1994 PLP 1447 (SCMR)

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑ ‑‑‑‑S.7‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Custom of pre‑emption‑‑ Existence of‑‑‑Finding of First Appellate Court affirmed by the High Court was that house in question, was located in locality where custom of pre emption existed prior to 1913‑‑‑Such finding of fact could not be interfered with by the Supreme Court in appeal. Mian Muhammad Iqbal, Advocate Supreme Court instructed by S. Abul Aasim Jaferi, Advocate‑on‑Record for Appellants. Muhammad Aslam Naqi. Advocate Supreme Court instructed by Abid Nawaz, Advocate‑on‑Record for Respondent. Date of hearing: 22nd December, 1992. SAAD SAOOD JAN, J.‑‑‑This is an appeal by special leave from the judgment dated 30‑10‑1989 of the Lahore High Court, affirming the judgment of the Additional District Judge, Kasur, which reversed the judgment of the Senior Civil Judge, Kasur, and decreed the suit for pre‑emption filed by the respondent.

2. The dispute in this appeal relates to a house situate in Kucha Ghulam Hassan Khan of Kot Androon. It was owned by the heirs of one Fazal‑ur- Rehman. By a registered deed dated 28‑12‑1976 they sold it to the appellant. On 27‑12‑1977 the respondent brought a suit for pre‑emption. He alleged that his own house was contiguous to the house in dispute and that between the two houses there was a common wall which supported their roofs. He also averred that the custom of pre‑emption existed in Kot Androon.

3. The suit was resisted by the appellant and the main controversy between the parties revolved around the question whether the right of pre emption existed in the locality where the house in dispute was situate. The trial Court answered this question in the negative. But in appeal by the respondent the learned Additional District Judge resolved the controversy in favour of the respondent. In Second Appeal, the High Court affirmed the finding of the Additional District Judge. The appellant has now come in appeal to this Court.

4. The only question for consideration in this appeal is if the High Court was right in affirming the finding of the Additional District Judge with regard to the existence of the custom of pre‑emption in the locality where the house in dispute was situate. The said house was admittedly located within the limits of the Kasur Municipality. Thus it constituted urban immovable property within the meaning of section 3 (3), the Punjab Pre‑emption Act. Now section 7 of the Act deals with the right of pre‑emption in respect of urban immovable property. It states that a right of pre‑emption shall exist in respect of urban immovable property in any town or sub‑division of a town when a custom of pre‑emption is proved to have been in existence in such town or sub‑division at the time of the commencement of this Act, and not otherwise. The Act came into force in 1913. It will thus appear that a pre‑emptor seeking to acquire urban immovable property on the basis of his superior right can succeed only if he can prove that the custom of pre‑emption existed before 1913 in the locality in which the property is situate. The Lahore High Court has in the case of Karim Ahmad v. Rahmat Elahi (AIR 1946 Lahore 432) laid down some guidelines for determining whether the right of pre‑emption was in force in the particular town or sub‑division of a town at the relevant time. In this context it, inter alia, observed that the principals of the Law of Pre‑emption were introduced in this country by the Mahomedan conquerors as the Law of Pre emption is essentially a part of Mahomedan Jurisprudence and such a custom of pre‑emption must be presumed to exist in a town founded by the Moghuls. In this case we can safely substitute the word 'Pathan' with the word of `Moghuls' for it is common knowledge that the different Kots in and around Kasur city were founded by the Pathans long before the Sikhs started their rule in the Punjab.

5. Apart from producing oral testimony the respondent placed on record five judgments of the Civil Courts wherein the custom of pre‑emption was held to exist in Kot Kalan of Kasur prior to 1913. Kot Androon is a part of Kot Kalan. There is a finding of the first appellate Court which was upheld by the High Court that the house in dispute was located in Kot Androon. Although, the learned counsel for the appellant did contest finding, but we can find no basis for interfering with it. This appeal is without any merit and is hereby dismissed with not order as to costs. A.A./R‑229/S. Appeal dismissed.