' This second appeal is by Hakeem Muhammad Ashraf, vendee-defendant in a suit for possession by pre-emption, brought by Haji Ahmad Bakhsh, plaintiff/respondent herein. The suit was dismissed by the judgment of Ch. Khalid Mahmood Cheema, Civil Judge, Jhang, dated 24-6-1982 but on appeal by Haji Ahmad Bakhsh, plaintiff, was decreed by the judgment of Ch. Abdul Hamid, Additional' District Judge, Jhang dated 5-2-1983.
' The property in dispute is comprised in Khasra Nos. 2062/1137/ 1140 and 1141 measuring 17 Marlas. It was sold by Manzoor Hussain and Muhammad Bakhsh vendors to Hakeem Muhammad Ashraf appellant by means of a deed of sale dated 22-11-1975. The case of Haji Ahmad Bakhsh plaintiff as laid in the plaint was that the property in question was situate in Mohallah Pindi, of Jhang Town, where a custom of pre-emption had been in existence and that he was a co-sharer of the property because he owned a plot and a house on the eastern side of the property in dispute. In his written statement, Hakeem Muhammad Ashraf vendee-defendant denied that the property in question was situated in Mohallah Pindi; according to him it was situated in a new Abadi. He also denied that the plaintiff's plot on the eastern side was contiguous to the property in dispute. According to him there was a street separating them.
3. On the parties' pleading, 8 issues were framed, the only issues surviving for decision on this appeal being issues Nos. 3 and 4. They are:-
(3) Whether the custom of pre-emption existed in the locality where the suit property is situated at the time of enforcement of Punjab Pre-emption Act, 1913? OPP.
(4) If the above issue is proved, whether the plaintiff has got a superior right to pre-empt the property in question? OPP.
4. At the trial, the plaintiff examined himself and tendered in evidence certain documents. On the other hand the vendee-defendant himself gave evidence and examined three witnesses namely Nazir Ahmad, Muhammad Bakhsh and Abdul Aziz. He also tendered in evidence some documents to which reference will presently be made.
5. The substance of the plaintiff's testimony was as follows. He was onwer of a house contiguous to the property in question situate in Mohallah Pindi. Mohallah Pindi was an old locality which had come into existence about 100 or 150 years ago. It was a part of Mohallah Maghiyana which is also known as Jhang Saddar. There had been a custom of pre-emption in existence in the locality. In cross-examination he admitted that his own house was purchased by him from the widow of Pir Bakhsh. Pir Bakhsh owned land at Chah Atuwali. He however denied that Abadi Chah Atuwali was a new Abadi. It was suggested to him that there was a street separating his house from the property in question; he denied the 'suggestion. In answer to another suggestion, he said that he could not say there was an Abadi known as Atuwali in Jhang Maghiyana.
6. Muhammad Ashraf defendant testifed as follows. He had purchased the property in question by means of sale-deed Ex. D/1. The property in question is situated in Abadi Chah Atuwali, which had come into existence 12 years ago, on the eastern side of Pindi Mohallah. There was a Pacca Road separating Abadi Atuwali from Mohallah Pindi. Intervening between the two localities was a graveyard. He added that there was no custom of pre-emption in the new locality. He further stated that there was a street separating the property in question from the property of the plaintiff; that street had been left by the vendor and was 10 feet wide. He denied the suggestion in cross- examination that he had left the street between the two properties to avoid pre-emption.
7. Nazir Ahmad DW.1 stated that the property in question was situate in Abadi Chah Atuwali which Abadi had come into existence 8 or 10 years ago. He himself was a resident of Mohallah Pindi.
Abadi Chah Atuwali was on the east of Pindi Mohallah, and between Pindi Mohallah and the new Abadi there was a grave yard. He also stated that there was a street 10 feet wide separating the property in dispute from the plaintiff's property. He admitted that there had existed a custom of pre-emption in Pindi Mohallah and he had himself successfully pre-empted a sale of property situate in Pindi Mohallah. The vendee-defendant's own house, he added, was 8/10 houses away from the property in question. As to the street separating the property of the plaintiff from the property in question he said that it was left by Raja Manzoor Hussain vendor.
8. Muhammad Bakhsh D.W. 2 also stated in similar terms. He said in cross-examination that between the plaintiff's property and the property in question there was a Bund Kucha, 35/40 feet long and 10 feet wide. Abdul Aziz DW.3 also stated that the property in question was situate in Abadi Chah Atuwali and that there was a street 10 feet wide between the plaintiff's property and the property in question.
9. The documentary evidence of the plaintiff consisted of copy of judgment Ex.P/1 decree sheet, Ex.P/2, a certified copy of a plan obtained from the Municipal Committee Ex.P/3 and copies of sale- deeds Ex.P/4, P/5 and P/6.
10. The vendee-defendant produced a copy of Aks Shajra Ex.D/2 copy of record of rights Ex.D/3, Khasra Girdawari Ex.D/4, copy of sale-deeds Ex.D/5, D/6, D/7, D/8, D/9, D/10 and D/11 and copies of mutations Ex. D/12 and D/14; he also produced copies of sale-deed Ex.D/16 and copies of other documents marked as Ex.D/17 and D/18.
11. The learned Civil Judge found that the custom of Pre-emption existed in Mohallah Pindi. As to the question whether the property in question was situate "in an extension or in old Abadi of Mohallah Pindi" he observed that the plaintiff had not produced any witness to depose to the fact that the property in question was situate in Mohallah Pindi and was not an extension of the old Abadi. The vendee-defendant on the other had produced three witnesses, who had stated that the property in dispute was situate in Abadi Chah Atuwali. In this connection he also referred to sale-deeds Ex. D/6.
D/7 and D/10 which in his opinion supported the vendee-defendants contention that the property in dispute was situated in Abadi Chah Atuwali. These sale-deeds related to the same Khasra number of which the property in dispute was a part. The learned Civil Judge observed that though the plaintiff denied the existence of Abadi Chah Atuwali yet he had himself "sold plots in this Abadi and also in the same khasra number". It was argued before him that these documents could not be produced in evidence "because they have not been put to the plaintiff while he appeared as P.W.1. The documents cannot be produced unless confronted to the plaintiff as a P.W.1." These documents, in the view of the learned Civil Judge, were not the statements of the plaintiff which were necessary to be put to him in his cross-examination; they were copies of sale-deeds and were admissible in evidence. The learned Civil Ju.Dge therefore concluded that the plaintiff had failed to prove that the property in question was situated in Mohallah Abadi Pindi. The only evidence on the point was his own "self-supporting statement" that the plot was situated in Mohallah Pindi. The finding was thus returned by the learned Civil Judge that the property in dispute was situate in Abadi Chah Atuwali where the custom of pre-emption did not exist.
12. As to issue No.4, the conclusion come to by learned Civil Judge was that between the property in dispute and the plaintiff's property there was a Kucha Bund; this Kucha found mention in the sale- deed in question itself and the house of the plaintiff was situate on the other side of the street.
"There is no evidence on the part of the plaintiff to rebut this evidence except his own statement which is self-supporting", therefore, the house of the plaintiff was not, so held the learned Civil Judge, contiguous to the property in question.
13. The learned Additional District Judge was however of the contrary opinion on both these points.
He referred to the sale-deed in question viz. Ex.P/4 and observed that Abadi Chah Atuwal did not find mention in the description of the property therein "while it is mentioned in the description of the surrounding area". He then referred to the plan Ex.P/3 and observed that the Abadi Chah Atuwali was not mentioned therein; and to the statement of Nazir Ahmad D.W.1 who according to him had stated that he had pre-empted a sale of a house which was situated in this area. As to Ex.D/6 and D/7, the learned Additional District Judge observed that though these documents were admissible in evidence yet "in order to take more benefit the learned counsel for the respondent was duty bound to put the original documents for confrontation at the time of cross-examination to the appellant-plaintiff". Another fact which the learned Additional District Judge noticed in this behalf was that the vendee-defendant's address in the plaint "has been given as Mohallah Pindi but no exceptions had been taken to it". The defendant's house according to D.W.1, so observed the learned Additional District Judge, was 8 or 10 houses from the property in dispute. In view of these facts, that learned Additional District Judge found that the "plot in dispute is situated in Mohallah Pindi where the custom of pre-emption exists".
14. Concerning the finding of the learned Civil Judge that there was a street separating the plaintiff's property from the property in dispute, the learned Additional District Judge observed that there was no document of the Municipal Committee showing the alleged street. "For the sake of argumets if the defendant has left some street from his private plot it will not destroy the right of the pre-emption of the appellant-plaintiff. None of the documents show this Koocha-bund except the sale-deed between Manzoor Hussain and the defendant. Certainly the appellant-plaintiff was not a party to that document". In his opinion therefore, the learned Civil Judge had wrongly held that the property of the plaintiff was not contiguous to the property in dispute.
15. Section 7 of the Punjab Pre-emption Act reads: "7. Exists under certain conditions in urban immovable property.-- Subject to the provisions of section 5, a right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town when a custom of pre-emption is proved to have been in existence in such town or sub-division at the time of the commencement of this Act, and not otherwise."
16. A bare reading of the Section makes it plain that the existence of a right of pre-emption is dependant upon the existence of a custom of pre-emption in the town or sub-division where the property is situate at the commencement of the Act; and, therefore, not only the custom but the town or sub-division where the property is situate must have been in existence at the commencement of the Act. There is, therefore, no question of the existence of a custom of pre- emption in a town or sub-division which town or sub-division was not in existence at the commencement of the Act. This was so held in Pervez Akhtar v. Muhammad Arif (PLD 1977 Lah.
394).
17. This being the plain meaning of the Section, it seems to me to follow as a natural corollary that if a custom of pre-emption is proved to exist in a town or sub-division, it will not extend to an independent locality which has grown up after the commencement of the Act, however close to the old town or sub-division that locality may be. There is a consistent current of authority in support of this view. In Gopal Singh v. Moal Raj (AIR 1924 Lah. 557), the land in dispute was situate in a business quarter of a recent growth which lay outside the town of Gujranwala. There was evidence of the existence of custom in certain parts of the old town but that was not sufficient to hold that custom existed also in that quarter. It was held that even if custom did exist generally in the old town, it could not on that account be presumed to exist in an outgrowth or extension of the town. Support for this view was derived from three cases, namely, Kishan Diyal v. Allah Bakhsh (1890) 87 PR), Umar Bakhsh v. Abdul Karim (1898) 70 P.R.) and Allah Ditta v. Muhammad Nazir (1910)
84 P.R.). In two recent cases, namely, Pervez Akhtar v. Muhammad Arif, which has already been referred to, and Maqsooda Begum v. Abdul Haq (PLD 1986 Lah. 897), also, the same view of Section 7 was taken. In Maqsooda Begum's case, custom of pr-emption existed in the town of Pakpattan but the -land in question was situate in a Mohallah known as Mohallah Bisharat which was a new extension of the town. After an extensive survey of the case-law on the subject, it was held that no custom of pre-emption could be recognized in towns which came into existence after the commencement of the Act nor could the custom of pre-emption be extended to the outgrowth or suburb of a town which came into existence after the passing of the Act, notwithstanding the fact that the custom of pre-emption was proved to exist generally in the town at the passing of the Act.
In Pervez Akhtar's case, the property in question was situate in Mohallah Masjid Malkan which was said to be a part of Pindi Gheb town where the custom of pre-emption existed. There was no evidence that Mohallah Masjid Malkan existed at the commencement of the Pre-emption Act but as that Mohallah existed in the centre of the town, the Court was asked to infer that it had existed at the time of the commencement of the Act. The learned Additional District Judge had held that since custom of pre-emption prevailed generally in the town of Pindi Gheb, therefore, the same also prevailed in Mohallah Masjid Malkan, being part of the town. It was, however, held that if the said Mohallah was not in existence at the commencement of the Act, then the question of the existence of custom of pre-emption in that Mohallah could not arise.
18. It should be mentioned here that Maqsooda Begum's case was a case in which the property in question was situate in the suburb of a town in which the custom of pre-emption existed; the rule, in my view, equally applies to the suburb of a sub-division, for, on principle, there is no distinction between the suburb of a town and the suburb of a sub-division.
19. A contrary view had been expressed in Miran Bakhsh v. Muhammad Akram (AIR 1937 Lah. 167) but this view was expressly dissented from in Ram Lal v. Municipal Committee (AIR 1947 Lah. 386) and also in Maqsooda Begum's case.
20. Learned counsel for the respondent relied upon Karim Dad v. Rehmat Elahi (A.I.R. 1946 Lah. 436).
That case was considered both in Maqsooda Begum's case and Parvez Akhtar's case. That was a case in which the property in suit was situate in Bazar Matia Mahal within the old city of Delhi where. The custom of pre-emption generally prevailed. It was held that when the custom is found to prevail throughout the town, the question of sub-division of a town losses all importance. The test of a place being a sub-division, it was held, is that there should be something in its structure, situation and character which makes it a recognized unit for Pre-emption Law. There, as in Bhagwanti v. Sohan Lal (1908) 116 P.R. 528, the defendant wanted the locality in which the property sold was situate, though that locality was within the old city of Delhi, to be treated as a sub-division for the purposes of the Pre-emption Law and then to require the plaintiff to prove the existence of custom in that sub-division.
21. The question here is not whether the Abadi Chah Atuwali is a sub-division for the purposes of Section 7; it is an altogether a different question, namely, whether Abadi Chah Atuwali is a part of the sub-division known as Pindi Mohallah. We are, therefore, saved the difficult task of determining what is a sub-division for the purposes of Section 7 and whether Abadi Chah Atuwali qualifies as a sub-division on the test laid down in Karim Dad's case.
22. The position that emerges from the parties evidence appears to be that the property in question is part of Khasra Nos. 2062/1137/ 1140 and 1141; in this connection reference may be made to the register of rights for the year 1970-71 (Ex.D-3) relating to the revenue estate known as Maghiana Chak Abadi. It is common ground between the parties and there is ample evidence on the record that the khasra number had been sold from time to time in small plots by different persons for purposes of construction. The parties are also agree that Pindi Mohallah is for the purposes of section 7 of the Punjab Pre-emption Act a sub-division of the Jhang town and that a custom of pre-emption had been in existence in it. As has been seen above, the plaintiff had examined himself as his own witness and there was on this question of fact what the learned Civil Judge described only his own "self-supporting" evidence. To the suggestion that Abadi Chah Attowali is an independent Abadi, he gave an evasive answer namely that he did not know that such an Abadi existed. The defendant and his witnesses swore to the fact that Abadi Chah Attuwali was a distinct and separate Abadi and had come into existence recently. That Abadi Chah Attowali was an independent Abadi was in my view supported also by the documentary evidence on the record. In the sale-deed in question (P-4) as also in the sale-deeds Ex. D-6, D-7 and D-10 this Abadi is described as tin independent Abadi. As regards P.4 the learned Addl. District Judge observed that "except where the surroundings of the plot has been given Chah Attuwali has not been mentioned any where". This observation it seems to me was a misreading of the document Ex.P-4.
It appears that the property was twice described in Ex.P.4, first with reference to its Khasra number according to Jamabandi for the year 1970-71 and then with reference to its boundaries. Its boundaries were: North pacca road 10 feet wide; South, land of the vendors, East, bund koocha 10 feet wide, and West, house of Gul Muhammad son of Mian Lal and at the end occurred the descripion: situated in Mohallah Abadi Chah Attuwali Jhang Saddar. Similarly in Ex.D-6 which was a sale-deed of a part of the khasra number in dispute made by Ahmad Bakhsh, plaintiff himself in favour of one Bashir Ahmad, the land was described as follows: North, land belonging to the vendor; South, land belonging to Sh. Muhammad Latif; East, the house of Sh. Ghulam Muhammad and West, a thoroughfare situate in Abadi Chah Attuwali. In Ex. D-7, also Ahmad Bakhsh, plaintiff had sold a part of the khasra number to one Ghulam Rasool. There also property was similarly described. By Ex.D-10 again the plaintiff sold a part of this khasra number; and there the property sold was described as follows: North, land belonging Muhammad Latif; South, the house of Khan Waryam Khan; East, the house of Syed Gul Muhammad Shah and West, land belonging to Haji Allah Bakhsh situate in Abadi Chah Attuwali. The learned Additional District Judge thought and the same contention was advanced before me that the words "Chah Attuwali" at the end of this description qualified only the property immediately preceding namely, the house of Gul Muhammad in Ex. P-4, thoroughfare in Ex.D-7, and the land of Haji Allah Bakhsh in Ex. D-10. The contention is on the face of it untenable for plainly enough it was referable to the property sold and not to the property surrounding it. In any case that Abadi Chah Attuwali exists independently is clear from the fact that at least one of the properties in these deed was described as situate in that Abadi. As has been seen above Ahmad Bakhsh, plaintiff was himself vendor in the sale-deeds, Exs.D-6, D-7 and D-10 and it did not, therefore, lie in his mouth to deny the existence of Abadi Chah Attuwali as an independent Abadi. The learned Additional District Judge was right when he said that these sale- deeds were per se admissible in evidence; this view was not disputed before me. Yet he thought that "in order to take more benefit the leaned counsel for the respondent was duty bound to put the original documents for confronting at the time of cross-examination to the appellant-plaintiff'.
This observation appears to be insupportable in law so much so that the learned respondent's counsel did not even attempt to support it before me. As regards the learned Additional District Judge's observation that the appellant had been shown in the plaint to be the resident of Mohallah Pindi but had taken no exception to it, I do not think thatit should have weighed so heavily against the appellant. Regarding the fact the residential house of the appellant was 8/10 houses away from the property in dispute, it too was of no significance for not infrequently it happens that in Towns, one Abadi begins immediately where the other ends. That Abadi Chah Attuwali did not find mention in the plan Ex.P-3 rather went to support the fact that Abadi Chah Attuwali was a new locality.
23. That brings us to the question whethere the plaintiff's property was contiguous to the property in dispute. Reference has already been made to the sale-deed in question; in it on the East of the property in dispute is shown a Koocha Bund 10 feet wide. The plaintiff was alive to the fact that if there was a Koocha Bund between his property and the property in dispute then he could not succeed on the ground of contiguity. That was the reason that he thought it necessary to say in pars 5 of the plaint that in fact no Koocha Bund existed on the East of the property in dispute. It was, therefore, for him to show that no such Koocha Bund existed. He led no evidence on the point except his own "self-supporting" statement. The defendant and his witnesses on the other hand consistently stated that such a Koocha Bund separating the two properties existed. The case tried to be made was that the Koocha Bund was part of the property in dispute and it was left by the appellant himself to defeat the plaintiff's pre-emptive right. If that was so some evidence to prove it as a fact should have been produced and the best way to be so was to have measurements taken at the spot. That there was no street in the Municipal Committee's record was also of little consequence, for it was no body's case that Abadi Chah Attuwali had developed under a sanctioned scheme. It was said that the Koocha Bund did not find mention in any document except the sale-deed in question and the plaintiff being not a party to that document it was not binding upon him. Suffice it to say that in order to succeed it was the plaintiff who had to prove that the D property in dispute was contiguous to his property, and, therefore, it lay upon him to show that the Koocha Bund had been wrongly shown to exist on the East of the property in dispute. He failed to do so; on the other and, the defendant's evidence was consistent that there was a Kucha Bund separating the two properties.
24. For the foregoing reasons I would accept the appeal, set aside E the judgment and decree of the learned Additional District Judge and dismiss the suit. Parties are left to bear their own costs.