Jagan Nath and another vs Girdhari Lal and others

Jaswant Singh, J.

(1) This civil first appeal is directed against the judgment and decree dated 25th April, 1969 of the learned Sub Judge, (A. D. M.) Jammu,

dismissing the plaintiffsappellant's suit for preemption of a vacant site situate in Chowgan Fattu, Jammu.

(2) The facts relevant for the purpose of this appeal are :

The Bishan Singh, defendantrespondent No. 2 sold the suit property in favour of Shri Girdhari Lal, defendantrespondent No 1 by virtue of sale

deed dated 8th March. 1963 for an ostensible sale consideration of Rs 4,500. The plaintiffsappellants thereupon brought a suit on 28th November,

1963, for possession of the property claiming that they had a right of prior purchase in respect thereof in preference to defendantrespondent No.

1, as (1) three chimney holes of their house which was dominant heritage opened on the suit property which was servient heritage, (2) the western

wall of their house being joint with the suit property, they were cosharers of the property and (3) their house was contiguous to the suit property.

(3) The suit was resisted by the respondent No 1 interalia on the ground that the suit property which had a ""Chapper"" on it at the time of the sale

was used as a shop, that he wanted to demolish the ""Chappar"" and construe; a new shop thereon when the appellants fotestalley him by bringing

the suit and that the sale of the suit property was exempt from preemption. It was further pledged by the defendant that though the chimney holes

opened towards the suit property they have been constructed recently.

(4) On the pleading of the parties the following issues were framed by the learned trial court :

(1) Whether the plaintiffs have got a right of prior purchase with regard to the property in dispute? O. P. P.

(2) Whether a sum of Rs. 4,500/ mentioned as price in the sale deed in question was actually paid ? O P. D.

(3) In case Issue No. 2 is not proved what is the market price of the property in dispute ? O. P. D.

( ) Relief. O. P D.

(5) On consideration of the evidence led by the parties, the learned trial Court found that it was not possible to come to a definite conclusion as to

when chimney holes were opened by the plaintiffs on the suit property, that the suit property was used for commercial purposes for at least 15

years prior to its sale in favour of respondent No: 1, and was also so used prior to the institution of the suit and having been so used it could not

because of Section 5 of the right of Prior Purchase Act be made the subject of preemption. With these findings the learned court dismissed the

appellant's suit. It is against this judgment and decree that the appellants have come up in appeal to this court.

(6) After hearing the learned counsel for the parties at some length, we thought it necessary to have a clear finding from the trial court as to whether

or not the suit property was a building on the date of the sale as contemplated by Section 5 (a) of the Right of Prior Purchase Act.

Accordingly vide our order dated 19th November, 1968, we directed the trial court to return a finding on the aforesaid question after giving an

opportunity to the parties to adduce further evidence. The trial court has after recording the evidence led by parties returned a finding that from the

statement of the witnesses of the parties it is established beyond reasonable doubt that there was a shed constructed by Ram Lal and his father

Amar Nath on the disputed plot and the same was used as a I shop within the meaning of Section 5 (a) of the Right of Prior Purchase Act. that

prior to that firewood was sold by Bindra Ban at the place in question and that the premises was a shop as contemplated by Section 5 (a) of the

Act.

It could not in view of the evidence adduced by the parties in the case be disputed that the suit property was used for commercial purposes or

business for a long time before the sale in question and was being used as a shop at the time of the sale. This is amply borne out not only from the

statements of the contesting defendants witnesses but also from the statements of Tek Singh, Mulkh Raj petition writer, Thakar Das. Amar Nath

Kundan Lal and Gours Shankar who appeared as witnesses on behalf of the plaintiffs. Their evidence shows that Bindra Ban and Nardngh Dev

carried on timber business for a period of 10 years on the suit property which was vacant site and thereafter Ram Lal built a snapper thereon and

carried on the business of baking and sale of grams therein. The evidence further establishes that there is not only a shop contiguous to the suit

property but there are other shops as well on the eastern side of the property which goes to show that the property is situate in a commercial area.

(8) The short question that arises for determination in this case whether the vacant site which has been used for commercial purposes or the

chappar (shed) which has been used for baking and sale of grams can be made the subject matter of a claim for preemption. Whereas Mr. Inder

Dass appearing on behalf of the appellants has vehemently urged the language of Section 5 of the Right of Prior Purchase Act read with the

Explanation appended thereto clearly shows that the exemption from preemption extends only to a building used for sale of goods or for

transaction of public business and not to a vacant site or a Chappar or a temporary Kacha structure. Mr. Iqbal Krishan has contended that the

words ''or some other property"" used as a place for transaction of public business occurring in Section 5 (a) of the Act are wide enough to include

even a vacant site with or without a Kacha or a Pacca structure provided it is used for transacting public business.

(9) The decision of the appeal, therefore, depends upon the true construction of the word ''some other property""and ""public business'' The words

some other property"" are words of very wide amplitude. The legislature seems to have employed this residuary phase to widen the scope of the

exemption. It appears to comprehend within its sweep any type of immovable property (whether with or without a structure) which is neither a

shop, nor a serai nor a market. The rule of ""ejeus dem generis'' (which literally mourns of the same kind or species) on which great emphasis has

been laid by Mr. Inder Dass is not attracted in this case. The rule which is merely a rule of construction and not a rule of substantive law is hardly

applicable where the intention of the Act is otherwise clear In State of Bombay V. Ali Gulshan, AIR i955 SC 810, it was observed that the

ejusdem generia rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning

unless they are clearly restrictive in their intendment. Accordingly we are of the view that there is no justification for excluding a vacant site from the

ambit of the words' or some other property.

(10) Let us now find out the true import of the words ''Public business."" At page 361, Volume I of the Roland Burbows ""words and phrases

Judicially defined 1946 Edition, the expression'' business has been defined as including any trade, commerce or manufacture or any adventure or

concern in the nature of trade commerce or manufacture, the underlying idea being continuous exercise of activity i. e. an occupation as

distinguished from pleasure which requires attention as a business.

(11) In Smith V. Anderson 15, Ch D. 258. I Jessel M. R after citing definitions of ''business"" from several dictionaries said.

Anything which occupies the time and attention and labour of a man for the purpose of profit is business.*'

(12) In State of Andhra Pradesh V. Abdul Bakhi, 19647 SCR AIR 1965, SC, 531, it was held.

The expression 'business' though extensively used in the word of indefinite import, in taxing statutes is used in the sense of an occupation or

profession which occupies the time, attention and labour of a person normally with the object of making profit. To regard an activity as business

there must be course of dealings, either actually continued or contemplated to be continued with a profit motive and not for sport of pleasure.

(13) This ruling was quoted with approval and followed in M/s Hindustan Steel Ltd Vs. The State of Orissa, A. I. R. 1970 Supreme Court, 253.

(14) Thus the word ""business"" can safely be taken to mean any commercial activity carried on continuously for the purpose of gain.

(15) The interpretation of the word ""Public"" however, presents some difficulty. In Wharton's Law Lexicon, 1955 Edition, the word ""Public place

has been defined at page 818 to include the place to which the public are accustomed to resort without being interfered with* though there is no

legal right to do so.

(16) In volume 3 of Stroud's Judicial Dictionary (1953 Edition) the author while alluding to the expression ""Public trade or business"" states at page

2395 as follows:

A girls school is a breach of a covenant not to suffer ""any public trade or business"" to be carried on (Vickenden V Webster, 25, L. J. Q. B. 264;

Business).

Things delivered to a person exercising a ""Public trade"" to be carried wrought worked up, or managed in the way of his trade or employare

exempt from Distress , (Simpson V. Hartopp, Willies, 512; I Sm. L O. 463. On that occasion Patterson J. said ""I do not know what is meant by

the phrase ""Public trade"" (Givson V. Ireson 3 QB. 44) but each of the following is a ""Public trade"" within this rule; auctioneer (Adams V. Grane 2

L. J. Ex. 105 Williams V Holmes, 8, ex 861, butcher (Brown V Shevill, 4 L. J. K. B. 50), Carrier (Gisbourn V. Hurst, I Salk 249), Clothier,

farrier, innkeeper, miller tailor, weaver (Co Lit 47a ; Redy V. Burley, Cro Eliz 596) factor or commission agent (Oilman V. Elton. 3 Bood and B

75; Findon V. M. laren 6 Q. B. 891). Pawnbroker (Swri V. each 34 L. J. C. P. 150) warehouseman (Miles V. Furber, L R. 8 Q. B. 77);

wharfinger (Thompson V. Mashiter, I. Bing 283. Matthias V. Mesnard, 2 C & P, 353). See Hereon Rose N P. (20ch edition) 904 See Clarke

Vilwall Cock Co, 17 Q. B. D. 494...

(17) Thus the words ""or any other property'' used for transaction of public business occuring in Section 5 (a) of the Right of Prior Purchase Act,

1993 (1936 A. D) would in our opinion, include even a vacant site used for carrying on any commercial activity for the purpose of gain provided t

public have an access thereto though they may have no right to do so

(18) In construing the aforesaid words we have also to bear in mind that preemption as held in Bishan Singh and others V Khezan Singh and ant.

A. I. R. 1958 Supreme Court, 838 and Mulla amruddin Naib Mulla Abdul AH V. Brijroobandas Shrikishandas and others. A. I R 1962 Madhya

Pradesh, 25. is a weak right and it does not seem to have been intended by the Legislature that the persons carrying on trade or business should be

disturbed or dislocated The fact that the property in dispute is situate in a locality where there are several shops also impels us to hold that the

property other than a shop, serai, or market which is used as a place for transaction of public business cannot be made the subject of preemption.

Any other construction would lead to anomalous result and would throw many persons out of employment which danger the legislature seems to

have guarded against by employing the aforesaid phraseology and extending the scope of ex emption.

(19) That the aforesaid words are susceptible of the construction which we have placed on them would also be clear from reference to Section 2

(5 of the Jammu and Kashmir Houses and Shops Rent Control. Act. 1966, where the word ""shop has been defined as follows :

Shop means a building or a part of a building suitable for occupation as such and includes a piece of land, with or without structure let for the

purpose of being used principally for business or trade.

(20) That apart in Stroud's Judicial Dictionary, Volume IV (1953 Edition) ic has been observed at page £775, that a wooden shed affixed to a

house and supported on wooden posts would also fall within the ambit of the word ''shop."" (Ashworth V. Heyworth, LR 4 QB 316 and Wiltshire

V. Willett, 31 IJMC8).

(21) In the present case the trial court has found on good evidence that there was a shed constructed by Ram Lai and his father on the disputed

plot and the same was used as a shop within the meaning of section 5 (a) of the Right of prior purchase Act.

(22) For the foregoing reasons, we are of the opinion, that as the suit property has been used for a time as a place for transacting public business

and was also so used at the time of sale in question, it could not be the subject of preemption.

(23) In the result the appeal tails and is accordingly dismissed but in the circumstances without any order as to costs.