S.N.MODI, J. - (1.) THE suit for pre -emption having been decreed by the court below, the defendant -vendees have preferred this appeal on the ground that the property sought to be per -empted, namely, the roof of the shops, being indivisible part of the shops, no right of pre -emption accrues to the plaintiff -respondents under Section 5(1)(a) of the Rajasthan Pre -emption Act, 1966 The learned District Judge has held that Section 5 of the said Act is not applicable to the property in dispute. Mr. M.B.L. Bhargava, the learned advocate, challenges the correctness of the above finding.
(2.) IN order to appreciate the point involved in this appeal, it is necessary to narrate the relevant facts which are no longer in dispute. Ramdayal and his sons owned three shops at Alwar in the northern line on west southern corner of Kedalganj market. The said three shops have one common stair -case leading to the roofs of all the three shops. Each shop has a verandah in its front comprising of a chabutri covered with a tin -shed. One of the shops with tin -shed verandah in its front was sold by Ramdayak and his sons to the plaintiff's Nos. 1 to 3 by sale -deed dated 18 -12 -66. Similarly, the other two shops with tin -shed verandahs were sold to the plaintiffs Nos. 4 to 6 and Gabduram vide sale -deeds dated 24 -1 -68 and 24 -3 -67 respectively. In all the three sale -deeds, it was specifically stated hot the roofs of the shops will continue to belong to the vendors and vendees shall have no right or interest therein. It was further stated in all the sale -deeds that vendors at their own cost would erect a pucca verandah in place of the tin shed verandah in front of each shop and the roof of the pucca verardah so constructed shall be the property of the vendors and the vendees shall have no right therein. Subsequently, the vendors, Ramdayal and his sons vide sale deed dated 24 -11 -70 sold their rights on the roofs of their three shops as well as the staircase to the appellant -defendants. The plaintiff thereupon instituted the present suit for pre -emption claiming possession of the roof and the stair -case would to the defendant -appellants. The suit was resisted by the defendant -appellants on various grounds alleging inter -alia that the property in dispute is a shop within the meaning of Section 5(1)(a) of the Rajasthan Pre -emption Act, 1966 and as such exempted from being pre -empted. It was also pleaded that the defendants had purchased the said property with a view to use it as a shop for selling goods. The learned District judge on consideration of the evidence led before him recorded the finding on this point in the following words: In the present case both the properties, i.e. the shops and the disputed roof and the stair -case have been sold separately and they have been treated as divisible properties. That being so, the disputed roof or the stair -case cannot be treated as a part of the shops for the purpose of considering application of Section 5 of the Rajasthan Pre emption Act. In fact in such cases where the roof is quite open, I think such roof can be treated as a land only and it cannot be treated as a part of the building. Section 5 of the Act only exempts the buildings used for business or the other purposes mentioned in the Act. The disputed roof cannot be termed as a building and I am fortified in taking this view by the observations of their lordships of the Oudh Judicial Commissioner's Court in a case reported in 45 Indian Cases 585 wherein it was observed that artificial structures such as clad massonary roofs of the shops are land within the meaning of that expression, as used in Section 4 of the Easement Act. Although the case related to the provisions of the Easement Act, but 1 think the pro -position is applicable alto to the facts of the present case and it can definitely be said that the disputed roof is only a land and can by no stretch of imagination be termed as a shop or other similar building I therefore hold that Section 5 of the Rajasthan Pre -emption Act is not applicable to the facts of the present case. Arguing the appeal, Mr. Bhargava has drawn my attention to 7(Ka) of the plaint, the relevant portion of which reads as under: It is strenuously contended by Mr. Bhargava that because the plaintiff -respondents clearly admitted in the plaint that the roof was indivisible part of the shop, it cannot be treated anything else than a shop within the meaning of Section 5(1)(a) of the Rajasthan Pre -emption Act The leraned Counsel emphasised that in a treating the roof to be a land, the learned District Judge has made out a case contrary to that set up by the plaintiffs in their plaint. It is further argued that the roof on account of it being an indivisible part of the shop must be held to be exempted from the claim of preemption under Section 5(1)(a) of the Rajasthan Pie -emption Act and consequently, the suit for preemption in respect of the roof and the stair -case which is being used solely for the purpose of going to the roof could not be the subject -matter of preemption. Mr. Bhargava in support of his arguments placed reliance on Jaithumal v. Jankidas and Ors. AIR 1917 Lah 413 and Jhabbanlal v. Mohammed Khan and Anr. AIR 1925 Lah 57. The leraned Counsel for the respondents, in reply, supported the judgment and the reasoning of the learned District Judge.
(3.) IT may be pointed out at the very out -set that none of the rulings cited by Mr. Bhargava of the learned District Judge in his judgment deals with the point involved in this case and are thus wholly irrelevant.;