1994 PLP 529 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances: In respect of sale of a portion of House No.1269/14, Ward No.10, situate in Mohallah Basti Pareran, outside Lohari Gate, Multan City through a registered sale‑deed dated 17‑2‑1973 in favour of the appellant, respondent filed a suit for possession through pre‑emption on 12‑2‑1974 on the ground of being the owner of the contiguous property. Appellant resisted the suit on the ground that there was no custom of pre‑emption in the area as it was a new Abadi. Relevant issue as to whether the custom of pre‑emption prevails in the area where the suit property is situated at the time of enforcement of Pre emption Act, 1913', was framed. The issue was decided in favour of the plaintiff‑respondent and the suit decreed by the learned Civil Judge, 1st Class, Multan, vide judgment and decree dated 17‑6‑1980. The appellant's first appeal filed before the Additional District Judge, Multan on 4‑5‑1982 and the second before the High Court on 27‑1‑1985.

2. At the time of hearing of the petition for leave to appeal, it was recorded that "learned counsel drew our attention to the statement of the plaintiff Fateh Muhammad who had admitted in his cross‑examination that the house in question was situated in the locality known as `Babayki Marhi' which area was under cultivation until the creation of Pakistan and, thereafter, it was converted gradually into residential area and argued that no suit for pre emption could be successfully brought in respect of a house situated in the new Abadi and an outgrowth of the City. This submission is supported by Mst. Maqsooda Begun v. Maulvi Abdul Haq and others (PLD 1968 Lahore 897) and Fazal Karim v. Muhammad Afzal and others (1982 SCMR 997)". Leave was accordingly granted.

3. In support of the appeal, the learned counsel for the appellant has referred to the statement of the plaintiff‑respondent who appeared as his sole witness wherein he stated in the cross‑examination that "the disputed property is not within the boundary wall of Multan City. Rather it is outside the boundary wall. Disputed house is less than a furlong away from Mohallah Sultan Garh. The area in which the house in dispute is situated is called `Babayki Marhi' and Chah Bahawal Bakhshwala. In this area there is no more any well but it is being inhabited". It was further added that "it is correct that before the creation of Pakistan the area was agricultural. After the creation of Pakistan, habitation started in this area". Learned counsel for the appellant read section 7 of the Pre‑emption Act, 1913 which is to the following effect:‑‑

"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." Then, he read section 3(3) of the aforesaid Act which is as follows:‑‑

"S.3(3) `Urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land." Learned counsel submitted that reading the two provisions together it is plain that a right of pre‑emption shall exist in respect of urban immovable property other than agricultural land 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. Learned counsel submitted that the Act came into force in 1913 and a custom must prevail at that time before a suit for pre‑emption can be filed. In the case in hand the area was agricultural land till the creation of the country and the Abadi started thereafter. He read out the aforequoted judgments in support of his contention.

4. Learned counsel for the respondent referred to EXhS.P11 and P5 certified copies of the judgments of the Civil Courts delivered on the 12th August, 1907 and the 29th June, 1949, respectively recognizing prevalence of custom of pre‑emption in Basti Pareran and Taraf Mubarik and submitted that the disputed house was situated in these areas. He secondly submitted that the point agitated now was not urged before the first appellate Court.

5. We have heard the learned counsel for the parties and perused the record with their assistance. The appellant had resisted the suit by saying that custom of pre‑emption did not prevail in the area as it was a new Abadi. An issue was accordingly framed. Plaintiff‑respondent's own statement was that it is correct that before the creation of Pakistan, the area was agricultural land and after the creation of Pakistan Abadi began. From this it is quite plain that in 1913 the custom of pre‑emption did not prevail in the area, therefore, the suit for possession by pre‑emption did not lie under the provisions of Pre emption Act. Judgments quoted by the learned counsel for the appellant support him. Nothing has been urged to the contrary. Unfortunately, attention was not focused by the Courts below on the point with reference to the facts and the legal provisions. Contention of the learned counsel for the respondent that before the first appellate Court the appellant had only argued about the matter of court‑fee anti not about the non‑pre‑emptibility is to be considered in the context that the learned first appellate Court recorded that the first contention is about the court‑fee but did not record what was the second or third. Then the point was argued, without objection, before the second appellate Court. This was the crux of the controversy. As seen above the statutory provisions and precedents make it quite plain that the suit did not lie in respect of the new Abadi established after 1947. Therefore, the appeal is allowed. The judgments and decrees of the Courts below set aside and suit dismissed. However, in the circumstances, the parties are left to bear their own costs. A.A./ N‑359/S Appeal accepted.