' This R.S.A. arises out of a decree, dated 3-2-1977 of the learned Additional District Judge, Sheikhupura, whereby the appellant's first appeal was dismissed.
2. Sale of a house situated in the urban area of Sheikhupura was sought to be pre-empted by the suit on two qualifications, namely, (i) that the appellant/pre-emptor was a collateral of the vendor and (ii) that he was a co-sharer in the house. Both the Courts below found concurrently that neither there existed any custom of pre-emption in the vicinity nor was the appellant a co-sharer in the demised house.
3. It was contended on behalf of the appellant that the question whether there existed the custom of pre-emption was of law inasmuch as the evidence on it was not properly scrutinised and the inference drawn from it was quite untenable. In regard to the other point, it was submitted by learned counsel that the agreement, dated 3-12-1960 although placed upon the file could not have been counted upon as it was not formally tendered or exhibited. Stressing the alleged co- ownership, it was maintained that since the house bore the same single number and the sale- deed itself mentioned of its having been partitioned some time ago, it retained its character of being joint property between the vendor and the appellant/pre-emptor. Still further it was added that the evidence bore out contiguity of the appellant's property with that of the disputed suit and hence it was open for him to assert better right.
4. Opposing the appeal, it was argued that all the questions involved were of fact and could not be broached in the second appeal. Reliance was placed upon Pathana v. Mst. Wasai and another PLD 1965 SC 134 in this behalf.
5. Leaving aside the Custom itself, the learned Additional District Judge rightly noted that the house having already been partitioned off had assumed the character of an independent entity at the time of sale so that the appellant/pre-emptor had nothing in it to claim to be its co-owner.
Assuming further that the agreement, dated 3-12-1960 could not have been relied upon for having not been properly tendered or exhibited, the sale deed D.1 itself clinches the matter for all purposes.
It describes unmincingly that long before the impugned sale the then joint property was partitioned and that the impugned portion had thereby become altogether an independent property. This averment of a fact was not disproved by any other evidence and since it formed an integral part of the sale sought to be pre-empted, it cannot be entirely disregarded. It recites further that the partition had taken place by virtue of the agreement, dated 3-12-1960 and, therefore, even though the later agreement was not formally exhibited, it had the effect of making the property in question a separate entity. There could be no two opinions about the conclusion drawn by the Court below on the point
6. Although there is some indication that the pre-emptor may be owning contiguous property yet this qualification had had to be put down in the plaint. The respondents-vendees could not be taken by surprise especially on a point of fact which called for a specific mention in the pleadings.
Obviously the appellant cannot be heard to urge the same.
7. 1 am afraid the prevalence of Custom is a question of fact. It could also not be heard in the second appeal. There is no misreading of evidence on the part of Courts below in relation thereto.
8. For all these reasons, the R.S.A. is dismissed leaving the parties to bear their own costs.