1994 PLP 1222 (SCMR)

NASIM HASAN SHAH, J.‑‑‑This judgment will dispose of these two appeals as both of them involve common questions of law.

2. The facts forming the background to these appeals and the questions calling for adjudication are fully set out in the order of this Court granting leave to appeal in these cases which may, therefore, be usefully reproduced below: "Mst. Sharifan Bibi and Muzaffar Ali, now dead and presently represented .by his legal representatives purchased two portions of the same house from one Mst. Imam Bibi for a sum of Rs.8,000 each. Syed Safdar Ali Shah respondent fled two separate suits to pre‑empt the said sales, on the ground that his house was contiguous to the houses in dispute. Both the suits were resisted by the vendees inter alia on the ground that no custom of pre‑emption prevailed in the locality. Both the suits were decreed in favour of the respondents. Both the vendees and. the pre‑emptor filed appeals against both the judgments. The Additional District Judge reversed the judgments in both the suits by holding that in Mohallah Imam Sahib of Sialkot City custom to pre‑empt immovable property did not exist. Syed Safdar Ali Shah respondent filed two separate revisions, which were accepted by a learned Single Judge on 9‑5‑1987, who held that custom of pre emption existed in Mohallah Imam Sahib, Sialkot, and he set aside the two judgments of the appellate Court and decreed the two suits of the respondents." The pre‑emptors filed petitions for leave to appeal against the said judgment.

4. Leave was granted to consider the questions "as to what is the effect of the decided cases in the field of pre‑emption which are based on admissions or compromise made on the existence of custom prevailing in the locality and whether They have probative value and, if so, under what conditions".

5. So far as the first question is concerned, the law was laid down as long ago. as 1906 in the case of Than Singh v. Tara Singh and another (26 P.R. 7907) by Chatterji and Rattigan, JJ as follows: "As regards confessions of judgment and admissions they are of course of much less value that contested cases properly decided where custom has been found to exist after due inquiry, but as observed in several judgments of this Court such admissions are not irrelevant and by no means valueless as they may proceed from the consciousness of the existence of the right and the hopelessness of contesting it, see Ramjas v. Bura Mal (42 P.R. 1905), Tagga v. Allah Bakhsh (69 P.R. 1901) and Muhammad Nawaz Khan v. Mst.Bobo Sahib (44 P.R. 1903) and other cases dealing with the weight to be attached to admissions. Each case must be decided on its own facts. Here it does not appear that there were any special reasons for the admissions made or to detract from their value. We think therefore that these cases should be taken into consideration in disposing of the question of the existence of the custom which we are considering." Coming to the conditions in which such precedents may be relied upon and whether these conditions existed in this case, we observe that 1he unrebutted testimony of P.W.3 (Syed Jamaat Ali Shah) is that the house in question is situate in Mohallah Imam Shah in the town of Sialkot and this is a 900‑year old Mohallah where the custom of pre‑emption prevails, two instances of cases of this Mohallah wherein the custom of pre‑emption was given effect to have been produced by the pre‑emptors. Neither any instance to the contrary nor even a rebuttal of the assertion that the Mohallah was not 900 years old has been made or any evidence that this Mohallah came into existence after commencement of the Pre‑emption Act, 1913 has been led. On the contrary a judgment was cited by the pre‑emptors before us relating to the year 1888 namely Muhammad Bakhsh v. Hayat Muhammad (37 P.R. 1888) wherein it was found that the custom of pre‑emption prevailed in Mohallah Pathana in the town of Sialkot and this Mohallah, according to the evidence of Abdul Aziz (P.W.2), is a part of Mohallah Imam Sahib which is 'a very big Mohallah. The fact that Sialkot was largely a Muslim town existing since centuries and keeping in view the further fact that the law of pre‑emption was introduced by Muslim conquerors and the law of pre‑emption is essentially a part of Muslim Jurisprudence affords a presumption that the custom of pre emption exists in the town of Sialkot. (See Karim Ahmad v. Rehmat Elahi (AIR 1946 Lah. 432). Nothing to the contrary has been shown by the vendees to rebut this presumption. The rule is well established that when a general custom of pre‑emption has been proved to prevail, the party who alleges limitations on the custom is bound to prove them.

7. We are satisfied that the plaintiffs assertion that the custom of pre emption did exist in Mohallah Imam Shah in the town of Sialkot at the commencement of the Punjab Pre‑emption Act, 1913, was rightly accepted by the High Court, in its well‑considered judgment which does not call for any interference.

8. The upshot is that both these appeals will stand dismissed. A.A/S‑821/S Appeals dismissed.