SARWAR BEGUM Versus KHALID HUSSAIN
The petitioner assails the order dated 5th December, 1982, of the learned Additional District Judge by which he dismissed his appeal and maintained the judgment and decree dated 17th July, 1982, passed 'by the trial Court.
2. Briefly, the facts of the case are that Khalid Hussain, respondent, filed a suit for possession by way of pre‑emption of the House No. A/260, Kucha Kaghizian, Bazar Hakeeman, Inside Bhati Gate, Lahore sold to the petitioner on 26th October, 1978, by a registered sale deed. The case of the plaintiff‑respondent was that the custom of pre‑emption prevailed in the locality and he being the owner of the contiguous house, had a superior right.
3. The petitioner contested the suit, firstly on the ground that there existed no custom of pre‑emption in the locality and so the respondent had no superior right. He also claimed waiver on his part, in the alternative. The trial Court framed the following issues:‑
(1) Whether the plaintiff has waived his right of pre7emption?
(2) Whether the custom of pre‑emption does exist in the vicinity of the suit property?
(3) If Issue No.2 is proved, then whether the plaintiff has got superior right of pre‑emption?
(4) Relief.
Both the parties led evidence. The trial Court after scrutiny decreed the suit on 17th of July, 1982. The appeal filed by the petitioner was, however, dismissed on 5th of December, 1982, as stated above.
4. It is contended by the learned counsel for the petitioner that a heavy onus lay on the plaintiff, to prove by cogent evidence, going beyond the living memory, the existence of custom and even in that case, the claim might fail, if the plaintiff had waived his right. According to the learned counsel, the plaintiff had failed to prove the custom and secondly, the courts below misread the evidence on the record in respect of the waiver. The learned counsel, to begin with, cited two judgments in support viz. Aziz Din v. Sham Das etc. (91 Punjab Record (1892) and Mohkam Din v. Karimullah (102 Punjab Record (1881)) but they have no relevance to the case in hand.
5. Reliance was then placed on Basho Ram and others v. Mat. Sarupi and others (A.I.R 1940 Lahore 51) where it was held that custom is a question of fact and it has to be established by proof in the shape of instances etc. and finding cannot be based on inferences. It is argued that though an instance in the locality had been cited by the defence witnesses in respect of a sale successfully pre‑empted by Majid Khan, yet a copy of the order or the decree had not been produced to substantiate. The argument, on the face of it, is quite weighty but has no force so far as this case is concerned.
6. In the case of Mirza Azam Beg v. Jai Dial and others (48 Punjab Records (1888)) a Division Bench of this Court held "that a custom of pre‑emption prevails in Guzar Talwaran as regards houses " Burney, J. in the same judgment observed: "that in this very Guzar and also in other part of Lahore, sales of shops have been disputed by pre‑emptors who eventually obtained decrees.."
7. The learned counsel for the petitioner attempted to meet the point by saying that according to the evidence on the record, the name of the locality is 'Rah Talwaran' and not 'Guzar Talwaran' to which the judgment refers. Even this submission is devoid of much force. Only Khair Din (P.W.1) stated that the other name of Bazar Hakiman is "Rah Guzar' but P.W.2 Muhammd Jehangir as well as Wahid Hussain (P.W.3) deposed that it was 'Guzar Talwaran'. The petitioner's witnesses, . however, denied if Bazar Hakiman had any other name.
8. The case of the petitioner is, also directly hit by the notification dated 16th June, 1941 issued by the Governor under section 8 of the Pre‑emption Act. It is reproduced by the trial Court in its judgment. It is stated therein " .... that no right of pre‑emption shall exist within the boundaries of the Municipality of Lahore, except..." "(a) so much of the city of Lahore, as lies within the Circular Road". In this view of the matter, the right of pre‑emption did exist in respect o the demised property which is situate inside Bhati ate.
9. As for tae objection about' waiver, the two Courts below, have concurrently found that there was no waiver. No misreading or omission to read any evidence has been pointed out. In fact the learned counsel did not say much about this objection and laid his entire emphasis on the first point.
For the reasons stated above, there is no merit in this petition,1 which is dismissed with costs.
S.S.Q/S‑213/L Petition dismissed.