ABDUL FATEH Versus ABDUL SATTAR
1. WALI MUHAMMAD KHAN, J. ‑Haji Abdul Fateh, appellant, through leave of the Court, calls in question the judgment dated 5‑11‑1990 passed by a learned Division Bench of the Peshawar High Court, whereby R.FA. No.24 of 1984 filed by Haji Abdul Sattar, respondent, was accepted, the judgment and decree of the trial Court dated 3‑6‑1984 was set aside, and the suit of the plaintiff/appellant dismissed.
2. The facts of the case, in nutshell, are that Haji Abdul Fateh, appellant herein, filed a suit for possession through pre‑emption of land measuring 2 Kanals 2 Marlas out of several Khasra numbers described in the heading of the plaint situated in village Mahal Tarai, Tehsil and District Peshawar against Haji Abdul Sattar vendee/defendant (respondent herein) on the grounds of co‑sharership and ownership in contiguous property: It was specifically mentioned in the plaint that the property has wrongly been described as Sarai in the sale deed. The same was duly contested and the defendant/respondent in his written statement claimed exemption on the plea of the property being situated within the Municipal limits as well as it having, been used as Serai, mis-joinder of causes of action, partial pre‑emption and denied the superior right of pre‑emption of the plaintiff/appellant. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated 3‑6‑1984, decreed the suit of the plaintiff/appellant on payment of Rs.1,20.000. Not content with the same, the vendee/respondent preferred Regular First Appeal before the High Court which was accepted through the impugned judgment resulting in the dismissal of the suit of the plaintiff/appellant and hence the instant appeal through leave of the Court. . .
3. We have heard Mr. S. Safdar Hussain, Advocate, for the appellant; Mr. M. Sardar Khan, Advocate, for the respondent; and have perused the record of the case.
4. The, plaintiff;/appellant is a co‑sharer and contiguous owner of the suit land as per statement of Pir Bakhsh Patwari P.W.2 supported by the Jamabandis placed on the file to which presumption of truth is attached and he defendant/respondent is not possessed of any right of pre‑emption. The again controversy between the parties, however, is whether the sale transaction of question is exempt from pre‑emption and whether the suit is hit by the principle of partial pre‑emption as observed by the High Court.
5. To resolve the controversy it would be advantageous to refer to the relevant provisions of the pre‑emption law defining the pre‑emptible property, the right of pre‑emption and the sale of properties exempted from pre‑emption.
6. THE N: W.F.P. PRE‑EMPTION ACT, 1950
7. Section 3. Definitions. In this Act, unless a different intention appears from the subject or context:‑‑ . .
(1) "Agricultural land" shall mean land as defined in the Punjab Alienation of Land Act, 1900, as amended by Act I of 1907, but shall not include the right of a mortgagee, whether unusufructuary or not, in such land;
(2) "village immovable property" shall mean immovable property within the limits of a village other than agricultural land:
(3) "urban immovable property" shall 'mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town‑‑‑
(a) if so declared by the Provincial Government by notification in the official Gazette; or
(b) if so found by the Courts; '
(4) sale shall not include a sale in execution of a decree for money or an order of a Civil, Criminal or Revenue Court or of a Revenue Officer;
(5) any expression which is defined by section 4 of Punjab Land Revenue Act,, 1887, shall, subject to the provisions of this Act, have the meaning assigned to it in the said section.
8. Section 4. Right of pre‑emption.‑‑ ‑The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property.
9. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale.
10. Section 5. Property exempted from, pre‑emotion.‑ ‑‑No right of pre emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem‑‑
(a) a shop, Serai Katra or club
(b) a Dharamsala, mosque, church or other similar charitable institutions or buildings;
(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 constructing a house for his own occupation;
(d) agricultural land or urban immovable property, consisting of an area measuring not more than ten Marlas purchased by a resident of the town in which such land or property is situated, where he neither owns a house nor a vacant site measuring more than five Marlas, for constructing a house for his own occupation.
11. Section 7. Power of Government to exempt transactions from pre emption.‑‑‑(1) Notwithstanding anything contained in this Act, a right of pre‑emption shall not exist in respect of any sale made ‑by or to the Government or by or to any local authority or to any company under the provisions of the Land Acquisition Act, 1894, or in respect of any sale sanctioned by the Deputy Commissioner under section 3(2) of the Punjab Alienation of Land Act, 1900.
(2) The Provincial Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre emption shall exist.
12. Section 12. Persons entitled to pre‑empt.‑‑‑ The right of pre‑emption in respect of agricultural land, village immovable property and urban immovable property shall vest firstly, in the co‑sharers in such land or property, if any; secondly, in a participator in immunities, appendages, such as a right of way or a right to discharge water; thirdly, in owners of contiguous property, if any; fourthly, in a landlord when the sale is by an occupancy tenant of his right in tenancy.
13. The above‑quoted provisions of law make it amply clear that the right of pre‑emption is conferred upon the prospective pre‑emptors in order of preference as enumerated in section 12 in: respect of agricultural land, village immovable property and urban immovable property as defined in section 3 of the Act which combine all conceivable properties either in the shape of agricultural land or village immovable property or urban immovable property unless, of course, the vendees are able to establish that the sale of any such land or property is exempt under any provision of section 5 or the Provincial Government has specifically exempted the sale of such land or property from the enforcement of right of pre‑emption under section 7 of the Act. The record of rights placed on the file reveals that the suit Khasra numbers are forming part of the estate of village and is assessed to land revenue though part thereof is shown under Abadi as well. The same is still joint and no partition by metes and bounds between the co‑sharers has taken place. Consequently, the land purchased through the impugned sale transactions included land partly vacant/Banjar and partly under Abadi. It, therefore, falls partly under agricultural land and partly under village immovable property. It is also the case of ~he vendee/respondent that the suit land has been included in the Municipal limits. Be that as it may, even if the ‑same, wholly or in part, is included in the urban area still it would be covered under the definition of urban immovable property according to subsection (3) of section 3 of the Act and pre‑emptible. The land/property forming part of the sale transactions in dispute is fully covered under section 3 and is pre‑emptible. There is nothing on the record to show that the Provincial Government in the exercise of powers finder section 7 of the Act has exempted from pre‑emption the suit land or i the sale transactions in question. It is also not the case of the vendee/respondent that he had purchased the land/property for constructing a house for his‑own occupation to claim exemption under sub‑clauses (c) and (d) of section 5 of the Act which could not be attracted even if there was such a claim because the area purchased is more than two Kanals. The only ground for exemption worth consideration therefore is sub‑clause (a) of section 51 through which the sale of Serai has been exempted from pre‑emption. The word `Serai' has not been specifically defined in the Act itself, however, it came up for consideration before this Court in case. Haji Mian Muhammad v. Ghulam Mustafa (PLD 1973 SC 394) and the observations made in this respect are as follows:‑‑
14. "The Act does not define the terms used in the two exemption clauses and, therefore, the question is what meaning should be attached to the term `Serai' as used in clause (a) of this section. In the absence of an interpretation clause embodied in the statute itself, the general rule would appear to be, as observed by Lord Esher M. R., in Clerical, etc., Assurance Co. v. Carter, that the words are presumed to have been used in their popular sense. The same rule was stated by Lord Tenterden in Attorney‑General v. Winstanley, namely; that "the words of an Act of Parliament which are not applied to any particular science or art are to be construed as they ate understood in common language'. Critical refinements and subtle distinctions are to be avoided, and the obvious and popular meaning of the language should, as a general rule, be followed.
15. Understood in the popular sense, as used in common language, the word `Serai' has always been regarded as meaning a building or premises used for the temporary accommodation of travellers, where the general public has access to the interior. This meaning flows from the etymology of the word which is of Persian origin and in its strictly correct literal form should be called Sar‑e‑rah, i.e., on the road side. It seems to us that the nearest equivalent in the English language to the word `Serai' would be the word `inn'.
16. In the dictionary called Feroz‑ul‑Lughat, published by Feroze Sons Limited, the word `Serai' has been given three meanings, namely, Ghar, Makan, Manzil. It would appear that a `Serai' by its very nature, has to be a residential premises although it is not a house in the accepted sense of the word, meaning thereby a private residence. The word `manzil' as indicating a stage in the journey of a traveller, would appear to connote the popular sense of the word `Serai'.
17. As early as 1895, in the case reported as Mst. Nur Jahan v. Aziz‑ud- Din and others, the difference between a Tawela and Serai was spelt out, and it was clearly indicated that an essential ingredient of a Serai is temporary accommodation for travellers. This view was endorsed in Feroz‑ud‑Din v. Rahim Bakhsh, in which it was observed that "the mere fact that some of the rooms are rented out to more or less permanent tenants and others to chance‑visitors does not necessarily convert what was originally a Tawela into a Serai". It was found that the building in suit was not built as a Serai and there had not been prolonged and unmistakable user as Such. The judgment does not contain detailed discussion of the ingredients which would constitute a building into a Serai, but the observations made by the learned Judges leave no doubt that, in their opinion, a Serai was clearly one which catered for temporary accommodation of travellers and it was for this reason that renting out rooms to more or less permanent tenants was regarded as not converting a Tawela into a Serai.
18. Years later, in Aya Ram and another v. Parshotam Lal and others it was held that the essentials of a Serai seem to be that the public have a general access to its interior and that it is used for the temporary accommodation of travellers.
19. Commenting upon the term Serai, in his book on the Punjab Pre emption Act, 1913, T.P. Elks writes as under:‑‑
20. "Platts defines Serai as house, mansion, palace, temporary home for travellers, caravansaray, inn.
21. The common form of a Serai is well‑known, consisting as it does of a square of buildings with a main entrance, used for temporary resting for travellers.
22. The term as used in the Punjab generally applies only to buildings fulfilling the secondary meanings given by Platts."
23. It will be seen that the secondary meaning, alluded to by Eilis, is `temporary home for travellers, caravansaray, inn.'
24. Elaborating the subject further, the learned Author goes on to say:‑‑
25. "The difficult question that will arise is, 'whether a Serai in the meaning of the Act includes such buildings as a club or a European hotel, or what are growing rapidly in numbers in large cities; so‑called native hotels ......
26. In the absence of some clear definition it is impossible to lay down any general rule for guidance. Each case will have to be judged on its merits, and I take it that the criterion will have to be the main existing use to which the building is put and the object with which it was built.
27. If its principal use is for the accommodation temporarily of travellers, the establishment being run on commercial lines, then it will be a Serai, and in that view a hotel would fall under the I definition."
28. It will be seen that both on authority and in popular usage the term `Semi' has throughout been understood to mean a commercial establishment, used for the temporary accommodation of travellers, with public at large having access to its interior.
29. Needless to emphasise, that the burden of proof to claim exemption from pre emption is on the vendees and unless it is affirmatively established that the property purchased falls within any of the clauses enumerated in section 5, the right of pre‑emption cannot be denied to the pre‑emptor. In the case in hand, excepting the mention of Serai in the sale‑deed in question, there is no other evidence on the file to show that the property purchased was ever used as Serai or was being used as such either in whole or in part at the time of the sale transaction. The word `Serai' does not find mention in the record‑of‑right exhibited on the file nor the defendant/respondent has produced any certificate of registration from the relevant authorities to show that the suit property was used as a Serai. Strangely enough, the vendee/respondent even in his statement in Court as D.W.1 never said a word about the use of the suit property as serai at the time of its sale or at any time prior thereto. He simply stated that he purchased one Kanal one Marla in the shape of Serai: A. Local Commissioner was appointed for determining the market value of the suit property whose report is available on the tile. According to this report the description of the property is recited as under:‑‑
30. This report was not objected to by the defendant/respondent which has clinched the matter against hires qua his plea of exemption under section 5(a) of the Act ibid on the ground of the suit property being Serai. We have, therefore, no hesitation in holding that the. vendee/respondent has failed to bring his case within the ambit of section 5 of the Act and the suit land is not exempt from the pre‑emption.
31. As regards partial pre‑emption, suffice it to say, that the plaintiff/appellant has sued for possession of the property comprising an area of 2 Kanals 2 Marlas comprised in Khasra numbers mentioned in the sale‑deed purchased by the vendee/respondent vide registered sale‑deeds dated 7‑8‑1977 and 9‑8‑1977 and had annexed the copies of the sale‑deeds alongwith the plaint. He prayed for substituting himself for vendee/respondent for all the rights and properties acquired through the impugned sale‑deeds, and the suit , land was not hit by the principle of partial pre‑emption.
32. Resultantly, we accept this appeal, set aside the impugned judgment of the High Court and restore that of the trial Court with the result that the suit of the plaintiff/appellant stands decreed as per the judgment of the trial Court. The appellant shall deposit the amount of Rs.1,20,000 the consideration for the suit land fixed by the trial Court, within three months from the announcement of this judgment if not already deposited failing which his suit shall stand dismissed. It is evident from the report of the Local Commissioner that the vendee/respondent has made new construction over the suit land for which he has assessed Rs.1,30,000 as the expenditure incurred thereon. The appellant/pre‑emptor legally has no right to the aforesaid additional construction but to ask the vendee/respondent to remove the same before his physical dispossession would be very harsh upon him, we therefore, consider it just and equitable to order the appellant to pay the value thereof amounting to Rs,1,30,000 provided the vendee/respondent is willing to accept the‑ same amount as costs of the new superstructure though he did not object to the report of the Commissioner during the trial of the suit. In case he is not willing to accept the costs of the new Abadi he shall be at liberty to remove the superstructure of the new Abadi within six months of the filing of execution application. In case the vendee/respondent is willing to accept the costs of the improvement the executing Court shall allow three months time to the appellant to deposit the amount of Rs.1,30,000 and in case the appellant makes default in depositing of the said amount his suit shall stand dismissed.
33. M.BA./A‑988/S Order accordingly.