MUJAHID HUSSAIN And Others vs MUHAMMAD AHSAN
The petitioners, vendee defendants of a house in Shujaabad, sought leave to appeal against the dismissal of their second appeal by the Lahore High Court, which had affirmed the concurrent judgments and decrees of the courts below decreeing the plaintiffs-respondents' pre-emption suit. The core legal question centered on whether a previous 1972 civil court judgment was relevant and legally sufficient to prove the existence of a custom of pre-emption in the locality prior to or at the time of the enforcement of the Punjab Pre-emption Act in 1913, and whether the property in dispute was correctly identified as being in the same locality. The Supreme Court held that the 1972 judgment was indeed a relevant piece of evidence to establish the pre-1913 custom and that the lower appellate court had correctly traced and identified the property's location despite a change in ward numbers. The Court affirmed the concurrent findings of fact, dismissed the petition for leave to appeal, and left the matter of refunding deposited sums to the executing Court.
- Whether a previous judicial decision of 1972 is a relevant piece of evidence for determining the existence of a custom of pre-emption in 1913?
- Can a concurrent finding of fact regarding the location of a property and ward number changes be assailed in second appeal without material showing incorrectness?
- Whether leave to appeal should be granted against the concurrent judgments of the lower courts upholding a right of pre-emption?
- Punjab Pre-emption Act 1913
ORDER
1. SHAFIUR RAHMAN, J.--The petitioners are the vendee defendants of a house in Shujaabad and seek leave to appeal against the judgment of the Lahore High Court, dated 3-12-1983 whereby their second appeal against the concurrent judgment and the decree of the to Courts below, was dismissed in limine.
2. The petitioners purchased the house. The plaintiffs-respondents pre-empted it successfully. The contest centered around the existence of a custom of pre-emption in the locality where the property was situate at the the of or before the enforcement of Punjab Pre-emption Act i.e. 1913. The trial Court held such a custom proved. The first appellate Court re-examined it at length and affirmed the finding. The High Court held the question to be one of fact and did not go further in it.
3. As this is the main ground taken up in the petition the other objections, which are no longer of importance, need not be mentioned.
4. The learned counsel for the petitioners submitted before us that there is an error of law in deciding the case inasmuch as that all the Courts have died on a judgment of a civil Court of 1972 for holding as proved the existence of custom in the locality in or before 1913 and secondly, according to the learned counsel the property in dispute in this suit was in a different locality than the one which was dealt with by the judgment of civil Court pronounced in 1972.
5. So far as the first ground is concerned, the learned counsel's arguments are misconceived. What was enforced by the judgment of the year 1972 was not a custom or a practice, which developed after 1913 because such a custom or practice was unenforceable in law. What was enforced was a custom, which was found to exist prior to 1913 and required enforcement on a sale made in 1968-69 pre-empting, which a suit was filed and decreed in 1972. It was a relevant piece of evidence for determining whether the Custom of pre-emption was in vogue in the area in 1913 and before and whether it had been judicially enforced.
6. As regards the second question about the location of the property we find that the first appellate Court has dealt with it elaborately and satisfactorily. The property in dispute has been found to be located at the same place as was the one, which was the subject-matter of the earlier suit. There had been change in the number of ward, which has been traced and identified by the first appellate Court. Such a finding of fact could not be assailed for there is no material which may readily establish its incorrectness. Hence it is not a fit case for leave to appeal.
7. The learned counsel for the petitioners submits that he had deposited in cash in the executing Court a sum of Rs.3,000 and that it should be refunded to him. This sum was got deposited in order to ensure the execution of the decree passed in the case and to meet any claim for means profits.
8. It will be entirely for the executing Court to determine when and what portion of it is to be returned in accordance with law and the rights and the obligations of the parties.