' MIAN SAQIB NISAR, J.---These .Appeals, with leave of the Court, have arisen out of the pre-emption matters, initiated by the respondents-plaintiffs against the appellants-defendants with respect to urban immovable properties; the parties were put to trial and the learned Civil Judge while holding that the respondents have a superior right of pre-emption and that as the learned counsel for the parties have admitted before the Court that custom of pre-emption exists in the area, where the suit property is situated, decreed the suits. The appeals of the appellants failed and their R.S.As.
Before the High Court could also not succeed.
Leave to appeal, in these cases, was granted to examine if, the right of pre-emption vesting in favour of the respondents was subject to the proof of existence of custom in the vicinity in terms of section 7 of the Punjab Pre-emption Act, 1913 (The Act), the onus whereof was on the respondents- plaintiffs, but they neither pleaded the custom nor has proved the same, thus the effect thereof.
2. Learned counsel for the appellants has argued that the custom was not pleased by the respondents in the plant, which was sine qua non for the conferment and the exercise of right of pre-emption in terms of section 7 of the Act; the fact which is not averred in the plaint cannot be proved through evidence, as no litigant can be allowed to prove a case beyond the scope of his pleadings; without prejudice and conceding the above pleas, it is submitted that the respondents in these cases have adduced no evidence about the existence of custom; the admission allegedly attributed to the counsel for the appellants by the trial Court, about the existence of the custom, as is mentioned in the judgment, of the Court, is erroneous and factually incorrect, thus on the first available opportunity, the alleged admission was duly refuted, as it is so categorically stated in the grounds of appeal before the District Judge; this fact was also controverted in the grounds of second appeal before the High Court. In support of his contentions that the custom, in a cause of pre-emption, regarding an urban immovable property, must be proved through evidence by the pre-emptors, learned counsel for the appellants has relied upon the cases reported as Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through legal heirs and another (1993 SCMR 1477), Nizam- ud-Din v. Ghulam Muhammad (1992 SCMR 404), Karim Ahmad v. Rahmat Elahi and others (AIR 1946 Lahore 432), and Muhammad Yunas Khan v. Barkatullah (AIR 1946 Peshawar 5).
3. While defending the impugned judgment, learned counsel for the respondents though has conceded that the suit properties are urban in character; the claim of the respondents-plaintiffs is also based upon section 7 of the Act, it is, however, submitted that the appellants in the written statement have not denied the fact of non-existence of custom in the specific and categorical terms, rather in that statement (WS) they have averred that the respondents-plaintiffs prior to the sale in their favour were approached by the vendor etc. Querying if they were interested to buy the property; to the same effect are the statements of the appellants/defendants' witnesses, thus from the above, it should be concluded that the appellants in fact have conceded to the existence of the custom, which should be taken to be an admission on their part; according to the learned Advocate Supreme Court, this plea is fortified by the fact that no issue about the existence of custom was framed by the trial Court and the appellants never agitated for the framing thereof.
Above all, the counsel for the appellants admitted before the trial Court, that the custom exists in the area, as it is so envisaged by the judgment of the said Court. It is argued that the Appellate Court and the learned High Court have rightly come to the conclusion that (relevant portion quoted from the judgment of the High Court) "there is no doubt that suit property is situated in the urban area and has been sold by means of sale deed referred above. However, it is also fact that no such objection was raised by the defendant/appellant at the time of filing written statement.
The silence on the part of defendant/appellant regarding existence of any custom of pre-emption at the relevant time clearly shows that either custom did not exist or if it existed it was abandoned by the defendant/appellant. This being the factual position, no such plea can be raised at this stage as question of fact neither agitated before the trial Court nor before the first appellate Court cannot be allowed to be raised in a regular second appeal. Thus, this contention of the learned counsel for the defendant/ appellant has no merits. In support of his contention and also to justify the view set out by the first appellate Court and High Court, the learned ASC has placed reliance upon the case reported as Mst. Hayat Begum v. Faiz Ahmad and another (PLD 1966 Lahore 581).
4. Heard. In order to appreciate and resolve the proposition in hand, it seems expedient to reproduce section 7 of the Act, which reads as:-- Exists under certain conditions in urban immovable property.---Subject to the provisions of section 5, a right of preemption shall exist in respect of urban immovable, property in any town or sub-division of a town when a custom of preemption is proved to have been in existence in such town or subdivision at the time of the commencement of this Act, and not otherwise."
The expressions "right of pre-emption shall exist" ,..."when a custom of pre-emption .Is proved to have been in existence" appearing in the section in its syntax are of vital significance and the bare perusal thereof makes it abundantly clear that the "very being", "the conferment" and the "creation of the right" in this class of pre-emptory actions is rested, founded upon and imperatively dependent on the proof of the custom in the area, the proof thereof is sine qua non for that purpose. The question thus would arise, if the plaintif without first making out -a case in the plaint in terms of section ibid i,e, averring therein about the existence of the 'custom so as to enable him thereafter to prove it through evidence, can ask for the exercise of such right, enforce it under the law and if a decree for pre-emption, can be validly passed by the Court in his favour. The answer is quite simple which is provided by the settled principle of law, that the plaint has to disclose a cause of action, meaning thereby that it should contain the statement of material facts, which are necessary for the plaintiff to allege and prove in order to succeed in his cause. This also is the requirement of Order VII, Rule 1(e), C.P.C. There can be no cavil that existence of 'custom' in a suit based on section 7 ibid, is a material FACT, which the plaintiff has to specifically plead in the plaint and then to prove it through his evidence, subject of course to a situation where a specific assertion of the fact about the existence of custom when made in the plaint, but has not been denied specifically by the defendant as required by law or it has been so admitted as per the rule of 'Admission' enunciated by Article 30 of Qanun-e-Shahadat Order, 1984; and/or the provisions of Order XII, Rule 1, C.P.C., but of course with an obvious and vital rider, that the claimed/ attributed admission must be categorical, definite and unambiguous in nature. However, it is inconceivable that a mere non-denial of a fact in written statement by the defendant, which fact is not specifically pleaded in the plaint, by stretch of any legal principle can be construed to be an "Admission" in terms of law, on account of which the defendant must be punished for not denying a fact, which the plaintiff of the case was bound to allege/plead in order to constitute a cause of action and then to prove it for a decree in his favour. Therefore, we are of the candid view that the existence of the custom must be specifically pleaded in the plaint which could only then be proved through evidence. The above view is quite in consonance with the judgments supra cited by the counsel for the appellants; while the judgment reported as Mst. Hayat Begum supra, does not enunciate good law. Besides, it may be expedient to mention here that in this pronouncement at the most it has been held that if the right of preemption is generally asserted in the plaint, without specifically pleading the existence of custom in particular, this shall be sufficient compliance of the rule of pleading, but it is nowhere held that the pre-emptor shall be absolved of his duty to prove the custom as per section 7 ibid. The evidence of the respondent in the context of the above has been examined and we do not find an iota or a jot thereof, which can be said to have proved the custom in the area. We are also not convinced as has been argued by the learned counsel for the respondents that because it is mentioned in the written statement that the respondents before the sale were asked to purchase the suit properties and on their refusal the appellants purchased the same, thus a presumption must be drawn that they had admitted the fact of the custom in the area.
5. Despite the afore going, we have examined the written statement of the appellants and find that in paragraph No,4 (WS), they in clear terms have stated that the plaintiffs have no right of pre- emption. This is a reply to paragraph No,4 of the plaint in which without pleading any custom, it is stated by the plaintiffs that the house in question is on the western side of his property and, therefore, the plaintiff has a superior right of pre-emption, as the appellants-defendants are strangers. Therefore, it is a sufficient denial of the respondents-plaintiffs' right of pre-emption inclusive of the denial of custom and it shall be inapt to hold otherwise.
6. As far as the submission of the learned counsel for the respondents that an admission about custom was recorded by the trial Court in its judgment, suffice it to say that there was no occasion for the counsel to make such an admission. Be that as it may, it was a vital aspect of the case there fore, the trial Court should have recorded the 'Admission' in writing so as to be binding the appellants. In any case, on the first available opportunity i,e, the filing of appeal by the appellants, this alleged admission by the counsel was controverted by them and no affidavit/material seems to have been placed on the record on behalf of the respondents to establish that it was so made; we are unable to agree with the learned counsel for the respondents that the presumption of correctness, to a fact recorded in a judgment be drawn in this case, because such a presumption if at all legally drawable is rebuttal and the appellants rebutted it on the first chance they got, and repeated it throughout without there being any contradiction by the respondents to that effect. For the last submission of the respondents' side, about the non-framing of the issue about the custom, suffice it to say as the respondents did not plead the custom in the plaint, there was no occasion for the appellants to refute it in their written statement, which could culminate into a specific. Issue.
If anyone is to be blamed in this behalf, it is the plaintiff and none else. Even otherwise examining this plea in the light of the judgment of the Lahore High Court supra, on which much reliance has been placed by the learned ASC for the respondents, the issue qua right of pre-emption can be said to be comprehensive enough so as to cover the controversy of custom, but still the proof in this respect on behalf of the respondents is lacking.
7. For what has been stated above, these appeals are allowed, the judgments and decrees impugned herein are set aside and the suit for preemption filed by the respondents is dismissed.