P L D 1987 Lahore 205 (PLP)

AMJAD KHAN, J.‑A sale of a vacant plot situated in Mohallah Chjmny, Bhakkar City, made in favour of the petitioner Muhammad Din by means of a registered sale‑deed dated 6‑7‑1978 for a consideration of Rs. 9,000 was sued out to be pre‑empted by the respondent on the plea that his house adjoins the site in dispute on the North and that in the locality there exists the custom for pre‑emption. Defendant contested the suit by denying the assertions of the plaintiff and the suit was set down for trial on the following issues :‑ "(1) Whether the transaction in question is pre‑emptible ? O. P. P. (2) If Issue No. 1 is proved whether the plaintiff has superior right of pre‑emption against the defendant ? O. P. D. (3) Whether the sale price of Rs. 2,000 was fixed in good faith or actually paid by the defendant‑vendee ? O. P. D. (4) If Issue No. 3 is not proved, what was the market value of the suit land at the time of sale ? O. P. Parties. (5) Whether the plaintiff is estopped by his own act and conduct to file the present suit ? O. P. D. (6) Whether the defendant made any improvement over the suit land if so to what extent and with what effect ? O. P. D. (7) Relief."

2. Parties led the desired oral and documentary evidence which, on the plaintiff's side, comprised of 4 witnesses, the 5th being the special attorney of the plaintiff and apart from producing a copy of the sale‑deed Exh. P. 1, he also produced a copy of a decree‑sheet as Exh. P. 2 with regard to dismissal of a pre‑emption suit. In rebuttal, apart from the oral evidence defendant produced 4 documents, being a copy of a sale‑deed, a copy of a decree and two copies of orders. After considering this evidence, the then trial Judge held that custom for pre‑emption had not been proved in so far as the copies placed on the record related to dismissal of different suits and dismissed the suit of the plaintiff on 28‑6‑1982 with the findings adverse to him recorded under Issue No. 1.

3. Plaintiff challenged the decree of the dismissal of his suit in an appeal which was heard by a learned Additional District Judge before whom trial Court's finding under Issue No. 1 alone was assailed with the submission that trial Court had not given sound reasons for discrediting the evidence of the plaintiff. He observed :‑ "The trial Court should have very specifically stated that the suit land is situated in such and such Mohallah and the right of pre‑emption exists in such Mohallah or not." In result, he set aside the trial Court's decree only to the extent of Issue No. 1 and directed the trial Court to re‑appraise the evidence on the record and write a fresh judgment on the evidence on the record. Pursuant to such a remand, trial Judge took up the case again and reconsidered the evidence to observe that the property in dispute is located within the municipal limits of Bhakkar City and is urban immovable property, so that in order to succeed, it was incumbent upon the plaintiff to have proved the existence of custom of pre‑emption in the vicinity of the suit property, as had even been asserted by him in para. 4 of the plaint. Despite it, he proceeded to accept the oral evidence of P. W. 1 with regard to some pre‑emption suits having been filed, without even a copy of such judgments produced to show that the question about the existence of custom may ever have been raised in any of those suits. He also considered that capital was deserved to be made by the plaintiff out of the failure of the defendant's counsel to question the statement of P. W. 1 during his cross‑examination about the existence of custom and thought that this fact lent support to the case of the plaintiff which was also sought to be supported by him on the basis of the statement of P. W. 4 made to the effect that the vendee himself had desired an inflated sale price to be entered in the sale‑deed in suit as Rs. 9,000 instead of Rs. 5,000 for fear of pre‑emption suit which fact, according to the trial Judge, indicated the existence of custom for pre‑emption. He also utilized the copy of the decree Exh. P. 2 in support of the plaintiff despite it relating to the dismissal of the suit where about he remarked "This Exh. P. 2 is indicative of the fact that a suit relating to an immovable property located within limits of Bhakkar City was filed but pre‑emptor could not succeed in getting decree in his favour because he failed to prove his ground of contiguity of his property with property in the suit, there- fore, his suit was dismissed. Court while giving judgment has not made any observation that custom of pre‑emption does not prevail in the Bhakkar. Although Exh. P. 2 shows that suit was dismissed yet it does not render Exh. P. 2 useless for purposes of proving existence of custom of pre‑emption in the Bhakkar City before 1913, therefore, keeping in view oral evidence coupled with Exh. P. 2, 1 am constrained to hold that custom of pre‑emption existed in Bhakkar City before 1913." As regards the evidence of the defendant his observation was merely this :‑ "In rebuttal the defendant has produced sale‑deed Exh. D. 1, copy of decree Exh. D. 2, attested order of Court Exh. D. 3 and a copy of order Exh. D.

4. So far as orders of the Court produced by the defendant are concerned these do not relate to the period before 1913, therefore, these do not stand at the higher footing than Exh. P. 2 and therefore, do not sufficiently rebut the documentary or oral evidence of the plaintiff."

4. With this treatment of the case, trial Judge decreed the suit on 18‑1‑1984. The vendee‑defendant maintained an appeal thereagainst wherein a specific grievance was made that a specific issue with regard to the existence of custom of pre‑emption in the locality had not been framed and instead Issue No. 1, which related merely to the pre‑emptibility of the transaction of sale, could not have enabled a decision one way or the other to be recorded even about the existence of custom of pre‑emption in the locality.

5. The appeal in the second round, was heard by the learned District Judge himself and he dismissed it by his judgment dated 18‑11‑1984 by placing reliance on the oral evidence of the plaintiff and also concluding :‑ "Again, the plaintiff had brought on the record a copy of the judgment Exh. P. 2, which clearly showed that the custom of pre‑emption existed in Bhakkar Town before the commencement of Punjab Pre‑emption Act, 1911." In this view of the matter, he upheld the finding of the trial Court with regard to the existance of custom of pre‑emption. Vendee has now come up to this Court on revision.

6. Learned counsel urged with vehemence that the existence of custom is not liable to be held to have been proved on the basis of verbal statements of a few witnesses who had neither disclosed any specific means of their knowledge nor supported their assertion with judicial precedents. He has also taken strong exception to the above‑quoted observation of the learned District Judge regarding Exh. P. 2 (which he has described to be a copy of a judgment) and submits that he has passed the judgment without adequate perusal of the record. Trial Court's record is present before m and whereas Exh. P. 2 is a copy of a decree sheet (and not that of a judgment), whereby a pre‑emption suit with regard to a house was dismissed) on 18‑12‑1911. Neither is there any reason mentioned for the dismissal of the relevant suit nor does it appear from this copy that the question of Gusto of pre‑emption may have been raised therein. It is really surprising as to how did the learned District Judge conclude on the basis of this document "that the custom of pre‑emption existed in Bhakkar Town before the commencement of the Punjab Pre‑emption Act, 1911 ? Superficial treatment accorded by the District Judge to this case stands exposed by this document (Exh. P. 2) and since this is the only document mentioned by him in support of his conclusion, therefore, the same is bound to collapse. For the guidance of the learned District Judge, it may be mentioned that there was no Punjab Pre‑emption Act ever passed in the year 1911. The present Act was passed in the year 1913 which was proceeded by the Punjab Pre‑emption Act, 1905 and since the requirement of section 7 of the Act of 1913 is that there should have been in existence the custom of pre‑emption at the time of the enforcement of this Act, therefore, it is only rational to expect a plaintiff to prove the existence of custom of pre‑emption from the year 1905, without which a plaintiff cannot succeed because even in the Act of 1905 the requirement was the same and it does not require much logic to bring out that a custom which may not have been existing during the currency of the Act, 1905 cannot conceivably be held to have existed at the time of the commencement of the Act of 1913. On the present record there does not exist even a remote justification for returning a finding in favour of the plaintiff with regard to the existence of custom for pre‑emption within the requirement of section 7 of the Punjab Pre‑emption Act, 1913.

6. Upshot of the foregoing is that this civil revision is accepted and setting aside the judgment and decree dated 18‑11‑1984 passed by the District Judge Bhakkar the suit of the plaintiff is ordered to be dismissed with costs throughout. A. A./M‑74/1. Revision accepted