Mat. KHURSHID BIBI vs ALLAH DITTA
This petition for leave to appeal arises from a judgment of the Lahore High Court dismissing an appeal against an order of the Additional District Judge, which had reversed the trial court's dismissal of a pre-emption suit and remanded the matter. The core legal question concerns whether the plaintiff in a pre-emption suit regarding urban immovable property must prove the existence of the custom of pre-emption in the specific locality or sub-division at the time of the commencement of the Punjab Pre-emption Act, 1930, and whether any presumption exists in favour of such custom. The Supreme Court held that the contentions raised regarding the lack of evidence of the existence of the sub-division and the custom at the relevant time, supported by prior case law, require detailed examination. Consequently, the Court granted leave to appeal and continued the interim stay until the final disposal of the appeal, establishing that the existence of the custom of pre-emption must be proved as a matter of fact in each case without any presumption.
- Whether the right of pre-emption in respect of urban immovable property requires proof of the custom of pre-emption at the time of the commencement of the Punjab Pre-emption Act, 1930?
- Is there any legal presumption in favour of or against the existence of the right of pre-emption in a given locality?
- Whether proof of the custom of pre-emption in a sub-division of a town must be established by evidence in each case?
- Section 7, Punjab Pre-emption Act 1930
- Section 5, Punjab Pre-emption Act 1930
ORDER
S. A. NUSRAT, J.-- This petition for leave to appeal is from the judgment of the Lahore High Court Multan Bench dated 3-3-1984 whereby the First Appeal of the petitioner challenging the order of the learned Additional District Judge, Multan dated 3-7-1982 was dismissed
2. A suit for possession through pre-emption was instituted by the respondent against the petitioner in respect of house No.4930 situated in Mohalla Valvat outside Bohar Gate, Multan City.
The right of pre-emption in the suit was claimed on the ground of contiguity to the property of the plaintiff /respondent and common entrance. The suit was dismissed by the learned trial Court on 24-5-1980 having found under sue No.4 that, (i) the custom of pre-emption did not prevail in the locality in which the suit house was situated and (ii) the property was not proved to be urban.
However, on appeal by the respondent the learned Additional District Judge, Multan reversed the above findings on 3-7-1982 and held that since custom of pre-emption was proved to be prevalent in the Sub-Division of Mauza Taraf Ismail it was not necessary for the plaintiff /respondent to prove existence of such custom in the Mohalla and Street. With such findings the case was remanded to the trial Court for decision of the remaining issues. This judgment was challenged by the petitioner in an F.A.O. Before the High Court which was dismissed as per impugned judgment.
3. The learned counsel after taking us through the judgments passed in the case and the evidence on the record, contended that the plaintiff/ respondent had failed to prove that the disputed property was situated in Taraf Ismail and had further failed to show as to whether the particular sub-division was in existence at the the of enforcement of Punjab Pre-emption Act, 1930 (hereinafter to be referred to as the Act). It was lastly pointed out that from the evidence on the record it was not borne out whether at the the of announcement of Pre-emption Act the custom of pre-emption was prevalent in the locality where the suit property was situated. Section 7 of the Act relied upon by the learned counsel reads as follows: "Section 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 the of the commencement of this Act, and not otherwise.
4. In deciding the relevant issue No.4 as to whether the custom of pre-emption prevailed in the locality where the suit property was situated before the enforcement of the Act, it was held on the basis of evidence, by the learned trial Court that the burden to prove the assertion with regard to existence of custom of pre-emption was upon the plaintiff/ respondent who had failed to lead any evidence in respect of this specific point. The learned First Appellate Court with the observation that the custom of pre-emption prevailed in the locality where the disputed house is situated upset this finding. It was contended by the learned counsel that there was no evidence on record that Taraf Ismail, if at all a sub-division of Multan City, was in existence at the relevant the and in the absence of evidence it could not be presumed that their existed a town or a sub-division for the purpose of pre-emption Act because it was a matter of proof in each case. There is no presumption either in favour of existence of right of pre-emption or against it. In support of the above contentions reliance was placed by the learned counsel on Mat. Maqsood Begum v. Moulvi Abdul Haq and others PLD 1968 Lah. 897 and Pervez Akhter v. Muhammad Arif PLD 1977 Lah. 394.
5. The contentions raised above require examination and leave is, therefore, granted. Security Ra.2,000. Interim stay already granted on 7-5-1984 shall continue until disposal of this appeal.