1990 PLP 767 (MLD)

Alla‑ud‑Din v. Mst. Farkhanda Akhtar P L D 1953 Lah.131 ref. Kanwar Akhtar Ali with M. Zafar Yaseen for Appellant. Mirza Manzoor Ahmad for Respondents. Date of hearing: 6th November, 1989. This Regular Second Appeal arises from the judgment and decree dated 28‑3‑1981 of the learned District Judge, Multan, whereby he accepted the respondents‑vendees' appeal and dismissed the appellant's suit for pre‑emption.

2. The respondents purchased land measuring 3 Kanals 2 Marlas by a registered sale‑deed dated 27‑6‑1966 ostensibly for a sum of Rs. 27,

000. The appellant brought the suit to pre‑empt it on the grounds that while he was a contiguous owner as also a Khewatdar in the estate Taraf Ismail, the respondents‑vendees being outsiders had no such qualification. He claimed that the ostensible amount was fake and fictitious as actually only a sum of Rs.20,000 was fixed in good faith and paid to the vendors.

3. The respondents‑vendees contested the suit pleading that the land in question being evacuee property was not amenable to pre‑emption; neither the suit was maintainable nor the Court had jurisdiction to entertain it; it was bad for partial pre‑emption: was undervalued for court‑fee and the deficiency therein made up after the limitation was ineffective; that the appellant was precluded by estoppel to seek its pre‑emption; that court‑fee had to be paid on the cost of improvements which they had effected in the meantime at a great expense; and lastly that the so‑called land in question having had become urban immovable property was not pre‑emptible chiefly because the appellant did not assert prevalence of custom in the locality. They explained that the property in question being an outgrowth (Nai Abadi) of the main town Multan, there was no question of existence of custom of pre‑emption in it at the time of enforcement of the Punjab Pre‑emption Act, 1913, and that thus it could not be conceivably subjected to the incidence of pre‑emption.

4. The trial Court framed about 16 issues arising out of these divergent pleadings, recorded evidence and decreed the suit vide its judgment dated 30‑7 1977. Earlier,, there had been some intermediary orders and revisions etc. too, but it is not much necessary to give any detail about them. There was an appeal from the final decree which as already marked was accepted and the appellant's suit was dismissed.

5. Practically no question of law was involved in this R.S.A. The crucial point on which hinged the decision was whether the subject‑matter of the sale was agricultural land or urban immovable property. The appellant described it in his plaint as agricultural land, referring to precise khasra numbers out of which it was sold as two separate pieces each measuring respectively 1 Kanal 14 Marlas and 1 Kanal 8 Marlas and sought to pre‑empt it primarily as Khewatdar. Not only that, he valued the suit for court‑fee and jurisdiction according to its fixed land revenue of Rs.8.50. He adhered to this stance even subsequently when the respondents in their written statement took up the plea that it was urban immovable property being an outgrowth of the main town of Multan and required court‑fee on its market value. A preliminary issue on this point was decided against him, but his insistence to dub it as land in the above four ways was a great index of the mind to base his better right of pre‑emption on Section 15 of the Punjab Pre‑emption Act, 1913 rather than Section 16.

6. The plaint no doubt also mentioned that the appellant was a contiguous owner and he sought support for this fact from considerable evidence both documentary as well as oral, but the contiguity was completely inconsequential m the absence of claiming the subject‑matter of the sale to be urban immovable property contemplated by Section 16 of the Act. An assertion to that effect was essentially required to be made in the plaint, but here the appellant. chose to controvert it and even hotly contested an issue framed thereabout. His own plaint would accordingly preclude him from changing his stance. Another reason to disentitle him from taking benefit of the so‑called contiguity was that he did not aver in the plaint that custom of pre‑emption existed in the locality or the sub division of the town. Such a qualification enures in relation to the urban immovable property if only there existed custom of pre‑empting sales eversince the enforcement of the Punjab Pre‑emption Act, 1913. In. Muhammad Din v. Sh.Faqir Muhammad P L D 1987 Lah. 205 it was emphasized that custom should exist not only in 1913 but also in 1905. The matter of an outgrowth or expansion of town in its outskirts was altogether different as being erstwhile villages, there was no question of applying custom to the sales of lands situate therein. Those . fell under section 15, but due to outgrowth their merger in the Abadi of the town subsequent to enforcement of the Punjab Pre‑emption Act, 1913, would make them totally immune from its applicability. This was the view held in the Muhammad Din's case and there was no reason to differ with it.

7. Next the sale‑deed as also the evidence particularly the testimony of the Local Commissioner and : his report Exh.P.13 established that what the respondents purchased were small plots of certain Khasra Numbers. They had B already built upon them, but even excluding subsequent improvements, the plots being located in the town were not subject to custom. Elahi Bakhsh and others v. Allah Bakhsh and others 1981 S C M R 723, Pir Gul Badshah v. Sardar Muhammad Nasir Khan 1989 C L C 225 and Mehr Din v. Dr.Bashir Ahmad Khan and 2 others 1985 S C M R 1 consistently enunciated this principle. The present case being on all fours with them would certainly be governed by it.

8. Mr.Kanwar Akhtar Ali representing the appellant relied upon a few instances comprised in Exhs.P.9, P.20 and P.21 of existence of custom in the Taraf Ismail where the plots in dispute were situate. He tried to distinguish the judgment dated 23‑12‑1966 Exh.D.17 tendered in rebuttal to prove absence of custom in this estate on the grounds firstly, that no specific issue in regard to prevalence of custom was framed in it, and secondly that it pertained to a shop which even as a general rule contained in Section 5 of the Punjab Pre‑emption Act was exempt from pre‑emption irrespective of existence or absence of custom. He claimed that omission in the plaint to assert existence of the custom in the locality was not fatal and placed reliance upon Mst.Hayat Beg m v. Faiz Ahmad C and another P L D 1966 Lah. 581 in this behalf. Lastly he urged that tine reasons enumerated by the Court of the first instance in its judgment were not met squarely by the lower appellate Court in writing the impugned judgment of reversal and, therefore, the latter was vitiated.

9. Giving my anxious thought to the above contentions, I do not find if any one of them would be availing to the appellant Omission to plead prevalence of custom cannot be treated lightly. It was axiomatic that a party cannot be allowed to build up his case against pleadings. The genesis of binding parties by their pleadings was to insist for crystallising the points of difference in order to narrow down the controversy. Otherwise, there may be a tendency to spring surprises to the opposite party and enter into roving inquiries. Alla‑ud‑Din v. Mst. Farkhanda Akhtar P L D 1953 Lahore 131 may be referred to. Thus in the absence of plea to that effect it was not open to the appellant to try to prove the existence of custom by Exhs.P.9, P.20, P.21 or any other evidence whatsoever. Assuming custom existed in the down‑town, its prevalence in the outskirts or out growths could not be legally conceived in view of the rule envisaged in Mst.Maqsooda Begum v. Maulvi Abdul Haq and others P L D 1968 Lah.

897. Nor could it be applied to plots carved out of agricultural land, as in this case. The ratio of the cases reported in the above citations of Elahi Bakhsh and others, Pir Gul Bakhsh and Mehr Din exempts such "Nai Abadis" from the onslaught of custom available in the older portions of the town. The trial Court lost sight of this aspect of the case and therefore, all other reasons advanced by it to the contrary were completely inapt. Failing to discuss them point wise on the part of the lower appellate Court would not knock out its judgment, as it rested on comparatively much more probative points showing neither arbitrariness nor caprice.

10. As a result, the appeal is dismissed leaving the parties to bear their own costs. H.B.T./1‑166/L Appeal dismissed.