' This revision petition arises out of the judgment dated 24-10-1982 of the learned Additional District Judge, Jhang, whereby the appeal of the petitioner against the judgment and decree dated 1-4- 1982, passed by learned Civil Judge, Jhang, was dismissed in a suit for pre-emption.
2. The facts relevant for the disposal of this revision petition are that the respondent-plaintiffs filed a suit for possession through pre-emption in respect of House No, 786-B-VI, Mohallah Sharifan, Jhang City, on the ground of superior right on the basis of contiguity. It was alleged in the plaint that the disputed house was owned by Mst. Bibi etc. Who sold it on an ostensible price of Rs, 7.000 and fictitiously entered the sale at Rs, 9,000 in the registered sale-deed dated 23-7-1979.
3. The suit was resisted by the petitioner-defendant. In view of the pleadings of the patties, a number of issues were framed by the trial Court. The learned trial Court after appreciating the evidence on record, decreed the suit in favour of the respondent-plaintiffs for a consideration of Rs, 9,000 vide judgment dated 1-4-1982. The learned Additional District Judge, Jhang, after re- appraisal of the evidence concurred with the finding of fact recorded by trial Court and dismissed the appeal vide judgment dated 24-10-1982.
4. Learned counsel contends that there is no evidence on record to prove Issues Nos. 1 and 2 relating to superior right, on the basis of contiguity. The oral evidence produced by the plaintiffs was contradicted. They failed to produce the title deed of the house on the basis of which contiguity was claimed. The sale-deed Exh. P-2 (Annexure "F") does not show that the respondents had any property of their own. It is contended that the respondents also failed to produce the site plan from the Municipal Committee and, therefore, the trial Court committed a material irregularity in ignoring this aspect of the case. Thus visualized, the suit was not maintainable in terms of clause sixthly of section 16 of Punjab Pre-emption Act, 1913. The submission of the learned counsel is that the ownership of pre-emptor was 401 proved on record,
5. The question of believing or disbelieving the witnesses is the function of the trial Court. The alleged insufficiency of evidence is no ground for interference in revision. I have minutely gone through the documentary evidence and the oral evidence produced by the parties with the assistance of learned counsel for the petitioner and find no misreading of evidence. The question in fact relates to appreciation of evidence, which cannot be undertaken in the exercise of revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure.
6. It is next contended that there is no evidence of custom of preemption. Further, the trial Court has acted illegally in basing its decision on the report of the Local Commissioner. The contention is misconceived. The report of the Local Commissioner was examined qua the description of the house given in the plan Exh. P.
1. It was held by the trial Court against issue No, 7 that the description given in the plan was correct.
No objection could be taken to the course adopted by the trial Court. Learned counsel also objected that the trial Court acted illegally in not allowing the petitioner to produce evidence in support of the objection raised to the Local Commissioner's report. Reliance is placed on Hans Raj- Walaiti Ram v. Nathu Mal and others (1), wherein it was held that : "It is true that, as laid down by Order XXVI, rule 10(2), C. P. C., the proceedings and the report of the commissioner appointed to examine accounts are evidence in the suit ; but it is nowhere laid down, and indeed it would be obviously absurd to suggest, that a party dissatisfied with the report is precluded from adducing evidence in support of his contention. Nor is there any foundation for the view adopted by the learned District Judge that the court should accept the report of the commissioner at its face value and should refrain from adjudicating upon the objections raised by the parties. It was clearly the duty of the court to afford the plaintiffs a reasonable opportunity to produce evidence in support of their objections and then to come to an independent finding upon those objections. No such opportunity was given by the lower courts, and the learned District Judge has simply endorsed the report of the Commissioner without adjudicating upon the merits of the objections."
' I am afraid, the precedent cited above is distinguishable in that the report of the Local Commissioner was made on 28-2-1982 (Annexure "H"). The petitioner filed objections on 10-3-1982, (Annexure "J") whereupon the case was adjourned by an interim order dated 16-3-19 82, for arguments of the parties with the following remarks : {{URDU TEXT}} ' The arguments were, however, finally heard on 30-3-1982 and the judgment was eventually announced on 1-4-1982. The certified copy of the interim order has been placed on record by learned counsel for the petitioner. A perusal of the order sheet would show that at no stage the petitioner made a prayer to the learned trial Court for adducing any evidence in support o his objections. Learned counsel for the petitioner is unable to point out any B authority on the proposition that it is incumbent on the trial Court to ask the objector to produce oral evidence in support of his objections. It was the duty of the petitioner to produce evidence, if so desired, in support of his {{FOOT NOTE}}
(1) AIR 1929 Lah. 782 {{FOOT NOTE}} ' objection. The petitioner having failed to do so, no exception can be taken to the rejection of his objections against the report of the Local Commissioner, which was duly considered and rejected by the trial Court.
7. As to the documents Exh. P. 3 (judgment) and Exh. P. 4 (decree sheet) in the civil Suit No, 551 of 1981, titled "Muhammad Khan v. Muhammad Rafiq", it was held that the custom of pre-emption prevails in Mohallah Sharifan. No objection was raised in the trial Court as to the admissibility of the said documents. The petitioner also failed to adduce any documentary evidence to the contrary and, therefore, issue No, 5 was rightly decided. The contention that reliance on Exh. P. 3 and Exh. P. 4 have the effect of looking into the file of another case in the absence of the consolidation of the suit with that of Suit No, 551 of 1980 is wholly misconceived. The question the judgments as to the existence or non-existence of the custom is relevant what is the custom in a particular locality is a question of public nature and under sections 13 and 42 of the Evidence Act. A judgment by which the existence of custom or usage is recognized is admissible. Reference may be made ,;to Ram Kishore Jaiswa l v. B. Kavindra Narain (1).
8. No other point has been raised before me, in support of the revision petition. For the reasons stated above, I find no force in the petition which is dismissed in limine. {{FOOT NOTE}}
(1) AIR 1955 All. 59 {{FOOT NOTE}}