' This second appeal by the vendee-defendant Umar Din, arises out of a decree for possession through pre-emption of a residential house situated in Mohallah Ahiranwala, Khushab Town, passed on 19-4-1962 by the learned District Judge, Sargodha, upon accepting the pre-emptor- respondent Muhammad Hussain's appeal against the trial Court's decree dated 13-4-1961 of dismissal of his suit which had been contested in the trial Court on a number of pleas, including the denial of custom of pre-emption in the locality wherein the house is situated.
2. After considering the evidence led by the parties, trial Court held that the plaintiff has a superior right of pre-emption but dismissed his suit on 13-4-1961 with the finding that, "it is not established that the custom of pre-emption prevailed in the locality or Mohallah Ahiranwala where the property in dispute is situated." This finding was reversed in the appeal below on 19-4-1962, as mentioned already. This appeal was admitted to hearing on 22-6-1962, to examine the question whether custom of pre-emption exists in Mohallah Ahiranwala, where the disputed house is situated. Another two pleas relating to limitation for the suit and its transfer by the District Judge, which were sought to be raised in support of this appeal were, however, disallowed as they had not been agitated during the trial of the suit.
3. During the trial, by their statements recorded by the learned Civil Judge on 6-12-1960, parties agreed that the suit house is situated in Mohallah Ahiranwala. In the course of evidence, apart from the parties themselves entering the witness-box to give evidence in support of their respective pleas, pre-emptor produced three witnesses to prove his claim and even the existence of custom for pre-emption. He also produced as many as 28 documents which include copies of 22 judgments as Exhs. P.2 to P.24, which relate to the period from 1895 to 1926; one of them (Exh.P.7) relates to the year 1957 and another one (Exh.P.20) is of the year 1958, the appellate judgment whereabout is Exh.P.21, passed on 3-6-1959. All these copies, excepting Exhs. P.8 and P.23, relate to pre-emption cases of urban property but Exh.P.8 does not relate to a claim for pre-emption and Exh.P.23 is a copy of Wajib-ul-Arz of Khushab for the year 1865. In opposition of the suit, the vendee- defendant appeared as the solitary witness and apart from admitting that the plaintiff is a co- sharer in the house which is contiguous to the house-in-suit, he stated also that his own house does not adjoin it. While denying that there may be custom of pre-emption in Mohallah Ahiranwala he explained that Khushab is an old town, founded by the Ruler Sher Shah Suri and is divided in the middle by a road and a bazar, the southern part whereof is called 'Lama Sira' and the northern one is named as Bhinwal'. He went on to state also that Mohallah Ahiranwala is also an old Abadi which, like Mohallah Sinochranwala, falls in the division known as 'Lama Sira'. In negation of the claim regarding existence of custom for pre-emption, he produced copies of eleven judgments rendered in the years 1951 to 1959, whereof Exh.D.10 is a duplicate of Exh.P.8 and does not relate to a claim for pre-emption.
4. The two Courts below have been at pains to examine the judicial precedents relied upon by the parties which relate to different Mohallas of Khushab and some of them are with regard to the Town itself. On account of judgment of variance recorded by the learned District Judge in the appeal below, I have myself minutely examined the entire evidence and have heard the learned counsel for the parties at length and more than once due to lack of proper assistance on both sides. In the meanwhile, I continue to be on nomination to the Bahawalpur Bench of this Court.
5. There is no positive evidence led with regard to the town of Khushab having been divided into distinct sub-divisions within the contemplation of section 7 of the Punjab Pre-emption Act, which reads as under:- "7. 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."
' The only material available on the point is the above-referred statement of the defendant and hence not merely the judgment relating to the Abadis of Lama Sira, Sanochranwala and Ahiranwala itself but also those relating to the town of Khushab, whether or not particular Mohallah is mentioned therein, have to form the basis of decision.
6. In the plaintiff's documents, there are two judgments of compromise (Exhs. P.3 and P.5) relating to Mohallah Ahiranwala passed respectively on 26-4-1918 and 3-11-1926 and Exh.P.2 dated 23-4- 1918 is another consent case relating to the sub-division 'Lama Sira'. In addition thereto, there is the judgment (Exh.P.7) passed after contest on 4-12-1957 wherein custom of pre-emption was held to be proved to have so been in existence in Mohallah Ahiranwala and in Exh.P.12 dated 14-10-1895 custom of pre-emption was found to be existing in the entire town of Khushab and so is also held in the defendant's reliance Exh.D.7 dated 4-12-1957 (which has also come from the plaintiff's side as Exh.P.7). Even Exh.P.24, a contested case decided on 11-8-1916, has also held so. Apart therefrom, there are consent cases provided by Exh. P.10 dated 3-8-1935, Exh.P.16 dated 20-3-1919 wherein such custom was found to be in existence in Mohallahs Sialanwala and Bhaglanwal and there also are the judgments of one contested case (Exh.P.24 dated 11-8-1916) and another eight consent cases (Exhs.P.6, P.9, P.11, P.14, P.15, P.17, .P.18 and P.19) decided between the years 1897-1922, wherein name of the concerned Mohallah is not mentioned.
7. Out of the judicial instances produced by the defendant, Exhs.D.2, 3 and 4 are cases decided simultaneously on 9-7-1958 on the basis of the judgment rendered in Civil Suit No.121 of 1957, a copy whereof has been produced as Exh.D.11 and Exh.D.6 is the appellate judgment thereof. Hence, for practical purposes, they form just one judgment. Similarly, Exhs. D.5 and D.8 relate to one suit, former is the judgment of the trial Court and the latter is its appellate judgment. Thus, the defendant's judgments requiring consideration are only five, i.e. Exhs. D.1, D.9, D.7, D.6 and D.B. The last mentioned two being the appellate judgments arising out respectively of Exhs. D.11 and D.S. They respectively relate to the years 1952, 1953 and 1957 and the last mentioned two appellate judgments were passed in the year 1959 in suits pertaining to the years 1957-58. Whereas Exh.D.1 was passed on account of failure of the concerned plaintiff to lead any evidence, none of his other judgments can be of any assistance in determining the question as to whether or not custom of pre-emption existed there at the time of enforcement of the Punjab Pre-emption Act in the year 1913.
' Although, by themselves, the judgments of consent constitute only weak evidence about the existence of custom for pre-emption because there may be a variety of factors resulting in a defendant not entering contest in a pre-emption suit and one such important factor can be that the custom of pre-emption may be so well established that the defendant may consider it futile to contest its existence. Hence, such judgments of compromise are not simply worthless and they are available for use as corroborative evidence of the existence of custom of pre-emption, proved independently in this case on the basis of oral evidence and a copy of the Wajibul-Arz (Exh.P.23), as also by the overwhelming evidence of judicial instances provided by the plaintiff.
8. Hence, Judgment on the point recorded by the learned District Judge is correct and does not suffer from any error falling within the scope of section 100 of the C.P.C.
9. In result, there is no case found to have been made out for interference with the decree passed in the appeal below on 19-4-1962 and the Regular Second Appeal is consequently dismissed with costs.