NAZIR AHMAD vs FATEH MUHAMMAD
This matter arises from a petition challenging the judgment of the High Court regarding a pre-emption suit. The core legal question for determination was whether the custom of pre-emption existed in the locality where the house in dispute was situated, specifically whether Taraf Mubarik Awal constituted a distinct locality from Taraf Mubarik, and whether a suit for pre-emption could be successfully brought in respect of a house situated in a newly developed residential area and outgrowth of the city. The Supreme Court considered the contentions regarding the recent conversion of the agricultural area into a residential abadi after the creation of Pakistan and noted supporting case law presented by the petitioner. The court granted leave to appeal to examine these questions, stayed the execution of the decree, and restrained the ejectment of the petitioner in the meantime, thereby establishing that arguable questions of law regarding the existence of pre-emption customs in newly developed urban areas warrant a full hearing.
- Whether the custom of pre-emption exists in Taraf Mubarik Awal as a part of Taraf Mubarik?
- Can a suit for pre-emption be successfully brought in respect of a house situated in a newly developed residential area which was under cultivation until the creation of Pakistan?
- Does the existence of pre-emption custom in an older locality extend to its subsequent residential outgrowths?
ORDER
1. NASIM HASAN SHAH, J.--The question for determination in this case was whether the custom of pre-emption existed in the locality where the house in dispute was situated?
2. According to the sale-deed, the house was stated to be situated in Mohallah Basti Pareran outside Lohari Gate, Multan City. It is admitted that the house lies in Taraf Mubarik Awal and in order to established that the custom of pre-emption existed here, reference was placed on Exh. P. 11 and Exh. P.
5. These are certified copies of the judgment of the civil Court delivered on the 12th August, 1907 and 29th June, 1949, respectively which showed that the custom of pre-emption in Basti Pareran and Taraf Mubarik prevailed here.
3. The contention before the High Court was that even though the custom of pre-emption might have prevailed in Taraf Mubarik no such custom existed in Taraf Mubarik Awal, wherein the house in dispute was actually situated. The learned Judge in the High Court repelled this plea by observing that Taraf Mubarik Awal is nothing but a part of Taraf Mubarik and on this finding held that the custom of pre-emption can be "very well said to exist in the locality where the house in dispute lies".
4. This view is challenged by this petition.
5. Mian Nusratullah, learned counsel for the petitioner drew our attention to the statement of the plaintiff Fateh Muhammad who had admitted in his cross-examination that the house in question was situated in the locality known as 'Bobayki Marhi, which area were under cultivation until the creation of Pakistan and thereafter, it was converted gradually into residential area and argued that no suit for pre-emption could be successfully brought in respect of a house situated in the new Abadi and an outgrowth of the city. This submission is supported by Mst. Maqsooda Begum v.
6. Maulvi Abdul Haq and others PLD 1968 Lah. 897 and Fazal Karim v. Muhammad Afzal and others 1982 SCMR 997.
7. Leave is; accordingly, granted.
8. Security in the sum of Rs.2,500.
9. The execution of the decree will remain stayed and the petitioner not ejected from the house in dispute meanwhile.
Cited by 1 case
- Ch. MAQSOOD AHMAD vs KHALID PERVAIZ 1990 CLC 1536