2004 PLP 537 (YLR)

Ss. 5(a) & 8(2)

Notification No.149/L. R. dated 16-6-1941

Effect-- Area falling outside Circular Road, Lahore had been exempted by virtue of such notification from-exercise of right of pre emption

Such notification was not evidence of existence of custom of pre emption before year 1913 in areas falling within Circular Road, Lahore. Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 rel. Muhammad Ehsan Waine for Petitioner. Sh. Khurshid Iqbal for Respondents. Date of hearing: 4th July, 2003. The petitioner Qaisar Mansoor Malik/defendant, through this revision petition under section 115, C.P.C., has assailed - the judgment and decree dated 4-12-1990 passed by Additional District Judge, Lahore, whereby the petitioner's appeal against the judgment and decree dated 24-2-1986 passed by Civil Judge, Lahore, decreeing respondents/plaintiffs pre-emption suit, under the Punjab Pre emption Act (No.1), 1913, Was dismissed, leaving the parties to bear their own costs.

2. The relevant facts are that the petitioner/defendant .purchased the house in dispute bearing No.1447-A, detailed in the plaint, situated in Kucha 'Sathan, inside Bhati Gate, Lahore, from pro forma respondents Nos.9 to 14 and one Mst. Rubina, vide registered sale-deed dated 18-7-1982. The respondents Nos. 1 to 8/plaintiffs, alleging to be owners of contiguous property bearing No. 1446-A, claimed superior right of pie-emption in respect of the aforesaid urban property in question, alleging prevalence of custom of pre-emption in the locality where the property in question is situated and instituted the present suit for pre-emption, under Punjab Pre-emption Act, 1913, claiming superior right of pre-emption on the basis of contiguity, as recognized in section 16, sixthly, of the aforesaid Act. The petitioner/defendant contested the suit.

3. The learned trial Court after framing the necessary issues and after recording the evidence produced by the parties, vide its judgment and decree dated 24-2-1986, decreed the suit , in favour of respondents/plaintiffs and against the petitioner/defendant, by' holding that respondents/plaintiffs had superior right of pre-emption, on the basis of contiguity and that the custom of pre-emption existed in the locality where the property in dispute is situated. The petitioner's/defendant's appeal, as mentioned above, was dismissed by Additional District Judge, Lahore, on 4-12-1990.

4. It is submitted by the learned counsel for the petitioner/defendant that the judgments and decrees of the Courts below suffer from misreading and non-reading of, evidence, none of the witnesses of respondents/plaintiffs stated a word about the existence of custom, whereas all the witnesses of the petitioner/defendant specifically stated that no custom existed in the locality for exercising the right of pre emption, the respondents/plaintiffs merely relied on an order dated 30-10-1984 (Exh.P.2) of the Honourable Supreme Court, whereby Civil Petitions Nos.748 and 749 of 1984, relating to different properties of other persons, were dismissed, the aforesaid order of the Honourable Supreme Court of dismissal of petitions for leave to appeal is not a judgment and even otherwise it relates to properties situated in Kucha Kaghzian, Bazar Hakeeman, inside Bhati Gate, Lahore, and not to Kucha Sathan, a distinct Sub-Division, where the house in dispute is situated, that P.W.1 Habib Ahmed, a witness produced by -the respondents/plaintiffs themselves, had stated that the house in dispute is a Katra and section 5(a) of the Punjab Pre-emption Act, (No.1) of 1913, provided that no right of pre-emption shall exist in respect of the sale of a Katra, therefore the property in dispute was not pre-emptible, that under section 7 of the aforesaid Act, a right of pre-emption was recognized in respect of urban immovable property when a custom of pre-emption was proved to have been in existence in such Town or Sub-Division at the time of the commencement of the Act, i.e. 14-3-1913, whereas no such evidence was led by the respondents/plaintiffs to prove the existence of custom in the locality in 1913 and mere reliance on Notification No. 149-L. R., dated 16-6-1941 issued under section 8(2) of the aforesaid Act (No.1). of 1913, which provided that no right of pre emption shall exist within the boundary of Municipality of .Lahore except so much of the city of Lahore as lies within the Circular Road, is not relevant, that the learned Appellate Court in para.11 of the judgment has incorrectly observed that the witnesses examined by respondents Nos.l to 8 have stated that respondents/plaintiffs' house was contiguous to the property in question whereas P.W.1 Habib Ahmed and P.W.2 Riaz Hussain have not said a single word to the said effect, and that the learned Appellate Court has incorrectly and illegally concluded in the same paragraph, that the title document (Exh.P.1) relied upon by the respondents/plaintiffs shows that their property adjoined the property in question, whereas Exh.P.1 is copy of the P.T.D. showing the transfer of House No.A/1446, situated in Said Mitha, Bazar, Lahore, in favour of Mst. Jhando Begum and others and it does not show that the property. in dispute, which is situated in another sub-division namely Kucha Sathan, is contiguous to respondents /plaintiffs' property. The learned counsel -for the petitioner, in support of his contention has also placed his reliance on Manzoor Hussain v. Allah Ditta 1990 MLD 743, Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through Legal Heirs and another 1993 SCMR 1477 and Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180.

5. The learned counsel for the respondents/plaintiffs while vehemently opposing the petition, has submitted that the plea that the property in dispute is a Katra is being raised for the first time before this Court and is beyond the pleadings of the petitioner/defendant and as such, this plea is liable to be rejected. Reliance, in this regard, is placed on Fazal Akbar v. Mst. Hussan Pari 1982 SCMR

738. The learned counsel has also placed his reliance on Mahant Kirpa Singh v. Maya Ram, Mst. Jai Kaur and others (No.22 Punjab Record 1910).

6. The misreading of evidence, by the Courts below in regard to the issue of contiguity pointed out by the learned counsel for the petitioner, referred above is minor in nature and I am not inclined to upset the concurrent finding of facts recorded by the Courts below, in this regard, in the revisional jurisdiction. It is therefore, held that the property owned by the respondents is contiguous to the property in dispute.

7. However, it has been established record, through the unrebutted evidence/statement of P. W. 1 Habib Ahmad that the property in dispute is a Katra. He was not declared hostile and his statement was recorded prior to the statements of rest of the three witnesses (P.W.2 to P.W.4) of the respondents/plaintiffs, including the statement of P. W.4 Muhammad Saeed, one of the plaintiffs and P. W .2 to P. W .4 did not state that P.W.1 Habib Ahmad had incorrectly stated that property in dispute I was a Katra. It is thus apparent on the face of the record that property in dispute is a Katra and whether it was pre-emptible of not- under the Punjab Pre-emption Act (No.1) of 1913, is a legal plea because inference drawn on the basis of facts found is a question of law and the petitioner cannot be stopped from taking this plea before this Court, for the first time in the revision petition. Section 5(a) of the Punjab Pre-emption Act (No.1) of 1913, provided that no right of pre-emption shall exist to respect of the sale of Katra. The sale -in question was therefore not pre-emptible and the Courts below drew wrong and illegal conclusion on the basis of facts found anti acted illegally in decreeing the respondents pre-emption suit in respect of sale of Katra and the judgments and decrees of the Courts below are, therefore, liable to be set aside on this ground alone.

8. Furthermore, section 7 of the Punjab Pre-emption Act (No.1) of 1913, provided that "the right of pre-emption shall exist in respect of urban immovable property in any town or Sub-Division when a custom of pre-emption is proved to have been in existence for such Town or Sub Division at the time of commencement of this Act and not otherwise". It is thus clear that in order to successfully claim a superior right of pre-emption in respect of urban immovable property, under the said Act, the respondents had to prove that the property was situated in a locality where custom of pre-emption was prevalent before 1913. Whereas, in the present case, the witnesses of the respondents have not said a single word about the existence of custom of pre-emption in the locality where the property in dispute is situated, before 14-3-1913, when the assent of Governor General of India was first published in Punjab Gazette and. the Punjab Pre-emption Act (No. 1) of 1913 came into force. In fact, the respondents witnesses did not say anything about the existence of custom of pre-emption in the locality what to say of the existence of custom of pre-emption before 1913. The right of pre-emption is a weak right and has to be proved by clear, primary and direct evidence. In this case the respondents have failed to prove by clear evidence that the property in dispute is situated in an old locality and the custom of pre-emption was in existence prior to 14-3-1913. The learned counsel for the petitioner, in this regard, has correctly placed his reliance on Manzoor Hussain v. Allah Ditta (supra) .and Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through Legal Heirs and another (supra). In the later mentioned judgment, it was held by the Honourable Supreme Court that existence of custom of pre-emption is to be proved by the plaintiff from the year 1905, in which the previous law i.e. The Punjab Pre-emption Act, 1905, was promulgated, which was superseded by the Punjab Pre emption Act (No.1) of 1913, because the custom which was not in existence during the currency of the Punjab Pre-emption Act, 1905, could not conceivably be held to have existed at the time of commencement of the Punjab Pre-emption Act (No.1) of 1913. In regard to the effect of Notification No.149/L.R. dated 16-6-1941, issued by the Board of Revenue under section 8(2) of the Punjab Pre-emotion Act (No.1) of 1913 which has been heavily relied upon by the Courts below in holding that the custom or pre-emotion existed in the locality, suffice it to say that the exercise of power under section 8(2) of the aforesaid Act was not a proof of the existence of custom of pre emption in the area. In Ch. Abdul Rashia v. Ch. Muhammad Tufail and others PLD 1992 SC 180, the issue whether the Courts could rely solely, on a Notification of the Government under section 8(2) of the aforesaid Act excluding a particular area at the time from the application of the Act, in taking the custom of pre-emotion to be proved as in existence at the commencement of the Punjab Pre-emotion Act (No.1) of 1913, was considered by the Honourable Supreme Court and it was held that:-- "the exercise of power under subsection (2) of section 8 of the Pre-emotion Act is not a proof of the existence of pre-emotion right in the area. It shows the exercise of the right of exempting in an area the exercise of the right of pre emotion, not of its existence. Secondly, even if it be assumed that it were to show or be a proof of the existence of the right of pre emption at the time of the notification that would be irrelevant for the purposes of section 7, wherein the requirement of time is at the commencement of the Pre-emotion Act'." It is thus clear that Notification No.149/L.R., dated 16-6-1941. merely an exercise of power under section 8(2) of the Punjab Fire-emotion Ac:, 1913, where under, the areas falling outside the Circular Road, Lahore, were exempted from the exercise of right of pre-emotion. It was not evidence of existence of custom or pre-emotion, before 1913, in the areas falling within the Circular Road, Lahore.

9. In view of the above mentioned, this revision petition, is accepted, the judgments and decrees passed by the Courts below are set aside and the suit of respondents Nos. 1 to 8/plaintiffs, is dismissed. However, there is no order as to costs. S.A.K./Q-34/L Petition allowed