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.
3. 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:
os Nrs ewn~nb;ku dh nqdku dk vax gS bu Nrks ds cxSj ewn~nb;ku dh nqdku ;FkkZFk es nqdkus ugh jgrh gS A;fn bu Nrks dks vyx dj nh tkos rks dsoy nqdkuks dh pkj nhokjs [kM+h jg tkosxh A blfy, Hkh ;s Nrs tks dh csph xbZ gS ;k de lde dks&'ks;lZ gS D;ksfd Nrks ds mij dk gd c;ku ewn~nk;yk uEcj 3] 4] 5] 6] 7 dk gS vkSj Nrs vkSj muds uhps dk gd ewn~nb;ku dh feyfd;r gSA
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.
4. 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.
5. Section 5(1)(a) of the right of pre-emption Act provides that the right of pre-emption shell not accrue upon the transfer of a shop, Katra, sarai, musafirkhana, dhararmshala, temple, mosque or other similar buildings. The word 'shop' has not been defined under the Rajasthan Preemption Act but it has been the subject-matter of discussion in a number of preemption cases under the Punjab Preemption Act, 1905 and the Punjab Pre-emption Act, 1905. Both these Acts contain a provision similar to Section 6(1)(a) of the Rajasthan Preemption Act. Shadilal and Lerossignol, JJ in Bhambaram and Anr. v. Allah Bakhsh and Ors. AIR 1951 Lah 143 dealing with the definition of the word 'shop' made the following remarks:
The word 'shop' is not defined in the Act, and it is not easy to lay down a complete and exhaustive definition of the term. But in its ordinary meaning it denotes a building or an apartment which is primarily uses for buying ad selling goods.
In S.B. Civil First Appeal No. 183 of 1973 Laxminarain v. Smt. Gopali Devi Malpani and Ors.--decided on 29-4-74, it was he'd by me on consideration of the various cases decided under the Punjab Pre-emption Acts including Jhabbanlal's case (supra) cited by Mr. Bhargava, as follows:
From the above authorities the fact that no sale of commodities took place in the premises was a determining factor. The other factes which weighed in determining whether the property was a shop or a house were the nature of the locality where the property was situated, the structural appearance of the property and the primary and main purpose for which the property was used. The length of its use was also considered to be an important factor but that was not regarded as the sole criterion as observed in Jhabbanlal's case (supra), 'that question mainly enters into consideration for the purpose of determining whether the character of the property has bona fide and definitely been established.
In my opinion, the very idea of a shop denotes a roof or a place or a building where goods are sold. I am therefore of the view that the word 'shop' used in Section 6(1)(a) of the Rajasthan Preemption Act denotes a building or an apartment which is primarily used for selling goods.
6. In the present case, the property in dispute consists of an open roof and a stair-case leading to the roof. This open roof is a cover to the shops located in the main bazar of Alwar known as Kedalganj market. The roof being open, it is, as such, neither a roof nor an apartment nor a building. It is argued that a roof of the shop being an indivisible part of the shop, it must be deemed to be a shop. The argument, in my opinion, is wholly devoid of any force. Ordinarily, a shop consists of four walls with a door or doors, floor and roof. All these are indivisible parts of a shop. Can any one of these indivisible parts of the shop be called individually a shop, for example, can a single wall of the shop be termed as shop? The reply must be in the negative. The structural appearance of the property in dispute which in an open roof is not that of a shop. Again, it is an admitted position that the premises in dispute, namely, the roof and the stair-case were never used for sale of commodities. The only use to which the said property has been put to so far was to keep empty gunny bags or to keep goods for drying purposes. DW 1 Chhitarmal says that he would construct a shop on the disputed property for business purposes. Similarly, DW 2 Kailashchand says that the suit property was purchased with a view to construct a shop over it for business purposes. It is thus abundantly clear that the suit property as it stands today is not a shop but after raising construction on it, it would be converted into a shop. In ocher words, the suit property as it stands today at best may be said to be a site for constructing a shop. It is therefore not a shop within the meaning of Section 5 of the Rajasthan Pre-emption Act. The learned District Judge in my opinion rightly decreed the suit. The appeal fails and it is dismissed with costs.