2002 PLP 107 (MLD)

This Regular Second Appeal; filed under section 100, C.P.C., is directed against the judgment and decree dated 16-6-1983 passed by the learned Additional District Judge, Multan, whereby he accepted appeal of the respondents against the judgment and decree of the learned trial Court dated 15-6-1982 by which pre-emption suit of the appellant was decreed.

2. Brief facts necessary for the disposal of the instant appeal are that the plaintiff (hereinafter called the appellant) instituted a suit against Geney Khan (vendee) predecessor of the present respondents seeking possession of the suit house (detailed in the plaint) by exercising his alleged rights of pre-emption on the basis of contiguity. This suit was vehemently contested by raising various factual and legal pleas through the written statement and the learned trial Court with reference to the pleadings of the parties, framed the following issues:-- (1) Whether plaintiff has got superior right of pre-emption? (2) Whether the ostensible sale price was paid or fixed in good faith? (3) What was the market value of the suit land at the time of sale? (4) Whether the custom of pre-emption prevails in the locality where the suit land was situated before the enforcement of Punjab Pre- emption Act, 1913? (5) Whether the description of the suit land is incorrect? (6) Whether the suit is for partial pre-emption? (7) Whether the suit is not properly valued? (8) Whether the defendants have made any improvements, if so, of what value and with what effect? (8-A) Whether the suit is bad for misjoinder of parties as well as misjoinder of causes of action as raised in preliminary objection No.7 of the amended written statement? (9) Relief.

3. The parties led evidence in support of their respective assertions. The learned trial Court decreed the suit vide its judgment and decree dated 15-6-1982 but appeal against the same preferred by the present respondent was allowed by the learned Additional District Judge, Multan, vide his judgment and decree dated 16-6-1983, resulting in dismissal of the suit of appellant. Hence this R.S.A.

4. Learned counsel for the appellant argues that the learned Additional District Judge dismissed the suit of the appellant on two grounds i.e., (i) the impugned sale took place through two independent registered sale deeds therefore, one suit was not competent to pre-empt the same (Issue No.8-A), (ii) on Issue No.4, it was held that the custom of pre-emption was not prevalent in the locality where the suit property was situated.

5. With regard to (i) the learned counsel relied upon 1986 CLC 2169 (Ghulam Akbar v. Iqbal Ahmad) and contended that the transactions of sale through different sale-deeds could be pre-empted through single suit. I `with regard to (ii) it was vigorously argued that the learned Additional District Judge was not justified to reverse the finding of learned trial Court on Issue No.4 as there was ample proof in the shape of judgments of learned Civil Court, Multan dated 12-8-1907, 4=7-1923 and 4-7-1973 (Exhs.P.8, P.7 and P.5) which beyond doubt proved that the custom of pre-emption did prevail in Tarf Mubarak Awwal, Multan, where the suit house situated. In this regard he has also referred to 1985 GLC 2503 (Nazir Ahmad v. Fateh Muhammad). It was also a case of Tarf Mubarak Awwal and it was held with reference to the judgments available on the file (Exh.P.5 to Exh.P.8) that custom of pre-emption was prevalent in Basti Peraran, a part of Tarf Mubarak Awwal. It is also urged with vehemence that the respondents in their written statement had not specifically denied the existence of customs of pre-emption in the locality. He referred to para. 3 of the written statement. According to the learned counsel it was an evasive denial but not specific, in terms of Order 8, rule 5, C.P.C. Thus, the assertions made in para. 3 of the plaint in this regard would be taken to be admitted correct. Reliance has been placed on PLD 1995 SC 314 (Innam Naqshband v. Haji Sh. Ijaz Ahmad). Learned counsel went on arguing that it was not specifically pleaded in written statement that custom of pre-emption did not prevail in the area as it was a new Abadi and. any evidence in the absence of a plea in the pleadings cannot be looked into. Reliance has been placed upon 1992 SCMR 46 (Hakim Ali v. Muhammad Saleem and another). It was lastly contended that the impugned judgment was also an outcome of non reading/misreading of the material pieces of evidence substantiating the assertions of the appellant and negating the stand put forth by the respondents.

6. On the other hand, learned counsel for the respondents strenuously defends the impugned judgment and the decree of the learned Additional District Judge by submitting that the same had been passed strictly in accordance with law and facts of the case.

7. I have given due consideration to the arguments of learned counsel for the parties, perused the record and gone through the judgment cited at the bar.

8. With regard to the contention of learned counsel for the appellant that single suit was maintainable against the sale effected through two sale-deeds, I am in agreement with him and the reliance can safely be placed on the judgment cited by the learned counsel (1986 CLC 2169).

9. The argument of learned counsel for the appellant to the effect that it was not specifically pleaded in the written statement that the suit house situated in Chah Thule Walla and that was a new Abadi; therefore, the debate should have. been confined to the point as to whether custom of pre-emption was prevalent in Taraf Mubarak Awal, Multan. A perusal of the impugned sale-deed Exh.P.4, dated 2-5-1974 and headnote of the plaint dated 30-5-1975 showed that the suit house was situated in Chah Thull Wala. This fact cannot be disputed by learned counsel for the appellant and non mentioning of Chah Thul Wala as new Abadi in the written statement specifically is not fatal to the defence of the respondents. If this principle is to be applied, then the appellant was also required to mention in his plaint that the custom of pre-emption was in existence in the suit area prior to the enforcement of Punjab Pre -emption Act, 1913. In para. 3 of the plaint, as noticed above, it has not been so mentioned rather it was mentioned. But I. am not taking such omission very seriously and the argument of learned counsel for the appellant in this regard is too hypertechnical to be given much weight. The words used in the preliminary Objection No. 1 of the written statement ......are quite indicative of the objection to the effect that the locality (may be in a part of Mouza Taraf, Mubarak Awal) where the suit house situated, there was no custom of pre-emption. Even tenor of Issue No.4 fully indicates that the controversy of custom of pre-emption was confined to the Locality, where the suit land was situated. By using the word Locality, I am clear in my mind that it was to be proved through cogent evidence that the custom of pre-emption was prevalent in the Locality i.e. Chah Thull Wala before the enforcement of Punjab Pre-emption Act, 1913.

10. The main ground of learned counsel for the appellant was that the suit house situated in Mouza Taraf Mubarak Awal within the limits of Municipal Committee, Multan and the custom of pre-emption was prevalent in the area prior to 1913 and in support of it, he relied upon "1985 CLC 2503". No doubt in this judgment it was held that there was custom of pre-emption- prevailed in Basti Peraran, a part of Taraf Mubarak Awal. This finding was based on the judgments passed by Civil Court, Multan, copies whereof were also brought in evidence by the appellant as EXh.P.5 to Exh.P.8. However, this very judgment was set aside by Hon'ble Supreme Court by accepting the appeal of the vendee as is evident from " 1994 SCMR 529" (Nazir Ahmad v. Fateh Muhammad"). The Hon'ble Supreme Court, taking note of judgment printed in "PLD 1968 Lahore 897" (Mst. Maqsooda Begum v. Maulvi Abdul Haque and others) held that prevalence of custom of pre-emption was required to be proved in the very Locality and the pre-emptor failed to prove the same and it could not be held that the custom of pre-emption was prevalent in the Locality i.e. Basti Peraran, in Mauza Taraf Mubarak Awal, Multati. Thus, the judgment cited by the learned counsel for the appellant on the basis of judgments of, Civil. Court (Exh.P.5 to Exh.P.8) could not advance his case. Here, I would like to refer to another judgment of this Court reported in "1987 CLC 2156" (Hakim Muhammad Ashraf and 7 others v. Haji Ahmad Bakhsh), wherein it was held: "Where custom of pre-emption was proved to exist in a town or sub-division, same would not extend to independent locality which had grown up after commencement of the Act, however, close to old town or sub-division that locality was located. " In this very judgment the following judgments have also been relied upon: (i) Pervez Akhtar v. Muhammad Arif (PLD 1977 Lah. 394); (ii) Gopal Singh v. Moal Raj (AIR 1924 Lah. 557); (iii) Kishan Diyal v. Allah Bakhsh (1890) 87 P.R.; (iv) Umar Bakhsh v. Abdul Karim (1898) 70 P.R.; (v) Allah Ditta v. Muhammad Nazir (1910) 84; and (vi) Maqsooda Begum v. Abdul Haq (PLD 1986 Lah. 897). It shall be advantageous to refer to another judgment of this Court printed in "2000 CLC 718" (Malik Ahmed Yar and another v. Mst. Salina Shafiq and another). It was also a case of pre-emption in respect of the house located in Pir Khurhid Colony, Lohari Gate, Multan. The case of the pre-emptor was that in this area (a part of Taraf Mubarak Awal) custom of pre-emption was prevalent before 1913, with reference to the judgments dated 12-8-1907 given by Karam Chand, Munsif, II-Class, Multan (now Exh.P. 8), but this contention was not accepted by the High Court and following the judgment of the Honourable Supreme Court (1994 SCMR 527), it was held that the locality (Pir Khurshid Colony, Multan in Mouza Taraf Mubarak Awal) was a new Abadi and custom of pre-emption was not prevalent there before 1913.

11. It shall not be out of place to reproduce the material portion from the statements of P.W.4 Haji Karim Bakhsh ,(father-in-law of the appellant) and P.W.5 Ameer Bakhsh P.WA stated in the examination-in chief: In cross-examination he stated: P.W.5 also stated in cross-examination. It is also significant to note that P.Ws.I to 6 had nowhere stated in their statements that custom of pre-emption was prevalent in the suit Locality prior to 1913. Even no solid evidence had been brought on the file to show that the Locality in question was within the limits of Municipal Committee, Multan prior to the enforcement of the Punjab Pre-emption Act, 1913.

12. A careful perusal of the impugned judgment of the learned Additional District Judge establishes by all means that all the relevant and important pieces of evidence available on the file had been thoroughly and critically examined by him. Reference may be made to para. 11 of the impugned judgment. I am convinced that the impugned judgment is based on a due appreciation of law and facts.

13. For what has been stated above, instant appeal fails and the same is dismissed leaving the parties to bear their own costs. S.A.K./A-310/L Appeal dismissed.