' The premises in dispute in this regular second appeal is one-half of the share of a house bearing No,T/331 in Mohallah Shah Chan Chiragh of Rawalpindi City in pre-emption claim by Abdul Aziz (hereinafter respondent) while Muhammad Hanif is vendee (hereinafter appellant).
2. The pre-empted house was sold by brother of Abdul Aziz in favour of Muhammad Hanif vendee through registered sale-deed dated 6-11-1972. The suit was decreed by the learned first Court on 17-5-1978 holding that the pre-empted house was situated in Mohallah Shah Chan Chiragh, which was a recognized subdivision for the purpose of pre-emption and that the custom of pre-emption existed in the said Mohallah. The learned District Judge, by judgment and decree dated 12-2-1985 upheld the decision of the learned trial Court. Hence this regular second appeal.
3. It is unnecessary to give the facts of the case as both the learned counsel have not disputed them. It is not in dispute between the parties that the preempted property is situated in Mohallah Shah Chan Chiragh and that the house of Abdul Aziz is contiguous to the said house meaning thereby that there is no contest as far as superior right of pre-emption is concerned. The only controversy between the parties is whether Mohallah Shah Chan Chiragh is a recognized subdivision and whether the custom of pre-emption existed in the sub-division at the commencement of the Punjab Pre-emption Act (Act No,I of 1913).
4. Learned counsel for the appellant/vendee in support of appeal contended that the learned District Judge, erred in law by decreeing the suit on the basis of the judgment of Divisional Judge, Rawalpindi dated 2-8-1907. It was contended that the evidence in support of existence of pre- emption furnished by the pre-emptor comprised of 6 instances in form of the judgments of the first Courts in Rawalpindi. It was contended that the judgment of the Sub-Judge, Rawalpindi dated 26- 10-1940 (Exh. P-1), the judgment of Sub-Judge, 4th Class, Rawalpindi dated 2-2-1933 (Exh. P-3), the judgment of Junior Sub-Judge, Rawalpindi dated 6-5-1922 (Exh. P-5), the judgment of Sub-Judge, 2nd Class, Rawalpindi dated 8-8-1927 (Exh., P-14) related to different Mohallas while the only judgment related to Mohallah Shah Chan Chiragh was the judgment of Additional Munsif 2nd Class, Rawalpindi dated 21-8-1920 (Exh. P-16) and the judgment of the Divisional Judge, Rawalpindi dated 2-8-1907 (Exh. P-17).
5. According to him the impugned decision was based upon solitary instance; it was urged that this solitary instance was not sufficient in quality and quantity to establish the proof of custom and relieve the plaintiff from the burden of proving the custom in Mohallah Shah Chan Chiragh in the year 1913. It was contended that the decision of the learned first Court of appeal was in violation of the section 7 of the Punjab Pre-emption Act.
6. It was next contended that the instances Exhs. P-1, P-3, P-5, P-14, P-15 and P-16 related to different Mohallas, therefore, were valueless in the point of proof of existence of custom. Reliance was placed upon Punjab Records 55 of 1880, P.R.33 of 1885, P.R. 64 of 1887, P.R.13 of 1888, P.R.165 of 1888, P.R.170 of 1889, P.R.68 of 1890 and P.R.78 of 1911. X All 585 and XXXV All 385.
7. Learned counsel for the appellant then brought to my notice the evidence of the vendee. It was suggested that the judgment of Divisional Judge, Rawalpindi dated 12-11-1902 related to Mohallah Shah Chan Chiragh. In this case the Court came to the conclusion that there was no custom in Mohallah Shah Chan Chiragh. Similarly in the judgment of Civil Judge, 3rd Class, Rawalpindi dated 4-9-1976, it was held that the custom was not proved in Mohallah Shah Chan Chiragh. It was contended that after the examination of evidence it was crystal clear that the plaintiff failed to discharge his onus of proof from the evidence of defendant. It was established by the vendee/defendant that the custom of pre-emption did not exist in Mohallah Shah Chan Chiragh.
8. On the other hand, the learned counsel for the respondent supported the impugned decision. He took two preliminary legal points. It was urged by him that the concurrent conclusions of first Court of appeal and the first Court that Mohallah Shah Chan Chiragh was a sub-division for the purpose of pre-emption and that the custom of pre-emption prevailed in the said sub-division from the commencement of the Punjab Pre-emption Act was a finding of fact and was not open to interference under section 100 of the Code of Civil Procedure. Reliance was placed on Muhammad Yasin and another v. Muhammad Ismail 1983 SCMR 886; Mst. Sarwar Begum and another v. Khalida Kishwar and others. 1985 SCMR 681; Mumtaz and 3 others v. Mian Khan PLD 1973 Lah. 47 and Abdul Majid and others v. Khalil Ahmad PLD 1955 Federal Court 38.
9. On merits it was argued that P.W.1 and D.W.1 admitted that Mohallah Shah Chan Chiragh was one of the oldest Mohallas of the Rawalpindi City and that Rawalpindi City was founded by Muslims and therefore, had the effect of following the rules of Muslims in regard of pre-emption. Learned counsel placed reliance upon Karim Ahmad v. Rehmat Elahi and others AIR 1946 Lah.
432.
10. I have heard the arguments of the learned counsel at length and perused the record. I shall herein proceed to determine the contentions of the parties one by one.
11. Before I determine the respective contentions it appears appropriate at this stage to note evidence furnished by the plaintiff. It comprises of 6 instances and the testimony of Manzoor Ahmad Patwari, P.W.1 and Abdul Aziz plaintiff P.W.2. The instances, Exhs. P-3 and P-14 are the judgments of Sub-Judge, Rawalpindi relating to Mohallah Tala Pukhta in Rawalpindi, while the Exhs.
P-5 and P-15 are the judgments of Sub-Judge, Rawalpindi, relating to the Mohallah Maivero Tank, Rawalpindi. Exhs. P-6 and P-17 are the judgments which are in respect of Mohallah Shah Chan Chiragh.
12. It is also worth notice that P.W.1 stated that Mohallah Shah Chan Chiragh was an old Abadi and house might have been constructed in 1900. Abdul Aziz plaintiff stated that custom of pre-emption had been prevalent since times immemorial in the said Mohallah. It is interesting to notice that assertion of Abdul Aziz in his examination-in-chief in respect of existence of custom of preemption in Mohallah Shah Chan Chiragh was not questioned in cross-examination. It is a well-settled principle that assertion made in examination-in chief if it is not impeached in cross-examination, is deemed to be admitted. I entertain no doubt that even on this aspect the vendee Muhammad Hanif did not seriously question the existence of custom of pre-emption.
13. The custom is used in a sense of rule which through long usage obtains the force of law. Custom must be ancient, continuing, unaltered, uninterrupted and constant. Right of pre-emption in regard to rural property and agricultural property, is based upon different foundations. The right of pre- emption as regards the urban immovable property is founded upon custom which is given statutory recognition under section 7 of the Punjab Pre-emption Act. Section 7 of the Punjab Pre- emption Act is as follows:- "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."
Bare reading of Section 7 ibid makes it clear that right of pre-emption is based upon custom which must be in existence at the commencement of the Punjab Pre-emption Act and that the custom can be proved by the evidence of those persons who had a knowledge of such customs or by any transaction by which the right or custom in question was claimed, modified, recognized, asserted or denied or by the particular instances in which the right of custom was claimed, recognized or exercised, in which this exercise was disputed or departed from. Article 26 of the Qanun-e- Shahadat reads as follows:- "Where the question is as to the existence of any right or custom, the following facts are relevant:--
(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from". bare reading of Article 26 of the Qanun-e-Shahadat indicates the types of proof I D which can be adduced in support of a custom.
14. Learned counsel for the appellant placed reliance upon Punjab Record 55 of 1880, P.R. 33 of 1885, P.R. 64 of 1887, P.R. 13 of 1888, P.R. 165 of 1888, P.R. 170 of 1889, P.R. 68 of 1890 and P.R. 78 of 1911, X All 585 and XXXV All 385.
15. The argument of the learned counsel that Exh. P-3, the judgment of Sub-Judge 4th Class, Rawalpindi, relating to Mohallah Talla Pukhta and the judgment of Sub-Judge, 2nd Class, Rawalpindi (Exh. P-14) relating to Talab Pukhta and the judgment of Sub-Judge, Rawalpindi relating to Pacca Tank (Exh.P-1), the judgment of Sub-Judge, 2nd Class, Rawalpindi (Exh.P-15) be altogether ignored on the principle that they are valueless has no force. The judgment cited by the learned counsel in support of the proposition that the existence of custom in neighbouring Mohallah or sub-division is valueless, is untenable. The authorities cited by him are on the point that the instances of neighbouring Mohallas are not conclusive yet they are relevant piece of evidence in support of question whether the custom does exist in the disputed Mohallah or not.
16. In Karim Ahmad v. Rehmat Elahi and others AIR 1946 Lah. 432, it was held that: "the existence of custom in neighbouring Mohallah or sub-division or in a town generally was found sufficient to establish the custom in the disputed Mohallah".
The examination of these cases would certainly indicate that instances of a custom in neighbouring Mohallahs or sub-division or in town generally would be a good evidence in support of the existence or non-existence of a custom in the disputed Mohallah. The authorities cited by the learned counsel are not conclusive on point that the instances of neighbouring Mohallah or sub- division are completely valueless. These authorities do proceed on distinguishable facts.
17. The upshot of above discussion is that no hard and fast rules in respect of quality and quantity of evidence can be laid down for the purpose of proof of existence of custom. The custom as already indicated above, can be proved by oral evidence, by evidence of instances of neighbouring Mohallas or neighbouring sub-divisions and also from the presumption arising from the fact that the city was founded by the Muslims.
18. Looked from another angle there is hardly any doubt in respect of proposition that the Muslims have well-developed concept of rights of preemption and on the strength of the aforesaid fact it was presumed that all the cities in the sub-continent which were found by the Muslims, there existed the custom of pre-emption in respect of urban property within those cities.
19. The presumption was followed in Punjab Records 64 of 1887, P.R. 8 of 1883. It was held in both the authorities that the city of Dehli was founded by the Muslims and, therefore, the right of pre- emption generally prevails in the city.
20. In Punjab Records 26 of 1907, it was held that Rawalpindi was a city which was founded by Muhammadans, and therefore, presumably saturated with Muhammadan ideas of pre-emption. It was, therefore, held that the custom of pre-emption did prevail in Mohalla. Tahli and generally in the whole city of Rawalpindi.
21. In Punjab Records 32 of 1909 the same principle was followed.
22. Again the same principle was reiterated in Karim Ahmad v. Rehmat whers AIR 1946 Lahore 432.
In this authority the property was situated wallah of Old Delhi known as Matia Mahal. It was found that since while where the said Mohallah was situated was founded by the Muslims well-developed laws of pre-emption, therefore, custom of pre-emption on presumed to be prevailing there. This principle was also highlighted in z Akhtar v. Muhammad Arif PLD 1977 Lahore 394.
23. The ratio emerging from these cases is that the Muslims had developed incept of right of prior purchase and that the presumption is that the old Mohallas of cities founded by the Muslims had a custom of pre-emption at the time of foundation of the city.
24. This principle has been almost followed without any dissent.
25. In Mst. Maqsooda Begum v. Maulvi Abdul Haq and others PLD 1968 Lahore 897, it was held that the right of pre-emption existed only where custom was established at the time of commencement of the Punjab Pre-emption Act, right was not extended to Town or outgrowths or suburbs of Towns coming into existence after the passing of the Act notwithstanding such existence of custom in such area. It was, therefore, held that the custom existing in Pakpattan Town was not extended to its extensions. This authority was founded on the principle that the custom of pre-emption had to exist at the time of commencement of the Punjab Pre-emption Act. The custom is outcome of ancient usages observed by the people themselves and cannot be created.
This authority is, therefore, inapplicable to the facts of this case.
26. Applying these principles to the facts of the present case it is quite clear from the record that Mohallah Shah Chan Chiragh is one of the oldest Mohallas of Rawalpindi City, that it was in existence before the commencement of the Punjab Pre-emption Act; that suit for pre-emption had been filed before 1913; that in 1907 Appellate Court decreed the pre-emption claim on the basis of the custom in Mohallah Shah Chan Chiragh; that DW.1 admitted the ancient character of the Rawalpindi city and Mohallah Shah Chan Chiragh. I have, therefore, no doubt in my mind that Mohallah Shah Chan Chiragh is the oldest Mohallas of Rawalpindi city and therefore, custom of pre-emption existed at the time of commencement of the Punjab Pre-emption Act, in this sub- division. The findings of the learned Courts below do not suffer from any error of law or the error of jurisdiction. I, therefore, find no fault with them.
27. Reverting to the preliminary objection of the learned counsel for the respondent, I am inclined to agree with him. I have also no doubt in my mind that issue relating to whether Mohallah Shah Chan Chiragh is a sub-division and whether the custom of pre-emption did exist in the said Mohallah or not is the issue of fact and this Court had no power to interfere unless and until the finding of the learned District Judge, is vitiated by misreading or non-reading of the evidence or by misapplication of the provisions of the law as laid down in Muhammad Yasin and another v.
Muhammad Ismail 1983 SCMR 886; ' Mst.Sarwar Begum and another v. Khalida Kishwar and others 1985 SCMR 681; Mumtaz and 3 others v. Mian Khan PLD 1973 Lah. 47 and Abdul Majid and others v. Khalil Ahmad PLD 1955 Federal Court 38.
28. Respectfully following the aforesaid views and after careful consideration of the finding of both the Courts as well as the evidence of both the parties I have reached the conclusion that the judgment and decree passed by the learned District Judge as well as by the learned trial Court do not suffer from any illegality warranting exercise of the power of this Court under section 100 of the Code of Civil Procedure.
29. For whatever has been stated above, the appeal fails. I accordingly hereby dismiss the appeal with costs throughout.