1992 PLP 404 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted in these two appeals and two others to examine the nature of evidence and proof required for establishing a right of pre‑emption in respect of urban immovable property under section 7 of the Punjab Pre‑emption Act, 1913.

2. In Civil Appeal No.163/88 a house on Street No.11, Ward VII, Jhang City was the subject‑matter of pre‑emption claim. It was stated to be located in Mohallah Chunnoon Moriwala. The trial Court had rejected the pre‑emption claim in respect of this suit property on 5‑11‑1971 on the ground that the custom of pre‑emption was not proved to be in existence in the' locality of Mohallah Chunnoon Moriwala. On appeal, the District Judge reversed the finding holding that Mohallah Chunnoon Moriwala was in fact, as. appeared from the evidence led at the trial, a part of Mohallah Sharifan where admittedly the custom of pre‑emption was proved to exist before the enforcement of the Pre‑emption Act, 1913. The High Court declined to interfere in revision considering the finding of fact to be sound and to be based on material on record. Hence, the vendee is before us as the appellant and contending that Mohallah Chumioon Moriwala was in fact a different Sub Division of the Jhang Urban Area and the proof of custom in Mohallah Sharifan was not sufficient to allow the pre‑emption claim of the respondent.

3. In Civil Appeal No.392/1988 the sale of urban immovable property had taken place and the property was located outside Lahori Gate in Multan City. The contest centred round the existence of the right of pre‑emption in the locality prior to the enforcement of Pre‑emption Act. All the three Courts held that such a right did exist in the locality and decreed the claim. The vendee is appellant before us and his submission is the same namely that in fact no custom of pre‑emption existed in the locality.

4. Section 7 of the Punjab Pre‑emption Act, 1913 requiring interpretation is reproduced hereunder:‑‑ "Subject to the provisions of section 5 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." Section 5 to which it is subordinate is not at the moment relevant for our purposes. .

5. The first proposition that emerges from the law requiring interpretation is that if there is a custom of pre‑emption proved in respect of a town then a sale of urban immovable property in that town will be liable to pre‑emption. The next qualifying proposition also to be found in the enacted law is that if there is a sub‑division of the town then the custom of pre‑emption must be proved to exist in that sub‑division of the town. For the purposes of pre‑emption law the person who claims that a town is divided in sub‑divisions has to prove that in fact sub‑divisions exist in that town. Division of town into Mohallahs, Streets and Wards does not qualify as sub‑division for the purposes of pre‑emption law. This was made clear in Karim Ahmad v. Rahmat Elahi and others AIR 1946 Lah. 432 in the following words:‑‑‑ "A city may have Mohallahs and Bazars and lanes with specific names but from this fact it does not follow that they are recognised sub‑divisions for purposes of Pre‑emption Law. It is a difficult matter in each case to say whether a particular quarter of the town should or should not be treated as a sub‑division for purposes of Pre‑emption Law. The word "sub‑division" has not been defined in the Act but it has been held in several decisions of the Punjab Chief Court that it is not in all cases synonymous with a Mohallah and that the term sub division implies a quarter of a town well known and recognised and. does not mean the streets or lanes of the town." The test prescribed in the same judgment was in the words that follows:‑‑‑ "The test of a place being a sub‑division is that there should be something in its structure, situation and character which makes it a recognised unit for Pre‑emption Law. Because the name of a quarter is well known that fact does not necessarily make it a sub‑division for the purpose of the Act." On this test, any area added to the town by a notification at a subsequent date adding to the boundaries of the town would certainly be a sub‑division having a distinct identity of its own with regard to the applicability of the laws and urban character that it comes to acquire by such inclusion. There will be no presumption of extension of the pre‑emption law to such added area as has been consistently held in Mst. Maqsooda Begum v. Maulvi Abdul Haq and others PLD 1968 Lah. 897 and Pervez Akhtar v. Muhammad Arif PLD 1977 Lah. 394 in respect of such added area. In respect of such added area, the existence of a custom of pre‑emption before the relevant date has to be proved independently of the existence of custom in the town to which such area is added. Except for the fact that in one case the Mohallah is mentioned and in the other the location outside Lahori Gate, there is nothing to indicate in the evidence that there existed a sub‑division of the character and type indicated in the Pre‑emption Law. Undoubtedly, in respect of Jhang, the custom of pre emption was proved and so was it proved outside the Lahori Gate in Multan.

6. The impugned decisions of the Courts are sound in law and do not require interference. Both the appeals are, therefore, dismissed with costs. M.BA./N‑299/S Appeals dismissed.