MAHANDAN Versus ABDUL GHANI

This Regular Second Appeal is directed against judgment and decree dated 21‑1‑1979 passed by the learned District judge, Sialkot by which he reversed the judgment and decree dated 15‑10‑1975 passed by the learned Civil Judge, Sialkot decreeing the suit filed by the appellants/plaintiffs.

2. The brief facts relating to the instant appeal are that Khuda Bakhsh appellant/plaintiff instituted a suit against Haji Abdul Ghani and other present respondents for possession through pre‑emption of house No. 41 situated in Bhopalwala, Tehsil Daska, District Sialkot. It was alleged that the suit house was situated in Town Committee, Bhopalwala where the custom of pre emption existed before the promulgation of the Punjab Pre‑emption Act, 1913 and that the suit house was sold for a sum of, Rs.12,000 but the We consideration was shown as Rs.15,000. The basis for the pre‑emption suit was the superior right of pre‑emption on the ground of contiguity of the house belonging to the plaintiff.

3. The suit was contested hotly on the ground that the custom of pre emption did not exist in Bhopalwala and the plaintiff had waived his right of pre‑emption, if any, and the consideration for the suit house was Rs.15,000 and the suit was bad being partial pre‑emption and the Civil Court had no jurisdiction to try the suit as the defendant had made improvements in the suit house.

4. on the pleadings of the parties the learned trial Court framed the following issues:‑‑

(1) Whether the custom of pre‑emption exists in the locality of the disputed house?

(2) Whether the plaintiff has got the superior right of pre‑emption?

(3) Whether the plaintiff has waived his right of pre‑emption?

(4) Whether the suit is bad for partial pre‑emption?

(5) Whether the Court has got no jurisdiction to try this suit?

(6) Whether the sale price of Rs.15,000 was fixed in good faith or actually paid?

(7) What was the market value of the suit at the time of sale?

(8) Whether the defendants have effected improvement on the suit property? If so, to what extent and effect?

(9) Relief

.5. The learned trial Court decided issues Nos. 1, 2, 3, 4, 5, and 8 in favour of the plaintiff and decided issue No.6 against the plaintiff and on the basis of finding on issue No.6 no finding was given on issue No.7. The suit was decreed by the learned Civil Judge, Sialkot vide judgment and decree dated 15‑10‑1975 on the basis of the payment of Rs.15,000 as consideration o the house in dispute. The defendants challenged the same by way of appeal and their appeal was accepted by the learned District Judge, Sialkot vide judgment. dated 21‑1‑1979 and the judgment and decree of the trial Court was set aside and the suit riled by the plaintiff was dismissed.

6. This decision of the appellate Court is impugned in the instant R.S.A.

7. Learned counsel for the appellant has argued that the learned appellate Court has unlawfully reversed the findings of the learned trial Court of issues Nos.1, 2 and 3 and has completely misread the evidence produced by the plaintiff and that is existing on the record as Exh.P/2 and Exh.P/3 which clearly prove that the custom prevails in respect of the agricultural land and residential house of Mauza Bhopalwala. He further reiterated that para. 6 of the plaint and its reply through written statement filed by the defendant is very important. It has proved that the custom did exist at the time of the filing of the pre‑emption suit. He further argued that the learned Appellate Court has wrongly read Exh.P/2 that the suit filed in the year 1903 was in respect of the agricultural property‑ although Exh.P/2 clearly shows that this was a suit filed for agricultural property as well as half part of house number Khasra Abadi and the decree was also in respect of the agricultural land and the house and the Court could not ignore evidentiary value of the document which pertains to the year 1903. Therefore, the judgment on this point is completely based on misreading of the evidence.

8. Learned counsel appearing on the other side has argued that the main question to be determined in this case is whether the custom was prevailing after the area had become a town. He argued that the suit relates to section 16 of the Punjab Pre‑emption Act, 1913 in respect of contiguity in ' urban property. Section 7 of the Punjab Pre‑emption Act is very clear it provides as such:‑‑

"S.7. Subject to the provisions of section 5, a right of pre‑emption shall exist in respect of urban ‑immovable property in any town or sub division of a town when a custom of pre‑emption is proved to have been in existence in such town or sub‑division at the time of the commencement of this Act, and not otherwise."

It was further contended that in this case the plaintiff/appellant had to prove that under section 7 of the Punjab Pre‑emption Act, the custom of pre‑emption existed in the locality in which the suit house was situated before the commencement of the Punjab Pre‑emption Act, 1913 and the plaintiff/appellant failed to prove the same. He drew the Court's attention to the judgment and decree passed by the learned Civil Judge while deciding issue No.1 which was a very material issue. He submitted that the learned trial Court wrote in its judgment that "I feel a difference in the present case because this locality was only declared as urban area in the year 1960 and not before. So, custom is to be proved only after 1960 and not before which the plaintiff has proved fully, so, this issue is decided in favour of the plaintiff. His further submissions are that Bhopalwala was declared as Town Committee in the year 1960 and the plaintiff miserably failed to prove that the area where the house in dispute was situated was a town or sub‑division of a town and the custom of pre‑emption was prevalent there. Exh.P/2, Exh.P/3, and Exh.P/4 are not judgments in respect of above proof. He placed reliance on Manzoor Hussain v. Allah Ditta 1990 MLD 743 (Lahore), Hakim Muhammad Ashraf etc v. Haji Ahmad Bakhsh (1987 CLC 2156). lie further submitted that the house in dispute did not fall in the locality in respect of which Exh.P/2 and Exh.P/3 were produced by the plaintiff. He relied on Dr. lqbal Ahmad Chaudhry V. Muhammad Inayat etc. 1993 SCMR 1477. He argued that the character of the property is to be disputed in each case and this character of the property is to be determined before the promulgation of the Punjab Pre‑emption Act.

9. 1 have heard learned counsel for the parties and have carefully perused the record. The suit for possession through pre‑emption was filed by the appellants/plaintiffs in respect of house No.41, situated in Bhopalwala boundaries of which are detailed below‑.‑‑

North ‑ House of Abdus Sattar.

South ‑ Thoroughfare.

West ‑ House of Sardar s/o Shah Muhammad.

East ‑ House of Khuda Bakhsh.

The suit was filed on the ground of contiguity of the plaintiffs house with the house in dispute and that Bhopalwala, is a Town Committee where the custom is prevalent. This suit was filed on 2‑7‑1973. The defendant filed written statement controverting the averments of the plaint by challenging the jurisdiction of the Court and, that the custom was not prevalent to Mauza Bhopalwala and even it is proved then the defendants were residing in the house as tenants and now as owners in possession and also on the basis of waiver and partial pre‑emption as a shop is located in the disputed property. The contention of the learned counsel for the appellants that they have admitted in their written statement that the custom is prevalent in Mauza Bhopalwala is not proved. Paras. 2 and 3 of the preliminary objections raised in the written statement are reproduced below:‑‑

I have also gone through Exh.P/2 which is copy of the plaint in Suit No.254, instituted on 25‑6‑1903 and decided on 26‑10‑1903. This is a suit for possession through pre‑emption about agricultural land and also half portion of a house number Khasra Abadi consisting of 4 Kothris, 1 Pissar, 1 Rasoai, half open space and half Deori. The description of the property as shown in the plaint is given below:‑‑

East ‑ House of Tara Singh.

West ‑ Street.

South ‑ House of Natha Jat.

North ‑ Street.

Exh‑ P/3 is copy of the judgment dated 26‑10‑1903 passed by Lala Dhaint R4 Sub‑Judge, Sialkot. The suit was ultimately compromised.

Exh., P/4 is the copy of decree sheet in the abovesaid judgment.

Exh. P/5 is the decree sheet in another Suit titled ‑AIIA Ditta V. Muhammad Sharif etc‑ in respect Of agricultural land.

E,xb‑ P/6 is the judgment dated 25‑3‑19'74 passed by Civil Judge,

10. Exh. P/5 and Exh.P/6 are not relevant to the appellants' case.

11. Keeping in view Exh. P/2, Exh. P/3 and Exh. P/4 the plaintiff has established that in 1903 there was Abadi Deh and the half portion of the house in respect of which the pre‑emption suit was filed itself shows, the description of the street and other houses. The appellate Court has not properly appreciated these documents. The material point to be decided by this Court in view of section 7 is that "whether section 7 ibid provides existence of custom of pre‑emption to an independent Abadi or in suburbs of a town or the sub division but not in an independent Abadi". In Hakim Muhammad Ashraf etc. v. Haji Ahmad Bakhsh 1987 CLC 2156 (Lahore), it was stated that " where pre empted land was proved to be situate in an independent Abadi, no part to suburb of town or sub‑division thereof, right of pre‑emption based on custom of pre‑emption, held would not be available in respect thereof." This judgment elaborately deals with the aforesaid question.

It was further held in this judgment that based upon existence of custom of the right of pre‑emption On town or sub‑division, the requirements‑ to prove such custom ‑‑‑ Existence of right of pre‑emption is dependent upon existence of custom of pre‑emption in town or sub‑division where property is situated at commencement of Act I of 1913 ‑‑‑ Not only custom of pre‑emption but town or sub‑division where property was situated must have been in existence at the commencement of Pre‑emption Act, 1913, the question of existence of custom of pre‑emption would not arise in a town or sub‑division which was not in existence at commencement of Pre‑emption Act, 1913 ‑‑‑ Where custom of pre‑emption was proved to ' exist in a town or sub division, same would not extend to independent locality which had grown up after commencement of the Act, however, close to old town or sub‑division that locality was located. Reliance was placed on Pervez Akhtar Y. Muhammad Arif PLD 1977 Lah. 394, Gopal Singh v. Moal Raj AIR 1924 Lah. 557, Kishan Diyal v. Allah Bakhsh (1890) 87 PR, Umar Bakhsh v. Abdul Karim (1898) 70 PR), Allah Ditta v. Muhammad Nazir (1910) 84 PR) Abdul Haq PLD 1986 Lah. 897.

In Muhammad Din v. Sh. Faqir Muhammad PLD 1987 Lah. 205, it was held that the existence of custom, pre‑emption is to be proved from the year: 1905 in which old Pre‑emption Act was promulgated and superseded by Punjab Pre‑emption Act, 1913. Trend of law in existence is excluded from application of custom. Existence of area in urban immovable property the area which came into existence subsequently as such were held to be excluded from application of custom for the reason that such areas came into existence subsequently and the people settling down in such areas had no knowledge of ‑custom with which they have no concern. Any such area added to the boundaries of town by Notification at a subsequent date would certainly be a sub‑division but there will be no extension of pre‑emption law to such added areas unless so positively proved.

In Dr.Iqbal Ahmad Chaudhry v. Muhammad Inayat 1993 SCMR 1477, it was held as under:-

----S. 7---Urban immovable property---Claim of right of preemption ---Areas which came into existence subsequently as extension or outgrowth of the area---Such areas are excluded from application of custom for the reason that such areas came into existence subsequently and application of custom could not be thrust upon the people settling down in such extensions without knowledge of custom with which they had no concern whatsoever."

This judgment, also placed a distinction between a property as an urban immovable property and a property as an agricultural property and held that immovable property either in village or town does not include agricultural and urban immovable property on account of its being located in urban areas.

In Manzoor Hussain v. Allah Ditta 1990 MLD 743 (Lahore), it is held that in order to successfully claim a superior right of pre-emption in respect of urban immovable property, plaintiff has to prove that property is situated in town or sub-division where custom of pre-emption was prevalent before 1913.

Although the appellant/plaintiffs have produced Exh. P/2, Exh. P/3 and Exh. P/4 in respect of an agricultural- property as well as half portion of a house but the number of Khasra which i.3 given over there relates to a number of Abadi Deh. Village Bhopalwala w- declared as Town Committee in the year 1960. This was not a town or sub-division prior to 1913. Moreover, as is held by the Hon'ble. Supreme Court that the nature of agricultural property is different from the urban property and pre-emption being artificial right onus lies on the pre-emptor to prove positively all the aforesaid facts which are not proved by Exh. P/2, Exh. P/3 and Exh. P/4.

12. I have also perused the evidence produced by the parties. P.W.1 is Allah Ditta. He has stated that Bhopalwala is a Town Committee and the right of pre-emption is prevalent there. He has also reiterated his right of contiguity.

P.W.2 is Muhammad Akram. He has stated that the house in dispute is situated in Bhopalwala and Bhopalwala is a Town Committee and the custom of pre-emption is prevalent there. He has also reiterated that the vallue of the house in dispute is Rs.12,000 to Rs.15,000.

P.W.3 is Fazal-ur-Rehman who is a masson and has constructed Kotha.

P.W.4 is Muhammad Bashir. He has stated that the house in dispute is situated in Bhopalwala and the custom of pre-emption is prevalent in the town Bhopalwala which is very old Abadi. It was declared as Town Committee in the year 1960.

D.W.1 is Abdullah. He has stated that on the agreement (Exh. D/1) he has signed as a marginal witness and the sale-deed is Exh.D/2.

D.W.2 is Ch. Manzoor. He is also a marginal witness of the agreement of sale. D.W.3 is the respondent himself. D.W.4 is Sardar Muhammad and D.W.5 is Muhammad Ismail one of the defendants. Their evidence is mainly in respect of existence of shop and also about transaction of sale and many considerations. This evidence does not further improve the plaintiffs case in view of the judgments already decided in view of section 7 of the Punjab Pre- emption Act. Moreover, the Courts have also shown a trend that although Abadis which were later on converted into town or sub-division of a town as an independent locality and grown as such after commencement of the Act the existence of custom of pre-emption would not arise to such town or sub- division which were not in existence before the commencement of Punjab Pre- emption Act, 1913. Exh.P/2, Exh.P/3 and Exh.P/4 nowhere prove that a sub- division or a town was existing at the time of commencement of Punjab Pre- emption Act I of 1913 where the custom of pre-emption was prevalent.

13. Therefore, I see no legal infirmity in the judgment and decree passed by the Appellate Court, which does not call for any interference by this Court. The present appeal is hereby dismissed with no order as to costs.

A.A./M-2668/L Appeal dismissed.