1983 PLP 2958 (CLC)

(6) Whether the plaintiff has superior right of pre‑emption ? O. P. P. (7) Whether a sum of Rs, 7,000 was fixed in good faith or paid as sale O.P.D. (8) Market value? O. P. P. (9) Whether the defendants have effected improvements upon the suit property, if so, to what effect and extent ? O.P.D. (10) Relief. On Issue No. 1, the trial Court held that the value of the suit for the purposes of court‑fee was Rs. 7,000 and not Rs. 2,000 as valued by the plaintiff-respondent. Issues Nos. 2, 3, 4. 5, 6 and 9 were found in favour of respondent/ plaintiff and against the appellants herein. As for issue No. 7, the trial Court held that Rs. 7,000 were bona fide fixed and actually paid by the appellants to the vendor. Issue No. 8 was declared as redun dant. In view of the above‑mentioned findings, the trial Court decreed the. suit against the‑ appellants on 14th July, 1977. Aggrieved by this judg ment and decree, the appellants filed an appeal which was dismissed by the Additional District Judge, Muzaffargarh on 17th May, 1980. Hence this R.S.A.

3. It would be useful to mention here that before the learned Addi tional District Judge (as appears to be in para. No. 7 of his judgment), the learned counsel for the appellants had challenged the findings of the trial Court on Issue No. 3 alone: Before me, the learned counsel for the appellants has also challenged the findings of the learned Courts below on this issue alone. He submits that the onus was on the respondent/plaintiff to prove by clear and unambiguous evidence that custom of pre‑emption was in existence in the locality at the time of the commencement of Pre‑emption Act i. e. 1st March, 1913. Since the respondent/plaintiff has failed to discharge his onus, there was no legal and factual justification for the Courts below to decide issue No. 3 in his favour. (ii) Since the learned Additional District Judge has failed to discuss issues other than issue No. 3 and given his findings thereon, his judgment is not a legal judgment and merits to be set aside. As against this, the learned counsel for the respondent/plaintiff has vehemently defended the findings of the Courts below on issue No.

3. He submits that since issue No. 3 being an issue of fact and the learned Court below having concurrently decided this issue in favour of respon dent/plaintiff, there is no legal justification to interfere with the same in R.S.A.

4. After hearing the learned counsel for the parties and going through the record, I find that the subject‑matter of the suit is urban immovable property i. e. house situated in' Khangarh District Muzaffargarh. In the notification No. 677 dated 10th November, 190$ issued by Lieutenant Governor, Khangarh in District Muzaffargarh has been declared as a town for the purposes of pre‑emption. For proper appreciation of the matter, issue No. 3 may be reproduced at the cost of repetition. "Whether the custom of pre‑emption exists in the locality where the suit property is situate ?" O. P. P. To prove this issue, the respondent/ plaintiff produced Hashim P. W. 3, Ghulam Rasul P. W.

4. He also appeared as P. W. 5 and tendered judg ment Exh. P. 5 given in a pre‑emption suit for possession of a shop situated in Khangarh Town. Hashim P. W. 3 stated Muhammad Ismail respondent/plaintiff as P. W. 5 stated:- "'It is remarkable that the correctness of these statements has not been challenged in the cross‑examination and as such it is to be assumed that the appellants/ defendants had accepted there parts of the statements as true. The appellants also examined as many as 8 witnesses but no one has rebutted the above‑mentioned statements of P. Ws. 3, 4 and

5. It is worth notice that Muhammad Yasin appellant when appeared as P. W. 8 has stated nothing to rebut issue No.

3. His entire examination‑in‑chief is as follows The trend of his statement shores that he had nothing to say about the existence of custom or the superior right of respondent/plaintiff. Both the Courts below have believed the oral and documentary evidence produced by respondent/plaintiff to prove issue No. 3 and have given sound and cogent reasons m support of their findings. In the written statement, the appellants have admitted that the subject‑matter of the suit is situated within the limits of Municipal Committee, Khangarh. It is also not their case that Khangarh was not a town in the year, 1913. In their written statement they did not take the plea that the custom of pre‑emption did not . exist in Khangarh in year 1913. The preliminary objection No. 2 is as under It was in the light of the pleadings that issue No. 3 was framed in the words "'; "Whether the custom of pre‑emption exists in the locality where the suit property is situate ?" O. P. P There is ample evidence to support the findings of the Courts below on this issue. The learned counsel has failed to point out any misreading or non‑reading. The issue is an issue of fact. Both the Courts below have believed the evidence of the plaintiff and have given cogent reasons in support of the conclusion arrive by them and as such it is not a fit case for interference in R. S. A.

5. For what has been stated above there being no merit in the R. S A a the same is dismissed leaving the parties to bear their own costs. M. A. K. Appeal dismissed.