1994 PLP 977 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Altaf Hussain and Niaz Hussain, petitioners herein, call in question the judgment dated 28‑2‑1993 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby their Regular Second Appeal No.154 of 1982 against the judgment of District Judge dated 16‑5‑1982, was dismissed. The facts of the case, stated in a nutshell, are that Plot No.BV/179 to BV/181 measuring 13 Marlas and 2 Sarsahis (397 square yards) situated in the Abadi of Pindigheb Town was purchased by Ghulam Muhammad respondent vide registered sale‑deed dated 5‑3‑1974. The petitioners filed a suit for pre emption on the ground of ownership of contiguous house. The respondent contested the suit and besides denying superior right of pre‑emption of the plaintiffs/petitioners also alleged that no custom of pre‑emption existed in the locality where the suit property was situated and that the suit for pre‑emption is not entertainable. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated 3‑7‑1981, decreed the suit of the plaintiffs/pre‑emptors. However, the first appeal filed by the respondent before the District Judge succeeded vide judgment and decree dated 16‑5‑1982 and the judgment of the trial Court was set aside and the suit of the plaintiffs/petitioners dismissed solely on the ground that the plaintiffs/petitioners had failed to prove the custom of pre‑emption in Mohallah Bhandanwala, newly‑constructed area where the suit property was situated. The petitioners preferred Regular Second Appeal which too, was dismissed vide the impugned judgment. Hence the instant petition for leave to appeal. We have heard Mirza Anwar Baig, Advocate, for the petitioners, and have perused the record of the case. The learned counsel for the petitioners vehemently argued that the suit property was situated in the town of Pindigheb where admittedly and according to the finding of all the three lower forums, the custom of pre emption was in existence since before the enforcement of Pre‑emption Act in 1913; and that the town was not sub‑divided into sub‑divisions so as to necessitate the proof of existence of pre‑emption in each sub‑division. The mere fact that the town is composed of several Mohallahs does not per se require the pre‑emptor to prove that in the Mohallah where the suit property is situated custom of pre‑emption is prevalent. In support of his argument he relied on the judgment of this Court in Nizamuddin v. Ghulam Muhammad (1992 SCMR 404). He also contended that the suit plot was part of the town of Pindigheb and was not added to the town or its municipal limits after 1913 and that the Pre‑emption Act since its enforcement is applicable to built area as well as vacant sites included in the town since prior to 1913. Leave is granted to consider the points agitated by the learned counsel for the petitioners. A.A./A‑1068/5 Leave granted.