Mst. SARWAR BEGUM And Another vs KHALIDA KISHWAR And Other
This matter arises out of two petitions for leave to appeal directed against concurrent findings of lower courts in pre-emption suits concerning shares in a house situated within the city of Lahore. The core legal question was whether the custom of pre-emption existed in the vicinity of the suit property, involving the interpretation of Section 8 of the Punjab Pre-Emption Act and a notification dated 16-6-1941, alongside the sufficiency of oral evidence. The Supreme Court held that both the lower courts and the High Court correctly construed the notification—which established that the right of pre-emption existed within the city of Lahore lying within the Circular Road—and properly relied on oral and documentary evidence, including precedent. The petitions were accordingly dismissed. The key principle laid down is that concurrent findings of fact regarding the existence of the custom of pre-emption, supported by statutory notifications and un-rebutted evidence, do not warrant interference by the Supreme Court.
- Whether the custom of pre-emption existed in the vicinity of the suit property situated within the Circular Road of Lahore?
- Whether the Notification No.149 I.R. dated 16-6-1941 issued under section 8 of the Punjab Pre-Emption Act was misconstrued by the courts below?
- Whether oral evidence coupled with a statutory notification is sufficient to establish the existence of the custom of pre-emption?
- Section 8, Punjab Pre-Emption Act
ORDER
M.S.H.QURAISHI, J.-- This order will dispose of to petitions for leave to appeal, namely, C.P.No.748 and C.P.No.749 of 1984. They arise out of to pre-emption suits instituted by Khalid Hussain (predecessor-in-interest of the present respondents) to pre-empt to sales, i.e. (1) 1 share in House No.A/260, situate in Kucha Kaghzian, Bazar Hakeeman, Inside Bhatti Gate, Lahore, sold by Mst.Ruqia Begum in favour of Mst.Sarwar Begum (petitioner in Civil Petition No.748/1984), and (2) the other I share of the said house sold by Mst.Munawar Begum to Muhammad Saddique (petitioner in Civil Petition No.749/1984).
2. A question, inter alia, arose for decision whether custom of pre-emption existed in the vicinity of the suit property. All the Courts below have found the issue in the affirmative by reference to Notification No.149 I.R. Dated 16-6-1941 issued under section 8 of the Punjab Pre-Emption Act and the oral evidence produced in that regard read with Mirza Azam Beg v. Jai Dial and another 48 Punjab Record 1888.
3. The contention raised before us is, firstly, that the provision of section 8(2) of the Act and the aforesaid Notification, dated 16-6-1941 have been misconstrued by the Courts below, and, secondly, that the oral evidence produced was not sufficient to establish the existence of custom.
The High Court while dealing with similar objection raised before it observed that according to the notification, dated 16-6-1941 the right of pre-emption existed within "so much of the city of Lahore as lies within the Circular Road". It is not denied that the property in question does lie within the Circular Road. Even before this notification, as noticed by the High Court, a Division Bench in the aforesaid case of Mirza Azam Beg had held "that a custom of pre-emption prevails in Guzar Talwara as regards houses". The pre-emptor's witness Muhammad Jehangir (P.W.2) had stated:-- His other witness, Mian Khair Din (P.W.1) also stated:-- This evidence was not satisfactorily rebutted. In view of the law and, the evidence on record, the decision taken by the High Court is not open to doubt. Even otherwise, the controversy relates to a question~ of fact and as such there is no apparent justification for interference' with the same. Both the petitions are, therefore, dismissed.
Cited by 2 cases
- MUHAMMAD HANIF and anothers vs ABDUL AZIZ and 6 others 1991 MLD 216
- MANZOOR HUSSAIN vs ALLAH DITTA 1990 MLD 743