P L D 1968 Lahore 897 (PLP)

It will be manifest even from the cursory reading of the language of section 7 that it only recognises the custom of pre‑emption which was already in existence at the time of passing of the Act and does not create a right of pre‑emption on the basis of the custom which is established after the commencement of the Act. To put it differently, the section restricts the right of pre‑emption based on custom which must be in vogue tit the commencement of the Act, but does not recognise the growth of the custom after the commencement of the Act.

9. I propose to break up section 7 and the following result is achieved :‑‑ (1) That the section recognises the right of pre‑emption as opposed to creation of right of pre‑emption in respect of urban immovable property in a town or sub‑division". (2) Where custom of pre‑emption is proved to have been in existence. (3) The custom of pre‑emption must be in existence in the town or sub‑division at the time of the commencement of the Act. (4) The Legislature in their anxiety to restrict the recognition of the custom to the commencement of the Act in abundant caution employed the words "and not otherwise" These words expressly safeguard against the recognition of future growth of custom in a town or sub‑division of the town.

10. By another process of reasoning we reach the same conclusion and it is that the language of section 7 in very plain words contemplates only to distinct situations where right of pre‑emption based on custom is recognised, (1) in the entire town, i.e., in all the sub‑divisions of a town, and (2) it may be restricted to one of the several sub‑divisions of a town. If in a certain town comprising several sub‑divisions the Legislature specially restricted the right of pre‑emption to a particular sub‑division it which the custom existed at the commencement of the Act and did not automatically extend it to the other sub‑divisions of the town is a clear pointer that the Legislature expressly restricted the custom of pre‑emption to the town or sub‑divisions at the time of commencement of the Act and that such a right could not be created in future even in respect of old towns or sub‑divisions in which such right was not obtaining at the time of commence ment of the Act much less it could be extended to the new extension or suburb of a town which takes place after the commencement of the Act.

11. To sum up the discussion, section 7 recognises a custom of pre‑emption in regard to urban immovable property either in the whole of the town or a particular sub‑division of a town if the right of custom is proved to be established in that sub‑division or town generally and if a custom of pre‑emption was not proved to be established in a particular town or a sub‑division of a town at the commencement of the Act such a right cannot be extended to that town or any of its sub‑divisions after commencement of the Act. To put it in few words, the dead‑line for recognising the right of pre‑emption based on custom is the et and after the commencement of the commencement of the Act no right of custom of pre‑emption can be recognised even in old towns or sub‑divisions in which the custom was not proved 4 to exist at the time of commencement of the Act. It follows as a necessary corollary that no custom of pre‑emption can be recog nised in towns which came into existence after the commencement of the Act, or the custom of pre‑emption extended to the out growth or suburb of a town which comes into existence after passing of the Act notwithstanding the fact that the custom of pre‑emption is proved to exist generally in the town at the passing of the Act.

12. So far I have been discussing the question untrammelled by any authority, though there is considerable case‑law on the point, and I propose to refer the following few authorities in a chronological order: (1) In Umar Bakhsh v. Abdul Karim and others 70 P R 1898 the Divisional Bench of the Chief Court held : "granting as we may, at least for the sake of argument, that there may be a well‑established custom of pre‑emption applicable to sites within the original limits of the town, can it be deduced from this that the same custom would apply to the areas under out‑growths of the town, or has plaintiff otherwise proved the existence of a custom that would so apply ? We think that the reply to both questions must be in the negative". (2) The same view was held by the Divisional Bench in Muhammad Din v. Shah Din and another 90 P R 1907. In this case "certain area of land was originally comprised within the village of Killa Gujar Singh, a suburb of Lahore City, and had been in years past agricultural land. For some time past, however, it had been used as a site for building purposes and had been gradually absorbed within the limits of Lahore City. Held, under these circumstances that the land must be regarded as land situate in a town and that there was therefore no presumption that the custom of pre‑emption existed in respect of a sale of such land". Further held "found upon the evidence that the plaintiff had failed to prove that the custom of pre‑emption existed in respect of a sale of such land". (3) In Imperial Oil, Soap and General Mills Co. Ltd., Delhi v. M. Misbah‑ud‑Din and others I L R 2 Lah. 83, the Divisional Bench comprising Sir Shadi Lal, Chief Justice and Mr. Justice Wilberforce, had no difficulty in recognising the existence of custom in Pahar Ganj, a suburb of Delhi, while recognising the custom of pre‑emption has been held to prevail throughout the city of Delhi proper as "circumscribed by the city walls constructed during the Moghul Period and has no application to a suburb which has grown up since the British Rule". (4) In Vaishno Das v. Hem Raj and others A I R 1921 Lah. 279, the Divisional Bench could not be persuaded to recognise the existence of custom in regard to a house situate in Katra Amar Singh notwithstanding that the Katra in question was bounded on two sides by Killa Bhagian and Katra Nimak Mandi in which the custom of pre‑emption did exist. On the other two sides it was bounded by Katra Kanak Mandi and Katra Basti Ram in which it appeared that the custom did not exist. Chevis, J. at page 279, speaking for the Divisional Bench, held: "Even admitting therefore that cases of pre‑emption in adjoin ing Mohallas are relevant such cases can be of no value in a suit like the present, the sub‑division in question being bounded on some sides by sub‑divisions in which the custom of pre emption does exist and on other sides by sub‑divisions in which it does not exist." (5) The same view was approved in Lekh Raj and Ramji Das v. Inder Mal and Sain I L R 4 Lah. 176. (6) In Lala Dewan Chand v. Nizam Din and others 75 I C 610, it was held‑ "It is not necessary that a custom of pre‑emption prevailing in a town should apply to its outgrown Mohallas or suburbs'". The case pertained to Machine Mohalla which had become a suburb of Jhelum City, but it was held that no custom of pre emption had been proved in that Mohalla.

13. On behalf of the respondent, the decision of Agha Haider, J. in Miran Bakhsh v. Muhammad Akram Khan and another (A I R 1937 Lah. 167) was cited in which it was held "that if the custom of pre‑emption prevailed in a particular town and the same town expanded in the ordinary course of things, the custom of pre emption would also be enforceable in the extended boundaries of the original town where the custom had prevailed". With profound respect, I cannot accept as correct the above statement of law by the learned Single Judge in particular when his Lordship's attention was not drawn to several decisions including the Divisional Bench decisions in which a contrary view has been taken.

14. It will be also profitable to refer to the decision in Lal Chand v. Kartar Singh and another (A I R 1947 Lah. 265) in support of the view that if a town comprises of several sub‑divisions the pre‑emptor must prove the existence of custom in the particular sub‑division in which the property is situate. In other words, notwithstand ing the fact that custom of pre‑emption exists in one of the several sub‑divisions it cannot be automatically extended to other sub‑divisions and it is incumbent on the pre‑emptor to prove the existence of the custom at the time of the commencement of the Act. Cornelius, J. as his Lordship then was, approved the rule enunciated by Plowden, J. in Nanni Mal v. Sheo Nath (64 P R 1887) and reproduced the following excerpt :‑ " Assuming a particular town to contain several sub‑divisions, where pre‑emption is claimed in respect of a sale of immovable property situate in one of such sub‑divisions, it is incumbent upon the plaintiff to prove, by reason of section 11, that the custom of pre‑emption prevails in that sub‑division. If the town is not divided into sub‑divisions, it is incumbent on the plaintiff to prove that the custom exists in the town."

15. I would wind up the examination of authorities by referring to the decision of Rain Lai v. Municipal Committee, Bhera and another (A I R 1947 Lah. 386), in which Achhru Ram, J. as his Lordship then was, expressed himself on precisely the same subject thus‑ " Although a custom of pre‑emption prevails generally in the old town of Bhera, that custom cannot be extended for the purpose of pre‑empting a sale of a property consisting of a building situate outside the old abadi, which was constructed at sometime after 1900 on land which till then was agricul tural land." It is important to observe here that his Lordship after reviewing several authorities held the observations of Agha Haidar, J. in Miran Bakhsh v. Muhammad Akram Khan and another, "as to extension of custom of pre‑emption prevailing in old town, to extensions of town", not to be correct.

16. In the result, since on correct interpretation of, section 7 of the Act custom of pre‑emption cannot be extended to the new extension of Pakpattan, I accept the appeal, set aside' the judgments and decrees of the Courts below and dismiss the plaintiff's suit, but would make no order as to casts. S.B. Appeal allowed.