2010 PLP 403 (SCMR)

ANWAR ZAHEER JAMALI, J.

Through this civil petition, leave to appeal is sought by the legal heirs of Abdul Ghani against the judgment of the Lahore High Court dated 10-10-2008, passed in Regular Second Appeal No.194 of 1982, whereby the said appeal was dismissed and resultantly the judgment and decree dated 17-7-1982, passed by District Judge, Jhelum in C.A.No.371 of 1981, was maintained.

2. Chequerred history of this litigation, which spreads over a period of more than three decades, may be summarized as under.

3. On 24-1-1977, predecessor-in-interest of the petitioners had brought a suit for pre-emption against the respondent in respect of a house consisting of one room, Veranda and courtyard, built on a piece of land measuring about three Marlas, situated in Niya Mohallah, Jhelum City. The claim of the pre-emptor was based on such prevalent custom in the said locality. After filing of written statement by the respondent, wherein, inter alia, he had denied the existence of any such custom in the locality, and further usual proceedings in the case, t he suit of the petitioners' predecessor, being Civil Suit No.25 of 1997, was decreed, vide judgment dated 16-9-1981, passed by the Court of Civil Judge, Jhelum.

4. Feeling aggrieved by such judgment, on 30-9-1981, an appeal was preferred by the respondent before the Court of District Judge, Jhelum, being Civil Appeal No.371 of 1981. After notice and hearing the parties' to the litigation, this appeal of the respondent was allowed, vide judgment dated 17-7-1982, and consequently decree of pre-emption passed by the Civil Judge in favour of the petitioners' predecessor was set aside, and his suit was dismissed.

5. The petitioners' predecessor, aggrieved by the judgment of the first appellate Court, preferred Regular Second Appeal No.194 of 1982, before the Lahore High Court, Rawalpindi Bench on 15-8-1982, which was allowed, vide judgment dated 19-3-2001, and consequently the judgment of the first appellate Court was set aside and that of the Civil Court was restored. Aggrieved by such findings in the Regular Second Appeal No.194 of 1982, the respondent then filed Civil Petition for Leave to Appeal No.1234 of 2001 before this Court, wherein leave was granted and it was converted into Civil Appeal No.1217 of 2001. This civil appeal was, by consent, allowed in the following terms:

"Accordingly, by consent, the appeal is allowed and the judgment dated 19-3-2001, passed by learned High Court, Rawalpindi Bench in R.S.A. No.194 of 1982 is set aside and the matter is remitted back to the learned High Court, Rawalpindi Bench for decision afresh within a period three months."

6. In the said post remand proceedings the appeal preferred by the predecessor-in-interest of, the petitioners was dismissed, precisely for the reason that ample material was available on record to disprove the claim of the petitioners about the existence of custom of pre-emption in Niya Mohallah, Jhelum City, where the suit house is situated.

7. Chaudhry Mushtaq Ahmad Khan, learned counsel for the petitioners, in the first instance, made reference to an application under Order XLI, rule 27, C.P.C. dated 5-1-1982, moved on behalf of the respondent, which, according to him, remained pending till final disposal of the appeal before the first appellate Court of learned District Judge Jhelum, without any notice of said application to the petitioners, though the documents attached with the said application were taken into consideration by the appellate Court to the prejudice of the interest of the petitioners. His next submission was that overwhelming documentary evidence was brought on record by the petitioners' predecessor before the Court of Civil Judge, Jhelum, to prove his claim of existence of custom of pre-emption in Niya Mohallah, Jhelum City, as referred in the judgment of the Civil Court dated 15-9-1981, but the two appellate Courts discarded such documentary evidence in favour of the petitioners without any valid or cogent reason. In this regard, Chaudhry Mushtaq Ahmad Khan made specific reference to the judgment of District Judge, Jhelum in Civil Appeal No.315 of 1917 dated 31-10-1917, which, according to him, shows the existence of custom of pre-emption in whole City of Jhelum.

8. Conversely, Mr. Gulzarin Kian, learned counsel for the respondent; in his submissions argued that in the consent order of remand passed by this Court on. 29-11-2006, the chapter for grant of application under Order XLI, rule 27, C.P.C. by the first appellate Court or otherwise was closed, therefore, no such technical ground can be agitated now to prolong this litigation, by putting the parties to another round of litigation. He further contended that even if the documents produced with the said application under Order XLI, rule 27, C.P.C. are kept out of consideration, the petitioners have still no case on merits. In this regard, learned counsel made reference to the reported case of Lal Chand and others v. Hans Kumar and others AIR 1926 Lah. 108, which shows that the Lahore High Court in the year, 1926 has held that there was no custom of pre-emption in existence in the whole Jhelum City. The next judgment relied upon by the learned counsel is judgment of Lahore High Court in Regular Second Appeal No.58 of 1960 dated 15-5-1967, which is a judgment directly on the point as to whether the custom of pre-emption was in existence in Niya Mohallah, Jhelum City or not. Making detailed reference to this judgment, he contended that this judgment, by virtue of Article 189 of the Constitution, has a binding force and, therefore, the petitioners, relying on any other document, cannot be allowed to further drag the respondent in this litigation.

9. In reply to this submission, Chaudhry Mushtaq Ahmad Khan, contended that since the petitioners or their predecessor-in-interest were not party to such litigation and it is not a judgment in rem, therefore, such judgment of the Lahore High Court cannot be taken as a conclusive proof of the fact about non-existence of custom of pre-emption in. the Jhelum City.

10. We have carefully considered the submissions made by the learned counsel, and with their able assistance, gone through the material placed on record, which goes to show that firstly, the appellate Court of District Judge, Jhelum, while passing its judgment dated 17-7-1982 against, the petitioners has examined all the relevant documents on record in a prudent and careful manner and come to the conclusion that the petitioners, who were plaintiffs in the suit, have failed to prove the existence of custom of pre-emption in Niya Mohallah, Jhelum City at the time of promulgation of Punjab Pre-emption Act, 1913 and on that account non-suited the petitioners. Again in Regular Second Appeal No.194 of 1982, the learned Single Judge in Chambers of Lahore High Court has given due consideration to all the submissions of the parties' counsel and carefully perused the documents produced before him by both the parties in respect of their respective claim/defence. In our opinion, reliance placed by learned single Judge on paragraphs Nos.7 to 10 of the judgment of the Lahore High Court in Regular Second Appeal No.58 of 1960, which have been reproduced therein, is not out of place, rather it clearly dislodges the claim of the petitioners about prevalence of custom of pre-emption in Niya Mohallah, Jhelum City at the time of introduction of Punjab Pre-emption Act, 1913. This being the position, we find no substance in this petition, therefore, leave is refused and this petition is dismissed. M.H./A-72/SC Petition dismissed.