1992 PLP 1723 (CLC)

(6) Whether the defendants have effected any improvement on the suit? land? If so, what is their value and effect? OPD (7) Whether the custom of pre‑emption exists in the locality of the house in dispute? OPP (8) Whether the plaintiff has a superior right of pre‑emption? OPP (9) Whether the ostensible sale price of Rs.1,10,000 was fixed in good faith or actually paid? OPD (10) If issue N0.9 is not proved, what was the market value of the suit land ?at the time of sale? OP. Parties. (11) Relief.

3. All the issues were decided against the petitioners/defendants and the suit decreed on 10‑3‑1986. 1n the appeal findings on issues Nos.l to 6 were not challenged by the petitioners at the time of hearing of the appeal before the learned Additional District Judge, Jhang which was dismissed on 7‑12‑1986.

4. The petitioner's learned counsel urged that Chiniot City was proved to be divided into sub‑divisions or Mohallahs but it was not proved that custom of pre‑emption prevailed in Mohallah Qasaban where the suit house was situated. He tried to distinguish the judgment reported as 68 Punjab Record 1890 on the ground that it merely proved prevalence of custom of pre‑emption in Chiniot City generally and not in the particular sub‑division where the disputed house was situated. He submitted that issues Nos.2 and 3 relating to waiver and estoppel were wrongly decided by the Courts below. He urged that the suit was barred by time as the sale had taken place on 22‑5‑1978 and the suit instituted on 21‑5‑1979. He further submitted that onus to prove existence of Sub‑Divisions and custom was on the plaintiff/respondent who had failed to discharge the same. He placed reliance the following cases:‑

(i) AIR 1947 Lah. 265. (ii) PLD 1977 Lah. 394 (iii) 1987 CLC 2156. (iv) PLD 1987 Lah. 205.

5. On the other hand the learned counsel for the respondent urged that the Courts below had rightly held that custom of pre‑emotion prevailed in the old Chiniot City and the suit house being located in the centre of the Town was pre‑emptible. He submitted that after proof of general custom in the ‑entire Town the burden to prove that an independent sub‑division had been created where customs of pre‑emotion did not prevail lay on the vendees/petitioners. He placed reliance on the cases of Karim Ahmad v. Rehmat Elahi and others AIR 1946 Lah. 432 and 68 Punjab Record 1890. He further submitted that the Courts below had rightly recorded the findings on issues Nos.1, 2 and 3 which were otherwise not challenged before the first appellate Court and could not be allowed to be assailed in the second appeal. Lastly he submitted that the respondent was proved to be a co‑sharer as well as the owner of the contiguous house. Hence the Courts below had rightly held that he was entitled to pre‑empt the suit land. In reply the petitioner's learned counsel submitted that it was the duty of the pre‑emptor/respondent to prove. the existence of custom. The said burden could not be placed on the petitioners.

6. The judgment of the learned Additional District Judge, Jhang shows that at the time of the hearing of the appeal findings of the trial Court on issues No.1 to 6 were not challenged. In the memo of appeal filed before the first appellate Court a ground was incorporated to assail findings of the trial Court on issue No.6, apart from the general attack to the decree. In the memorandum of appeal filed before this Court also, findings on issues Nos.], 4 and 5 have not been specifically challenged. However, findings on issues Nos.2, 3 and 6 have been challenged. It has nowhere been stated in the memo of appeal that the petitioners' counsel had in fact challenged the findings of trial Court on issues Nos.1 to 6 and that the contrary observations of the first appellate Court were incorrect. In this view of the matter the petitioners cannot be allowed to assail the findings of the trial Court on issues Nos. 1 to 6.

7. The main controversy between the parties revolves around issue No.7 relating to the existence of custom of pre‑emption in the locality where the suit house was situated. The respondent had stated in para. 4 of the plaint that the suit house was situated in the old city of Chiniot where the custom of pre?emption was in existence since before the enforcement of the Punjab Pre?emption Act, 1913. The petitioners in their written statement denied the correctness of the said para. However, Murad petitioner No.2 while appearing as D.W.4 stated that the house was situated in Mohallah Qasaban of Chiniot City which was an old city. The petitioners witness Ghulam Muhammad D.W.2 and Zahoor Ahmad D.W.3 also admitted that Chiniot was an old city and that the custom of pre‑emotion prevailed in the old city. Sh. Manzoor Elahi P.W.2 produced by the respondent stated that the disputed house was situated in the heart of Chiniot City. The copies of the judgments produced a, Exh.P.3 and Exh.P5 pertinent tri the properties situated in Mohailah Lohari Gate and Mohallah Takleeran also showed that the custom of pre‑emption prevailed in the old city of Chiniot. The judgment in the case of Ch. Noor Ahmad and others v. Ganga Ram and others 68 Punjab Record 1890 also proves that custom of pre‑emotion generally prevailed in the city of Chiniot in? respect of the houses (though not in respect of shops). Once it was established that custom of pre‑emotion generally existed in the old city of Chiniot then the burden shifted to the petitioners‑defendants to prove that in the Mohallah or the sub‑division as they claimed it to be, the custom of pre‑emotion did not exist. This view finds support from the judgment in the case of Karim Ahmad relied upon by the respondent's learned counsel. In that case it was held that there was no presumption that a town had various sub‑divisions for the purpose of pre‑emotion law and that it was for the person alleging the existence of a sub‑division to prove its existence. It was further held that the existence of various Mohallahs, Bazars and Lanes with specific names was not sufficient to prove that those were recognized sub‑divisions. Even in Pervaiz Akhtar's case relied upon by the petitioner's learned counsel it was observed in para. 11:‑ "If the Mohallah in question existed at the time of commencement of the Pre‑emotion Act then in view of the finding by both the Courts below that custom of pre‑emotion exists generally in the said Town it will be difficult to hold that custom of pre‑emotion does not prevail in the said Mohallah:"

8. The oral as well as documentary evidence in the present case proves that the disputed house was situated in the old city of Chiniot where the custom of pre‑emotion prevailed since before the enforcement of the Punjab Pre‑emotion Act. The mere fact that the house is situated in Mohallah Qasaban is not sufficient to show that it was an independent sub‑division or A that it was a new abadi where the custom of pre‑emotion did not prevail. The petitioners did not plead in the written statement that Chiniot City was divided into separate sub‑divisions. Moreover, there is no material on the record to substantiate that Mohallah Qasaban was an independent sub‑division. It is a part of the old city of Chiniot where custom of pre‑emotion does exist. The judgments in Lai Chand's case AIR 1947 Lah. 265 and Hakim Rais, case AIR 1930 Lah. .528 are distinguishable because the existence of independent sub‑ divisions in the town was proved. In the present case there is nothing to show that city of Chiniot is divided into independent and recognized sub‑divisions for the purpose of pre‑emotion laws. Even in Lai Chand's case it was emphasized that a mere street or lane or Mohallah could not be regarded as by itself a sub?division of the town unless it was proved to be the main part into which the town was divided. Hence the Courts below have rightly held on issue No.7 that custom of pre‑emotion prevailed in the locality where the disputed house was situated. The Courts below have also recorded concurrent findings on issues, Nos.8, 9 and

10. The evidence on the record clearly established that the respondent was owner of contiguous house and had 1/3rd share in the common courtyard of the disputed house. The entrance to the petitioners' house and the disputed house is also common. The sale‑deeds Exhs.P.8 and P.9 dated 15‑3‑1906 proved that the respondent was a co‑sharer in the land underneath the disputed house. The petitioners' learned counsel has not been able to show any misreading or non‑reading of evidence to justify interference in the exercise of jurisdiction under section 100 of the C.P.C.

9. Malik Amjad Pervaiz, Advocate (who also appeared for the petitioners) urged that the disputed property was, in fact, a shop as P.W.6 had admitted that in the basement business of furniture‑making was being carried on. Hence the part of the property which was a shop was not pre‑emptible. There is no substance in the argument because the disputed property was, in fact, a house and subsequent user of a part of the property for furniture work was not sufficient to change its character from house to that of a shop. It remained a residential house and was pre‑emptible.

10. In view of above discussion I find no merit in this appeal which is dismissed leaving the parties to bear their own costs. A.A./A‑136/L????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.