri.
The solitary testimony of Faqir Hassan attorney of the plaintiff that the defendant-respondent lives with his father at Safaid Dheri is not sufficient to rebut the evidence of four witnesses including three independent witnesses produced on behalf of the defendant and nor it disproves the fact that the defendant-respondent resides in Danish-Abad-cum-Nawankili.
7. The question now for determination is whether once the defendant --respondent has been proved to be residing in village Nodeh-cum---Danish Abad, he as such is entitled to the benefit under section 5 (c) of the Pre-emption Act, which has already been referred to above. In Sayed Haider Shah v. Mukhtar Hussain Shah and others (PLD 1963 Lah. 548) the observations in para 12-A (at page 562) may be reproduced with benefit :-- "12-A. The principal word which has to be interpreted is the word `residence'. The meaning of the word has not been limited by any statutory definition. In the absence of any statutory definition the only place where an authoritatively accepted meaning can be sought is in a standard dictionary."
"As regards the question whether Mustaqim Shah is entitled to the benefit of section 5 of the Pre- emption Act, the question hinges on true interpretation of the word "resident". As already indicated, this wore has not been defined in tile Pre-emption Act. The term "residence" is naturally a flexible one, and the question arise whether the term should receive a larger or more restricted meaning. It is well settled proposition of law that if a particular word is no defined then the Court should try to find the intention of the Legisla--ture in framing the particular provision in which the word is used.
Applying this test, I am of the view that the word "residence" does not mean residence for a particular period but would mean in case of a person who has original place of residence ail intention to abandon that place of residence and live at another place at leas for the time being for sometime to come. It is also well established principle of law that every person is deemed, in law, to have dwelling or place of residence, and where he has none, he will be deemed to dwell at the place at which he may be actually staying at the time. If any authority is needed in support of this view reference may be made to the decision in Farnandez v. Wray I L R 25 Bom.
176. As already indicated, Mustaqim Shah admittedly is originally resident of Ziarat Kaka Sahib and as such in his case to become a "resident" of village Akora Khattak he must prove by cogent evidence that he had abandoned his original residence and intended to make Akora Khattak as his residence for the time being at least . . . . ."
PLD 1962 Lah. 502), the observation of the learned Judge in para. 8 at page 506 is reproduced below:- "8. Erle, C. J., in Neef v. Muttar 31 L J C P 359 has stated with clarity that "the word `residence' has variety of meanings according to the statute (or document) in which it is used." What the Courts are called upon to in a situation such as this is to discover that meaning. Cotton, L. J., in Re; Bowlie Ex parte Preull (50 L J Ch. 386) has recognized that the word "residence" is an ambiguous word and may receive a different meaning according to the position in which it is found. It is a word susceptible of several meanings. I including both temporary residence or" permanent domicile, and the meaning in each case has to be determined in the context on a view of the purpose of the statute. It can mean a dwelling place as distinguished from a , mere locality of existence. The word is to, receive a larger or more restricted meaning according w what the Court believes the intention of the Legislature to have been in framing the particular provision in which the word is used . . ., ."
"Reside: Residence. "Signifies a man's abode or continuance in a place."
(Cowel).
The word "reside" where there is nothing to show that it is used in a more extensive sense, denotes the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink and sleep" (per Bayley, J. R. v: North Curry. (4 B & C 959).
The word "reside" is used in two senses-one, constructive, technical.' legal; the other, denoting the personal, actual habitation of indivi--duals duals. When a person has a fixed abode, where he dwells with hiss family, there can be no doubt as to the place where he resides. The place of his personal and legal residence is the same, so that when a person has no permanent habitation or family, but dwells in different places, as he happens to find employment, there can be no doubt as to the place where he resides. He must be considered as residing where he actually or personally resides. But some individuals have permanent habitations where their families constantly dwell, yet pass a great portion of their time in other places. Such persons have a legal residence with their families and a personal residence in other place; and the word "reside" may with respect to them, be used to denote either their personal or their legal residence."
8. Relying upon the judgments referred to above and the principle of law laid down to "Law Lexicon of British India", I hold that in view of the evidence on record, the defendant-respondent Safdar A.I has permanently abandoned his original village and has settled at Danish Abad. As such he is proved to be a resident of village Nodeh-cum-Danish Abad and therefore is entitled to the exemption under section 5 (c) of the Pre-emption Act, 1950.
9. In conclusion, while maintaining the judgments of the two Courts below, I find no merits in the second appeal and dismiss the same. As. The question of law was involved, I order the parties to bear their own costs.
K. B. A.