Backdrop of the instant controversy is that Abdul Ghani appellant filed a suit for pre-emption against the respondent regarding the suit land situated in Abadi Naya Mohalla, Jhelum bearing No, B-IV4.S.9 and B-IV.S.10. The land was originally owned by Asmat Ara and was sold through three separate sale-deeds registered on 26.01.1976. The possession of the suit property was delivered to the vendees. Pre-emptor claimed his superior right, being co-owner and having common wall. The respondent resisted the suit and denied superior right of the pre-emptor. Learned trial Court, after framing eight issues, recorded evidence of the parties, and on conclusion of the trial, granted decree of pre-emption to the pre-emptor/plaintiff, vide judgment and decree dated 16.09.1981. The respondent successfully assailed the judgment and decree of learned trial Court before learned First Appellate Court. Learned lower appellate Court, while accepting the appeal set aside the judgment and decree of learned trial Court and upheld the finding of the trial Court. Regular second appeal, challenging the appellate decree, was accepted vide judgment dated 19.03.2001, wherein the judgment and decree of trial Court was upheld. The judgment of this Court, in regular second appeal, was challenged before the Hon'ble Supreme Court in Civil Appeal No, 3217/2001 where, by consensus, the judgment of this Court was set aside and the case was remanded back to this Court, for decision afresh.
2. Learned counsel for the appellant has contended that learned appellate Court while passing the impugned judgment and decree, has considered Peeran Ghayab ( ) and Naya Mohalla ( )as one locality, while these are two different localities. It is contended that judgment dated 21.10.1959 (Exh.D-2) pertains to Peeran GI ayab and finding therein has no application to the case in hands. Learned counsel has vehemently argued that judgments, which the lower appellate Court, has discussed in the impugned judgment, cannot be received in evidence in the form of additional evidence. He added that when these judgments were received, then providing an opportunity to the petitioner for rebuttal, was the right course, which was not adopted. Having not done so, learned Court has committed procedural mistake. Learned counsel, after having gone through Exhibits P-7 and 8 has submitted that Naya Mohalla is in existence since 1984. Learned counsel has submitted that learned appellate Court, while differing, with the finding of learned trial Court, was under an obligation to gave reasons in it's judgments, on the points of variance. Learned counsel, in support of this contention, has referred to the case of 'Mr. Haji Khan and 11 others Vs. Mir Aijaz Ali and 2 others" (1981 SC 302).
3. Learned counsel for the respondents fully supported the judgment and has contended that case has been remanded to this Court for a decision on the point as to whether any custom, relating to the right of pre-emption existed in Naya Mohalla. Learned counsel went on to argue that existence of custom is required under law to be in existence, prior to 1905 i,e, the time when old law existed.
Learned counsel supported this contention by referring to the cases of "Dr. Iqbal Ahmad Chaudhry Vs Muhammad Inayat through Legal Heirs and another" (1993 SCM R 1477). Learned counsel discussed and went through Exh.P-4, a judgment dated 15.05.1667 rendered in RSA No, 58/1965, wherein a property situated in Naya Mohalla, Jhelum was in issue. He has contended that the pre- emptor, in these proceedings, had placed reliance on all the documents and evidence, which the appellant (in the case in hands) has placed reliance. It has been held in RSA No, 58 that no custom regarding pre-emption was in existence in this locality. Learned counsel has stated that identical issue came up for consideration in the judgments in the cases of "Diwan, Chand Vs Nizamdin and others" (AIR 1923 Lahore 443) and "Lal Chand and others Vs Hans Kumar and others" (AIR 1926 Lahore 108) and it was held in these judgments that no custom of pre-emption, was prevailing in the locality. Learned counsel then referred to the case of "Lal Chand Vs Kartar Singh" (AIR 1947 Lahore 265), wherein, relying upon Punjab Pre-emption Act (I of 1913), it was found by the Court that there is no evidence of a prevailing of pre-emption in the locality. Learned counsel while discussing the oral testimony of the witnesses, has submitted that PW-1 (Abdul Karim) is 74 years of age and is ignorant about any custom of pre-emption in the locality. Learned counsel then went through the statement of PW-2 who stated that a suit for pre-emption was filed against him, which was decreed in the year 1973. Statement of PW-3 pertains to another property, which has no nexus with the property, subject matter of the suit property.
4. Heard learned counsel for the parties and record perused.
5. The only question which requires determination, in the instant controversy pertains to the existence or otherwise of the custom of pre-emption on under Punjab Pre-emption Act, in "Nia Mohallah Jhelum." In considering that custom of pre-emption prevails, in a particular Mohallah or a sub-division within the meanings of Section 7 of Act I of 1913, the proof of an adjoining area or neighboring Mohallah or sub-division, carries no value. It can be a supplementary proof and by itself is not sufficient to establish the existence of custom in neighboring sub-division. It is also well settled that proof of prevailing custom, must relate to the town where town is not divided into sub- division and in such circumstances, the inquiry cannot be confined to a particular Mohallah or street. The onus to prove prevailing custom lies heavily on the plaintiff. With these settled principles.
I will proceed to decide the case, in hands.
6. This fact is mentioned in various judgments that "Nia Mohallah", which was also known as "Shamali Mohallah" or "Upperla Mohallah" is situated in Abadi of "Piran Ghaib".
7.Mr. M.B.Kol in his judgment dated 3.4.1905 described the city of Jhelum as a comparatively New Town and gained it's importance after British occupation, Jhelum, as it appears in the judgment in the case of Lal Chand and others (AIR 1926 Lah. 109), was a town of recent growth, Jhelum was notified as a Town vide the Punjab gazette Notification No, 677 dated 10.11.1908. It had not been divided into subdivisions. The only recognized sub-division was "Machine Mohallah" (the information appears in AIR 1937 Lahore 443). While deciding Civil Appeal No, 218 of 1898 titled as "Bahawal Bukhsh Vs. Muhammad Bukhsh", Divisional Judge Jhelum, in his judgment dated 26.10.1898, expressed that "Nia Mohallah" grew and formed the suburb of Jhelum by 1898. Strangers acquired the land and had built their houses. The land of "Piran Ghaib" at the relevant time, was predominantly agricultural land. "Nia Mohallah" came into existence, after 1860 and from perusal of Ex.D-4, the Mohallah falls within the vicinity of Abadi " Piran Ghaib".
8. The question of prevalence of the custom of pre-emption in "Nia Mohallah", remained in issue before various Courts, more than once. It will be appropriate to mention how this issue was dealt by the Courts:--
(i) "Munshi Chiragh Din Vs Fazal Karim" The pre-emption suit decided on 28.2.1959 by Ch. Abdur Rehman Bhatti Admn. Civil Judge Jhelum, who dismissed the suit. His judgment was challenged in appeal, which befel the same fate on 21.10.1959 and decision of learned trial Court was upheld. The decree of learned trial Court and the appellate decree was challenged in RSA No, 58/1960, which was decided by Mr. Justice S.A. Mahmood of this Court (as his lordship then was). The R.S.A was dismissed vide order dated 15.5.1967. This being latest judgment by this Court, wherein the question of existence of a custom of preemption in "Nia Mohallah" Jhelum came-up for consideration and it was held that no custom of pre-emption prevailed in "Nia Mohallah."
(iv) In Civil Appeal titled "Bahawal Bukhsh vs. Muhammad Bukhsh" (Appeal No, 218/1898), it was observed by Divisional Judge, Jhelum in his judgment dated 26.10.1898 that not a single instance had been quoted to prove such a custom in this suburb (Nia Mohallah of Jhelum). It was held that plaintiff failed to prove that custom as to the existence of the right of pre-emption in "Nia Mohallah".
(iii) In Civil Appeal No, 440/6 of 1904 titled "Abdul Majeed and others Vs. Abdur Rehman and others", Additional Divisional Judge vide judgment dated 22.6.1905 found that there is no proof of existence of custom ,of pre-emption in Jhelum Town.
(iv) Civil Appeal No, 160 of 1910 titled "Allah Ditta Vs. Diwan Mehndi Khan and others" was decided by Divisional Judge Jhelum on 31.5.1911, holding therein that no custom for pre-emption exists in "Shumali" "Upperla" or "Nia Mohallah".
(v) "Farzand Ali Vs. Habib Ullah and others" (Civil Appeal No, 163/1905) came up for decision before Mr. M.B.Kol, Divisional Judge, Jhelum, who in his decision dated 31.5.1911 based his conclusion on two earlier decisions of the Divisional Judges and found that in "Nia Mohallah Jhelum City, the existence of custom of pre-emption has not been proved.
(vi) A specific question as to the existence of custom of pre-emption with regard to a House in "Mouza Dhoak Abdullah" situated at 400 yards from "Nia Mohallah" in "Mouza Piran Ghaib", in a pre- emption suit, came up for consideration before learned Civil Judge in the case of "Ghulam Muhammad Vs. Muhammad Razzaq" Mr. Atta ul Mohsin, learned Senior Civil Judge, Jhelum in his judgment dated 1.6.1981 answered the question in negative.
9. Besides the above, the Civil Courts in various other civil suits, after framing specific issue, on the existence of custom of pre-emption in "Nia Mohallah" have been examining the issue. Mr. Abdur Rehman Bhatti while dealing with the suit of pre-emption pertaining to a suit property in Mohallah Malahan, has also held that custom of pre-emption existed in that Mohallah. Admn. Civil Judge Jhelum in another suit titled as "Monshi Chiragh Din Vs. Fazal Karim" decided on 28.9.1959 held that custom of pre-emption existed in Nia Mohallah. While holding so, he based his findings on his previously decided civil suit, which was decreed on 19.7.1958. This decision was assailed in appeal and judgment dated 28.9.1959 was set-aside by the appellate Court, wherein it was held that custom of pre-emption does not exist in Nia Mohallah, rather it did not exist generally in the down of Jhelum. Mr. Munir Ahmad Mughal, Civil Judge Jhelum while deciding suit titled "Sheikh Abdul Vs. Muhammad Rafique found that custom of pre-emption existed in Nia Mohallah in Jhelum City.
While passing the judgment the above judgments were not before him and the matter was decided without considering these judgments. In another case, it was observed by the Civil Court that custom of 'pre-emption prevails. Mr. Hassan Nawaz Chaudhry, then Civil Judge/Senior Civil Judge in his decision dated 22.2.1976, while Folding that custom of pre-emption generally prevailed in the Town of Jhelum decreed the, suit of the pre-emptor with regard to properly situated in "Mohallah Misterian".
10. For the purpose of determination of the existence or otherwise of the custom of pre-emption, in Nia Mohallah Jhelum, two judgment require specific mention Civil Appeal titled "Bahawal Bukhsh Vs. Muhammad Bakhsh" which was decided on 20.10.1898, wherein it was held by Divisional Judge that no custom of pre-emption prevails in Nia Mohallah Jhelum. Learned Divisional Judge examined that Nia Mohallah was not in existence in the year 1860, but ever since, it has grown in existence and formed part of Jhelum Town. There was hardly a single instance of special custom regarding pre-emption. The judgment is by this Court. The only case, which was decided by this Court, was RSA No, 58/1996 titled "Chiragh Din Vs. Fazal Karim" decided by Mr. Justice S.A Mehmood, as his lordship then was. It has been held there in that no custom of pre-emption existed in Nia Mohallah or Shamali Mohallah and also that Custom of pre-emption did not exist throughout the town of Jhelum. In these two decision of which one is most ancient and the other is the recent one, the question of prevailing of custom of pre-emption was answered in negative,
11. The above judgments, although by the Courts of first instance, cannot be ignored as the adjudication pronounced in these judgments is upon the status of matter of public nature. A judgment, decree or order, which relates to a matter of public nature e.g. the existence of a right of way or of a general custom or usage, falls within the exception clause of Section 43 of the Evidence Act, 1872 and Article 56 of Qanun-e-Shahadat Order, 1984. Such decisions are relevant. While holding so, I am fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of 'Ata Muhammad and 6 others Vs. The State" (1985 SCM R 181). The similar view has also been taken by the Privy Council in the case of 'Mt. Subhani and others Vs. Nawab and others" (AIR 1941 Privy Council 21).
12. Viewing the case of the appellant and the evidence produced by him in favour of existence of custom of pre-emption and comparing the same with reference to the aforementioned judgment, it is concluded that appellant has failed to prove that custom of pre-emotion prevailed in the Nia Mohallah Jhelum. The witnesses of the appellant have not stated anything with reference to any official record or on the basis of a authentic material that custom of pre-emption prevails. I have no hesitation to hold that custom of pre-emption in Nia Mohallah did not exist at the time of enforcement of the Act of 1913.
13. I am not convinced with arguments of learned counsel for the respondent that by printing the appellant to place on record certain judgments, the Court has not provided opportunity to the plaintiff to rebut the same and cross-examine the witnesses. These judgments, which relate to a question general nature, are relevant and can be considered even when they are not produced formally in evidence.
14. For the foregoing, this appeal is without any merit and the same is accordingly dismissed, with no orders as to the costs.