1986 PLP 1267 (CLC)

(c) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S . 7 & 16‑‑Civil Procedure Code (V of 1908) , S. 100‑‑Pre‑emption suit in respect of immovable property‑‑Superior right of pre‑emption‑ Finding of fact‑‑Both Courts below concurrently found that pre‑emptor was owner of contiguous house‑‑Concurrent findings of fact of two Courts below, held, could not be interfered with in second appeal in circumstances. Mirza Aziz Akbar Baig for Appellant. Muhammad Riaz Khan Babar for Respondent. Date of hearing: 30th May, 1984. This is a Regular Second Appeal against the judgment and decree, dated 15‑2‑1983, of the Additional District Judge, Multan, who confirmed the judgment, dated 18‑2‑1981, passed by the Civil Judge, Multan whereby pre‑emption suit of the respondent was decreed.

2. Haji Wali Muhammad and others sold house No.931 Ward No.7 Muslim, situated in Muhallah Shah Chanderwala near Tahli Barang Shah out side Haram Gate, Multan city for sale price of Rs.12,000 to Mst. Naseem Akther appellant through a registered deed of sale, dated 24‑7‑1972. The respondent filed a suit for possession through pre‑emption on the ground that she was owner of the contiguous house and that the house was sold for Rs.8,

000. The vendee‑appellant resisted the suit. The appellant denied that respondent had superior right of pre‑emption, that boundaries of the suit property had not been correctly given in the plaint and that custom of pre‑emption did not exist in the locality where the suit property was situated. After framing of relevant issues parties led their evidence and the trial Court decreed suit of the pre‑emptor‑respondent. The lower appellate Court confirmed finding of the trial Court and dismissed the appeal of the appellant.

3. The appellant has challenged findings of the two Courts below under issues Nos. 1, 3 and 4 before me and has addressed the same arguments which were repelled by the lower appellate Court. It was argued on behalf of the appellant that the description of the property given in the plaint was different from that in the sale deed inasmuch as the suit house was described as situated outside Pak Gate in the plaint whereas the house sold and pre‑empted was described in the sale deed as situated outside Harem Gate in the city of Multan. The objection is misconceived. The suit was filed for possession of the house No.931 in Ward No.7 Muslim situated in Muhallah Chah Chandarwala near Tahli Barang Shah which description is sufficient and is common in the sale deed as well as in the plaint and mere fact plaint showed it as outside Pak Gate and not outside Harem Gate does not amount to misdescription. The evidence on record leads to the conclusion that parties understood the suit property to be the same which was sold. The onus of issue No.l to prove that property had been incorrectly described in the plaint was on the appellant who failed to discharge it.

4. Learned counsel for the appellant then urged that plaintiff respondent had failed to prove existence of custom of pre‑emption in the locality. The objection was based on the same reasoning that although the house sold , and pre‑empted was situated outside Harem Gate the evidence led in the case mentioned it as situated outside Pak Gate. Bashir Ahmed (P.W), Patwari of Municipal Committee, had seen the house and stated that it was situated within Taraf Ravi although he mentioned that the house was situated outside Pak Gate. Some other witnesses of the plaintiff‑respondent also described the suit house as situated outside Pak Gate. In the case of Abdullah and others v. Punnu Ram and others (42 Punjab Record 1906) the Division Bench of this Court held Taraf Ravi to be a sub‑division and found that the suit house and shops situated outside Harem Gate Multan city were pre‑emptible and custom of pre‑emption existed in the locality. Some other cases of outside Harem Gate were also referred therein. In view of this the finding of the two Courts below under issue No.3 cannot be interfered with.

5. It was lastly contended that respondent had no superior right of pre‑emption because she did not prove herself to be owner of the contiguous House No.930 which was occupied by her Mukhtar‑e‑Khas as tenant under Muhammad Nawaz (D.W). Both the Courts below found that respondent was owner of the contiguous house. Muhammad Nawaz (D.W) failed to prove that he was owner of the house No.930. This finding of fact adverse to the appellant cannot be interfered with in the second appeal.

6. For the above discussion the appeal is dismissed The parties are left to bear their respective costs. H . B . T . Appeal dismissed