MAHENDRA BHUSHAN - (1.) THIS is a vendees appeal in a per-emption suit against the judgment and decree of the learned Additional District Judge No. 2, Jaipur City, Jaipur dated February 20, 1976.
(2.) A house 'almashhoor' Ghiyawalan-ki-haveli is situated in Chowkari Ghat Darbajd, Rasta Kothi Regran in the city of Jaipur. Venders Badri Narain and Smt. Gyarsi Devi and Nand Kishore, plaintiff were co-sharers of the said haveli and Nail. Chowk and Pol were in common enjoyment of the above referred two co-sharers and other co-sharers. Badri Narain and Smt. Gyarsi Devi were arrayed defendants No. 1 and 2 in the suit and shall be hereinafter described as the vendors, they sold out their respective portion of the house for an amount of Rs. 19857/- to the appellants who were arrayed as defendants No. 3 to 5 in the suit, under a registered sale-deed dated July 24, 1972 without any prior offer by way of notice under section 8 of the Rajasthan Pre-emption Act, 1967 (hereinafter referred to as the Act) and even without otherwise offering the property to the plaintiff pre-emptor, Nand Kishore. The per-emptor filed a suit for pre-emption inter alia on the ground under Section 6 (1) (i) and (ii) of the Act i.e. he was a co-sharer in the property transferred and the staircase, Chowk and Pol were such amenities which were common to his property and the property transferred The suit was contested by the vendees as well as vendors who raised common pleas, denying any accrual of right of pre-emption to the pre-emptor over the portion of the house sold by the vendors to the vendees. They also came with a plea that the portions in dispute were really sold for a price of Rs. 19897/- and not for Rs. 17897/- as alleged by the pre-emptor and that the property was offered to the pre-emptor for Rs. 19897/- but the pre-emptor could not manage for the sale amount of the property and as such by his conduct has waived his right to pre-empt the property. On the pleadings of the parties the learned trial Court framed the following issues : 1. Whether the plaintiff is a co-sharer with defendants No. 1 and 2 in the property in dispute? 2. Whether the Chowk, Pol arid Nall facing West are joint between the plaintiff and defendants No. 1 and 2 and the plaintiff has a right of preemption on the disputed property? Whether the property was actually sold for Rs. 17897/- and the plaintiff is entitled to pre-empt the property for that amount? Whether the plaintiff had refused to purchase the property, therefore, he is now estopped to file this suit? Whether the suit has not been filed within limitation as the requisite Court fee was paid on 29.8 1973? Relief? 3. After trial the suit of the pre-emptor for pre-emption of the property in dispute was decreed and it was ordered that on payment of the amount of Rs. 19897/- within a period of three months the pre-emptor will be substituted in the sale deed in place of vendees who shall hand-over the possession of the property to the pre-emptors. 4. Mr. Suroliya, learned Advocate for the appellant, has not challenged that the pre-emptor is a co-sharer in the prop3rty transferred and that the Staircase, Chowk and Pol are such amenities which are common to the property of the pre emptor and the property transferred and as such a right of preemption accrues to the pre-emptor. But he has raised a two fold submission, namely, that in the property transferred by the vendors to the vendees there is also a shop and the right of pre-emption does not accrue upon the transfer of a shop by virtue of section 5 (1) (a) of the Act and that a right of pre-emption is a very week right and the vendees can defeat this right by all legal means available to them. Because a right of pre-emption does not accrue relating to a shop and under the same sale-deed the vendees purchased the shop as well as the other portion of the house, he became a co-sharer of the same class as the pre-emptor and, therefore, the suit for pre-emption cannot be decreed. Mr. Mathur and Mr. Bhandari, learned Advocates for the vendees, on the other hand, contended that the house is residential house and merely because a small apartment in the ground floor is used as a shop, it cannot be said that apartment is a shop and a right of pre-emption does not accrue relating to it. It is further contended that even otherwise the apartment which is described as shop is an insignificant portion of the whole building and of an inconspicuous description and the property for purpose of pre-emption, is indivisible and has to be pre-empted as a whole. Lastly, it is contended that the pre-emptor having more things like Chowk, Pol, Staircase and other amenities joint and common to his property and the property transferred, then the vendees had got preferential right of pre emption than the right of vendees, if any. 5. It may be stated at the very out-set that the learned trial Court has not taken into consideration the implications of section 5 and proviso to sub-sec. (1) of Section 11 of the Act. The pre-emptor in the plaint itself came put also with a case that in the property transferred by the vendors to the vendees and relating to which a right of pre-emption is claimed by the pre-emptor was also a shop facing East. Section 5 of the Act has been carved out as an exception to section 4 of the Act under which the right of pre-emption accrues to the persons mentioned in sec. 6 of the Act upon the transfer of any immovable property. Under Section 5(1)(a) of the Act the right of pre-emption does not accrue upon the transfer of a shop, Katra, Sarai. Musafirkhana, Dharamshala, Temple, Mosque or other similar buildings. We are presently concerned only with a shop. Under the proviso to sub-sec. (1) of section 11 of the Act if the plaintiff has a right of pre-emption in respect of only a portion of an immovable property transferred he can file a suit for pre-emption only relating to such property and it is not necessary for him to file suit for the whole of the property transferred. Therefore, if under the same sale-deed in the immovable property transferred is also such property which is described in Sec. 5 of the Act, relating to which no right of pre-emption accrues, a pre-emptor has to confine his suit only to portion of such property relating to which a right of pre-emption accrues to him under section 6 of the Act. Though the Act does not provide as to how consideration entered in the sale-deed is to be aportion-ed in between the property pre-emptible and that portion of the property which is not pre-emptible, but in such cases it is the duty of the Court to make an enquiry and find out as to what was the market value on the date of the sale of the property which is not pre-emptible and of the property which is pre-emptible. In Mst. Zainab Bibi vs. Umar Hayat Khan (i) the two eminent Judges of the Allahabad High Court Sulaiman, C J and Bennet J. have observed "Apparently the idea was that if a pre-emptor has a right to pre-empt certain properties, the vendee cannot by taking a sale-deed of that property, along-with the other property, whether movable or immovable, deprive the pre-emptor of his right to pre-empt that property as to which he has a right. If this were not the law, then a vendee by taking a sale-deed of pre-emptible property along with any movable property would prevent preemption altogether .... In such a case the integrity of the bargaining will have to be broken and the claim declared for the pre-emptible part only. Of course, in such cases the proportionate price has to be ascertained and paid". 6. The Act does not define the term 'shop' as used in Section 5 (1) (a) of the Act Mere use of the word 'shop' in the sale-deed may alone may not be sufficient to hold that a 'shop' has been transferred and whether a building is a 'shop' or not, is a question to be decided by the Court upon the particular circumstances of every case. The situation of the property, the nature and its construction, the primary or main purposes for which the building was constructed and was being used at the time of the sale are some of the relevant considerations in holding as to whether a property which is described as a 'shop' is in fact a 'shop' or not If a property at the time of sale is being used for sale and purchase of goods, for other trading activities then it will be a 'shop' for the purpose of section 5 (1) (a) of the Act. A reference may be made to Jhabban Lal vs. Muhammad Umar(2), Sandhi vs. Khairuddin(3), Wadhawa Mal vs. Lachman Das(4) and Sant Singh vs. Gobind Ram(5). In para 1 of the plaint it is the averred that in the property transferred is also included a shop facing East. In the sale-deed Ex 17 which is of the property transferred by the vendors to the vendees and relating to it a right of preemption is claimed by the pre-emptor, at page 6 it has been mentioned as under : Mrrjh dwaV ij ,d nqdku ,d xzg dh iwoZ eq[kh gS ftlds vxo, pcwrjk fcdk QhV cuk gqvk gSA** Though the above referred two averments in the plaint were admitted in the written statement bat surprisingly the learned trial Court did not take into consideration section 5 (1) (a) of the Act and allowed pre-emption for the whole of the property transferred under Ex. 17. Notwithstanding the fact that it was not denied in the written statement of the vendees and the vendors that a shop exists and is part of the transferred property, as already observed above mere nomenclature of an apartment as a shop is not sufficient to hold that a shop was transferred and it is for the Court to decide on the various considerations as to whether in the property sold some of the property is also included which is not pre-emptible. The main building appears to be are sidential building. It is not known as to whether in Rasta Kothi Regran, Chowkari Ghat Darbaja where the shop in dispute is situated, there are other closers of shops, as to whether it is a market in the real sense and since when the apartment described as shop is being used as a shop. Therefore, to me, it appears that the trial Court has left a very important point to be decided and has also failed to frame proper issues. I have already stated above that a vendee can defeat the right of preemption by all legal means which may be available to him. Under Section 15 of the Act before a decree for pre-emption can be passed in favour of any person he must have a subsiting right of pre-emption at the time of the decree and. therefore, till a decree is passed by a Court a vendee can improve his rights and as also observed above can defeat the rigth of the pre-emptor by all legal means available to him. It is contended by Mr. Saroliya, learned Advocate for the vendees, (appellants) that because under Ex. 17 the sale-deed, a portion of the property i.e. a shop was also purchased relating to which no right of pre-emption accrues to the pre-emptor, the vendees have become co-sharers of the same class to which the pre emptor claims to belong and, therefore, the suit for pre-emption even for the residential portion of the house could not have been decreed. In support of his submission Mr. Saroliya placed reliance on Kewal Krishan vs. Jain Brotherhood, Ludhiana(6). In that case in head-note it was held "As a purchase property after the institution of a suit for pre-emption, which has the effect of giving the vendee an equal right of preemption with the pre-emptor, is sufficient to defeat the suit, there can be no reason why a purchase, simultaneous with the purchase of the house in dispute should not defeat the pre emptor's title". But no plea was taken in the written statement that the vendees by purchase of a shop have become co-sharers of the same class as the pre-emptor and, therefore, in the absence of any pleading the argument of the learned Advocate for the vendees to the effect that by purchase of a shop which, is not preemptible property, he has become co-sharer of the same class, cannot be accepted. The result of the aboye discussions is that without framing the relevant issues and deciding them the suit for pre-emption could not be decreed. I will frame the following issues in the case 1. Whether one of the apartment in the property transferred by the vendors to the vendees is also a 'shop' and as such under section 5(1) (a) of the Act the right of pre-emption does not accrue relating to it to the pre-emptor? 2. If the answer to the above issue is that it is a shope then whether it is insignificant portion of the property transferred and as such the entire pro-perty is pre-emptible? 3. In case it is held that one of the apartment is a shop' and as such is not pre-emptible then what was the proportionate market price of the shop on the date of the sale?
(3.) THE above issues shall be numbered as issues No. 4, 5 and 6 and existing issues No. 4, 5 and 6 shall be re-numbered as issues No. 7, 8 and 9. Ill, therefore, accept the appeal, set aside the judgment of the learned trial Court, remand the case under O. 41 R. 23A C. P. C to the trial Court and direct it to re admit the suit under its original number in the register of Civil Suits and try the additional issues and the evidence recorded during the original trial shall, subject to all just exceptions be the evidence during the trial after remand. I wIll direct the parties to appear before the learned trial Court on December 11, 1980 for the purpose of receiving the direction of that Court as to further proceedings in the suit. The costs of this appeal shall abide the result of the suit.;