' The relevant facts for the decision of these appeals are that Allah Wasaya s/o Habib Ullah was owner of House No,2562; Ward No,6-M, Outside Daulat Gate, Multan. He proceeded to sell the same to the petitioner in two different portions. The northern half portion was sold through sale-deed dated 20-9-1975 for a total consideration of Rs, 10,000 while the remaining southern half portion was sold vide sale-deed dated 22-9-1975 for a total consideration of Rs,12,000. The respondents filed two separate suits to preempt the sales. The superior right of pre-emption was claimed on the grounds of contiguity, common entrance and situation of the house in blind alley. The appellant to resisted the suits. The trial Court in accordance with the pleadings of parties, framed the issues, recorded their respective evidence and proceeded to decree the suits vide judgment and decree dated 16-12-1985. The appellant impugned this judgment and decree through an appeal in the Court of District Judge, Multan, who dismissed the same vide judgment and decree dated 21-9- 1988. It is needless to mention here that the judgments of both the Courts in both the matters are just copy of each other. Thereafter, the appellant filed the present appeals which were admitted to regular hearing and notices were issued to the respondents, who have entered appearance and contested the appeals.
2. Appeal No,R.SA. 149 has arisen out of the suit No,583 while R.SA. 150 has arisen from the suit No, 582 of 1985. Since the suits as well as appeals were disposed of by consolidated judgment, therefore, I have decided to take up the same together.
3. The learned counsel has impugned the findings of the Courts below on issues Nos.4 and 5 which are common in both the suits. The learned counsel while assailing the findings on issue No,5 has argued that the Courts below wrongly treated the sale as one and proceeded on the wrong pre- assumption that there is only one suit. Secondly, that the respondent failed to prove that he is the owner of the contiguous house by any evidence. Thirdly, that since the transactions were separate and suits were also independent, therefore, the same have to be decided independently of each other. The argument, in a nutshell is, that the respondent has mainly claimed the superior right on the basis of contiguity that he is the owner of adjoining house on northern side. If this is the position then his house is not contiguous to the southern portion of the house purchased by the appellant, therefore, he had not superior right and cannot pre-empt that sale. It is added that if the suit in respect of the southern portion is dismissed, then for northern portion, the rights of the parties are equal because if the respondent owned house in northern side of the portion in dispute then on the southern side the appellant had also become owner. The right being equal, therefore, his suit must fail. The learned counsel in support of the arguments has referred to the case of Genda Ram and another v. Ram Chand and another (AIR 1924 Lah. 163) and Mst. Mehr Jan v. Saidan Shah (PLD 1979 Peshawar 196).
4. Lastly, it was argued that the Courts below failed to take into consideration the effect of Sections 5, 7 and 16 of the Punjab Pre-emption Act, 1913. The argument is that in order to succeed in the suit, the respondent had to prove that the properties in dispute were situated in urban area, where custom of pre-emption was prevalent before the Act of 1913 was enacted. In this behalf the learned counsel of appellant has referred to Pcrvez Akhtar v. Muhammad Arif (PLD 1977 Lahore 394), Mst.
Maqsooda Begum v. Maulvi Abdul Haq and others (PLD 1968 Lahore 897), Muhammad Din v. Sh.
Faqir Muhammad (PLD 1987 Lahore 207) and Hakim Muhammad Ashraf and 7 others v. Haji Ahmad Bakhsh (1987 CLC 2156).
4. On the other hand learned counsel for the respondent has argued that the plaintiff had claimed superior right on account of common passage and contiguity, therefore, even if his claim on the ground of contiguity is disallowed, still he will be entitled to decree on account of common passage. He in this behalf has referred to clauses 4thly and 6thly of Section 16 of the Pre-emption Act. It is maintained that although there were two different sale-deeds but the same will be treated as one transaction. It is explained that neither there was any actual division nor any demarcation or boundaries of the properties subject-matter of two sale-deeds have been given therein.
5. On the other hand only portions of the property were referred to in the sale-deeds. The learned counsel in this behalf has referred to Labh Singh v. Taj Din and others (AIR 1931 Lahore 436). On the point of that, there existed a custom of pre-emption in the Sub-Division before enactment of Pre- emption Act, 1913, the learned counsel for the respondent has referred to preliminary objection No,4 as well as reply to para. 4 of the plaint and argued that the vendee has himself admitted that property is situated in Taraf Juma Khalsa. Learned counsel for the respondent has referred to document Ex.P.6, judgment of the civil Court dated 28-4-1971 Ex.P.12, judgment of civil Court dated 29-114980 in addition to sale-deed Ex.P.14, P.17, P.19 and P.20. It is argued that it is established by the statements of PW1 and PW2 in addition to the overwhelming documentary evidence that the property in dispute is urban immovable property and there existed custom of pre-emption in the area. It is added that custom is to be proved in the town or sub-division and it was held by this Court as back as 1906 that custom of preemption generally exists in Multan. The learned counsel in this behalf has referred to case of Muhammad Yousaf and 5 others v. Hassan Raza (1988 MLD 1771), Ghulam Murtaza v. Rupa Mal and others (100 Punjab Record 1906), Mst. Naseem Akhtar v.
Mst.Mukhtiar Bano 1986 CLC 1267.
6. The learned counsel for the respondent has also argued that oral evidence can be led to prove custom of preemption in this behalf. Reliance is placed on the case of Mst. Sarwar Begum and another v. Khalid Kishwar and others (1985 SCMR 681) and case of Umar Din v. Muhammad Hussain and another (1987 CLC 1130) to argue that even compromise decree is relevant to prove the existence of custom. The learned counsel further argued that P.W.2 was not cross-examined on the point of custom, therefore, his statement will be deemed to have been admitted as correct.
Reliance in this behalf has been made in the case of Muhammad Bakhsh v. Nisar Ahmad (1985 CLC 1974). It is concluded that if a property was agricultural at one time, there will be no presumption that the same is now a part of Satellite Town (New Abadi).
7. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record and precedent cases cited by them. Now before proceeding any further I would like to refer to section 5, section 7 and section 16 of the Punjab Pre-emption Act, 1913.
The same read as under:-
5. No right of pre-emption in respect of certain buildings.--No right of pre- emption shall exist in respect of the sale of, or the fire closure of a right to redeem--
(a) a shop, serai or katra;
(b) a dharmsala, mosque or other similar building.
7. Exists under certain conditions in urban immovable property.--Subject to the provisions of section 5, a right of pre-emption shall exist in repect 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. Person in whom right of pre-emption vests in urban immovable property.--The right of pre- emption in respect of urban immovable property shall vest,--firstly, in the co-sharers in such property, if any; secondly, where the sale is of the site of the building or other structure in the owners of such building or structure; thirdly, where the sale is of a property having a staircase common to other properties, in the owners of such properties; fourthly, where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties; fifthly, where the sale is of a servant property, in the owners of the dominant property, and vice versa; sixthly, in the persons who own immovable property contiguous to the property sold.
It is clear from the reference to the above provisions of law that in order to successfully claim a superior right of pre-emption in respect of urban immovable property, the plaintiff has to prove that property is situated in town or subdivision where custom of pre-emption was prevalent before 1913. I need not refer to all the cases relied by the learned counsel for the appellants. Suffice here is to refer to cases of Fazal Karim v. Muhammad Afzal and others (1982 SCMR 997) and Hakim Muhammad Ashraf and 7 others v. Haji Ahmad Bakhsh (1987 CLC 2156). The relevant portion of the judgment of Fazal Karim reads as under:- "From this, it follows that it was necessary for pre-emptor to prove that Custom of the pre-emption prevailed in the Sub-Division of Mohallah Churrigaran, .Before the 1st of March, 1913 when the Punjab Preemption Act (I of 1913) came into force. The pre-emptor relied upon two judgments Exh.P./3 and P.2/6, which were decided on the basis of compromise of the parties. The learned District Judge and the learned Judge in Chambers of the Lahcire High Court also relied upon the three judgments in other Sub-Divisions of City. It is argued that the evidence placed on the record by the plaintiff is not at all sufficient to prove the Custom of pre-emption in the Sub-Division in which the house is situated. Reliance is also placed on AIR 1947 Lahore.265, ILR 2 Lahore 136 and ILR 4 Lah.
176."
' While the relevant portion of the judgment in the case of Hakim Muhammad Ashraf reads as under:-- "A hare reading of the section makes it plain that the existence of a right of pre-emption is dependent upon the existence of a custom of preemption 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 subdivision 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 Lahore 394).
' 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."
8. The learned counsel for the appellant has argued that DW1 has clearly stated that the custom of pre-emption is not in vogue in this Mohallah and he was not cross-examined on this point.
9. On the other hand, the learned counsel for the respondent has referred to documents more particularly Ex.P.12 to Ex.P.18. These documents pertained to decrees passed in various suits from time to time. The same are not relevant for the simple reason that none of these documents pertained to the sub-division in question. In fact the plaintiff to claim right of pre-emption successfully had to prove existence of following conditions:- ' Firstly, that property is situated in area, which was urban before 1913; ' Secondly, that custom of pre-emption was prevalent in the locality at that time.
' But in this case the plaintiff has failed to prove that the property is situated in the Urban Area of old origin. On the other hand, his own documents P.21 to P.24, which are sale-deeds described the land as agricultural sold for residential purposes. Ex.P.8 is a judgment in a suit in respect of agricultural land. The copy of Jamabandi for the year 1960-61 which is Ex.P.27 describes the land as agricultural while in the, copy of Jamabandi for the year 1965-66, which is Ex.P.28, the property is mentioned as residential was a It is, therefore, clear that the property assumed the status of Urban property sometimes after 1960-61. Therefore, the question of existence of custom before 1913 does not arise.
10. The right of pre-emption is a weak right and has to be proved by clear, primary and direct evidence. In this case the plaintiff has failed to prove by clear evidence that it is a old locality and custom of pre-emption prevailed, therefore, the suit must fail. The learned counsel for the appellant has rightly referred to statement of PW.2, who has given the names of the "Mohallahs" as "Hafiz Jamal Colony" etc. He has pointed out that this clearly proves that this area has assumed the status of urban property in the recent years, He has also pointed out that the documents produced by the plaintiff mostly pertained to "Mohallahs", which is adjacent to Hafiz Jamal Colony. The argument is that "Mohalla Hafiz Jamal" and "Hafiz Jamal Colony" are entirely two different sub- divisions. The argument has a lot of merit.
11. Now coming to the other points that the plaintiff has failed to prove that his house was contiguous to the property subject-matter of the suit. Suffice it is to observe that it is so described in the sale-deeds in favour of the vendee himself and also mentioned as such by PW2, Mian Saeed Ahmad, who was appointed Local Commissioner. In this view of the matter, there is no merit in the plea of the learned counsel for the appellant. Moreover, the plaintiff had claimed superior right of pre-emption not only ground of contiguity but also on the ground of common entrance. The appellant has failed to rebut this by any cogent evidence, therefore, there is no merit in the plea.
12. The result is that these appeals are allowed, judgments and decrees of the Courts below are set aside and the suits of the respondents are dismissed. However, there is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.