1. SHAFIUR RAHMAN, J.--The petitioners are the vendee defendants of a house in Shujaabad and seek leave to appeal against the judgment of the Lahore High Court, dated 3-12-1983 whereby their second appeal against the concurrent judgment and the decree of the to Courts below, was dismissed in limine.
2. The petitioners purchased the house. The plaintiffs-respondents pre-empted it successfully. The contest centered around the existence of a custom of pre-emption in the locality where the property was situate at the the of or before the enforcement of Punjab Pre-emption Act i.e. 1913. The trial Court held such a custom proved. The first appellate Court re-examined it at length and affirmed the finding. The High Court held the question to be one of fact and did not go further in it.
3. As this is the main ground taken up in the petition the other objections, which are no longer of importance, need not be mentioned.
4. The learned counsel for the petitioners submitted before us that there is an error of law in deciding the case inasmuch as that all the Courts have died on a judgment of a civil Court of 1972 for holding as proved the existence of custom in the locality in or before 1913 and secondly, according to the learned counsel the property in dispute in this suit was in a different locality than the one which was dealt with by the judgment of civil Court pronounced in 1972.
5. So far as the first ground is concerned, the learned counsel's arguments are misconceived. What was enforced by the judgment of the year 1972 was not a custom or a practice, which developed after 1913 because such a custom or practice was unenforceable in law. What was enforced was a custom, which was found to exist prior to 1913 and required enforcement on a sale made in 1968-69 pre-empting, which a suit was filed and decreed in 1972. It was a relevant piece of evidence for determining whether the Custom of pre-emption was in vogue in the area in 1913 and before and whether it had been judicially enforced.
6. As regards the second question about the location of the property we find that the first appellate Court has dealt with it elaborately and satisfactorily. The property in dispute has been found to be located at the same place as was the one, which was the subject-matter of the earlier suit. There had been change in the number of ward, which has been traced and identified by the first appellate Court. Such a finding of fact could not be assailed for there is no material which may readily establish its incorrectness. Hence it is not a fit case for leave to appeal.
7. The learned counsel for the petitioners submits that he had deposited in cash in the executing Court a sum of Rs.3,000 and that it should be refunded to him. This sum was got deposited in order to ensure the execution of the decree passed in the case and to meet any claim for means profits.
8. It will be entirely for the executing Court to determine when and what portion of it is to be returned in accordance with law and the rights and the obligations of the parties.