' SAJJAD ALI SHAH, J.---This appeal with leave of the Court arises from judgment and decree, dated 8-11-1989 of Lahore High Court Multan Bench, whereby R.SA. No,80 of 1989 filed by appellant herein is dismissed in the circumstances and for the facts as stated below.
2. Respondents through a sale-deed, dated 27-6-1966 registered on 11-7-1966 purchased two plots of land bearing Khasra Nos. 1517 and 1519 measuring 3 Kanals and 2 Marlas situate in Taraf Ismail, Multan for Rs,27,000. Appellant filed Suit No, 155/1977 in the Court of Civil Judge, First Class, Multan for possession through pre-emption claiming preferential right on two grounds namely contiguity and being owner of the estate. He disputed sale price and averred that original consideration for sale was Rs,12,000 only. Suit was contested by respondents/vendees and a large number of pleas was raised in the written statement alongwith preliminary objections. It was pleaded, inter alia, that suit property was not agricultural land but a building site and, therefore, suit was not properly valued for the purpose of court-fee and jurisdiction and further that suit property was evacuee and there existed no custom of pre-emption in Taraf Ismail and therefore property was not preemptible. Appellant participated in the bargain and was estopped to pre-empt the sale and further sale consideration of Rs,27,000 had in fact been paid. Keeping in view the pleadings of the parties, trial Court framed as many as 16 issues.
3. Issue No,10 relating to valuation of the suit for the purpose of court-fee and jurisdiction was tried as a preliminary issue. On finding that disputed property was of urban nature, appellant/plaintiff was required to pay court-fee ad valorem and accordingly he paid court-fee on sale price of Rs,27,000. Remaining issues were also tried and both parties produced evidence, oral as well as documentary, in support of their respective pleas. Issues Nos. 1, 2, 3, 6 to 8, 11 and 12 were not pressed by the learned counsel for the respondents/defendants vide statement dated 3-4-1976, which was brought on the record. Issue No,10 with regard to the valuation of suit property for the purpose of court-fee and jurisdiction was already decided on 8-6-1976 to the effect that suit land is building site and that finding was reiterated with observation that it attained finality as against it revision was filed which was dismissed by learaned Additional District Judge, Multan on 30-11-1976.
In ultimate analysis of evidence brought on the record by the parties, trial Court held that appellant/plaintiff had preferential right over respondents/vendees on the ground of contiguity.
Issue No,9 relating to the existence of custom of pre-emption in Mouza Taraf Ismail was also decided in favour of appellant/plaintiff. It was held that sale price of the suit land was Rs,27,000 and the same was to be paid to the vendees. Suit was decreed as stated above.
4. Respondents/defendants filed appeal in the High Court which was subsequently transferred to the District Judge on account of change in pecuniary jurisdiction. Learned District Judge heard the appeal which was allowed vide judgment and decree, dated 28-3-1981 by setting aside judgment and decree of the trial Court and dismissing the suit. First Appellate Court held that order of the trial Court permitting appellant/plaintiff in the suit to make up deficiency in court-fee was without jurisdiction. Custom of preemption was not proved to have existed in Taraf Ismail. Right of pre- emption on account of contiguity was available only in respect of one plot out of two plots.
Appellant/plaintiff filed Regular Second Appeal in the High Court which has been dismissed by Multan Bench vide judgment impugned in this appeal before us.
5. This Court has granted leave and relevant paragraph from the order reflecting scope is reproduced as under:--- "It is argued that in the plaint the petitioner had to give merely a statement of facts in a concise form. This requirement was amply complied with as the factum of the petitioner being a continguous owner was clearly averred in the plaint, which is an incident of custom. It has also been pointed out that the issue regarding existence of custom of pre-emption was specifically framed, on which both the parties led evidence. Even if the plaint lacked some particulars, no prejudice was caused to the respondent. On the rectitude of Miran Bukhsh v. Muhammad Akram Khan AIR 1937 Lahore 167 it is further urged that when the custom of pre-emption prevailed in a particular town it would also be enforceable in the area included within the extended boundaries thereof."
6. We have heard in sufficient detail learned counsel for both the parties. It is urged before us on behalf of the appellant/plaintiff that he cannot be non-suited simply on the ground that custom of pre-emption was not specifically pleaded in the plaint. In the same context another argument raised is that if custom prevailed in a particular town and the same town expanded, then it would.
Be deemed that custom was applicable in the extended area as well. Both the arguments with supporting ruling of the case of Miran Bukhsh, (supra) are mentioned in the leave granting order, relevant paragraph of which is reproduced above. Perusal of plaint shows that disputed land was treated as agricultural land on which Khasra numbers were mentioned and suit for the purpose of court-fee and jurisdiction was valued according to its fixed land revenue. It was pleaded that appellant was contiguous owner, hence suit was filed under section 15 of the Punjab Pre-emption Act, 1913, which contemplates filing of such suit in respect of sale of agricultural land, while section 16 thereof provides for right of pre-emption in respect of urban immovable property. When objection was taken in the written statement that disputed land was not agricultural land but was urban land, even then appellant insisted that he was right in his assertion and claim, hence preliminary issue was framed. In the written statement, pleas were taken to the effect that suit property was not agricultural land but a building site and further suit property was evacuee and there existed no custom of pre-emption in Taraf Ismail, hence property was not pre-emptible.
Keeping in view the pleadings of the parties, trial Court framed the following issues:---
(1) Whether the suit land is not pre-emptible?
(2) Whether this Court has not the jurisdiction to entertain the present suit?
(3) Whether the plaintiff has waived his right of pre-emption?
(4) Whether the defendants/vendees have effected improvements on the suit land? If so, at what expense?
(5) If issue No,4 is found in the affirmative, whether the defendantsvendees are disentitled to receive the compensation thereof?
(6) Whether the description of the suit land is correct?
(7) Whether the suit is for partial pre-emption?
(8) Whether the suit is unmaintainable (based on preliminary objection No,7)?
(9) Whether there exists custom of pre-emption in Mouza Taraf Ismail?
(10) Whether the value of the suit for the purposes of court-fee and jurisdiction is correct?
(11) Whether 1/5th of the pre-emption money has been deposited within time?
(12) Whether the addresses of the defendants are incorrect?
(13) Whether the sale price of the suit land i.e, Rs,27,000 was fixed in good faith or paid?
(14) If issue No,13 is found in the negative, what was the market value of the suit land at the time of the sale?
(15) Whether the plaintiff has a preferential right?
(16) Relief."
7. In the trial Court Issues Nos. 1, 2, 3, 6 to 8, 11 and 12 were not pressed by the learned counsel for the respondents/defendants while Issue No,10 with regard to the value of the suit for the purpose of court-fee and jurisdiction was already decided by the trial Court on 8-6-1976 with finding that suit land was a building site against which revision was filed which was dismissed. Trial Court found issue No,9 with regard to existence of custom of pre-emption in favour of plaintiff and held that plaintiff had preferential right on the ground of contiguity. First Appellate Court set aside the judgment and decree of the trial Court and allowed the appeal and in the result dismissed the suit on the ground that custom of pre-emption was not proved and right of contiguity was available in respect of one out of two plots.
8. Dr. Iqbal Ahmad Chaudhry plaintiff examined himself as P.W.5 in the trial Court and deposed that the disputed property was sold for Rs,12,000 and he purchased property continguous to the disputed property and further had no knowledge about the sale under pre-emption. He was Khewatdar in Mouza Taraf Ismail and at that time disputed property was under cultivation. Trial.
Court appointed Mr. Saleem Raza, Advocate Multan as Local Commissioner, who appeared as P.W.6 and proved his report Exh.12 and site plan Exh.13 showing disputed land as urban land with construction raised thereupon. In support of their case, defendants produced evidence. D.W.2 Syed Mehmoodul Hassan Bukhari deposed that disputed property comprised two plots and in between there was a street and he attempted to purchase the same but transaction could not be settled.
D.W.3 Abdul Aziz deposed that he was tenant of one plot and paid monthly rent of Rs,200. D.W.4 Mushtaq Ahmed stated that he raised construction on the disputed property. D.W.6 Niaz Ahmed deposed that disputed property comprising two plots was purchased for Rs,27,000 and both plots were within the limits of Municipal Committee and in the area custom of pre-emption did not exist.
He also stated that in Mouza Taraf Ismail, where disputed property was situated, plaintiff in the suit had no agricultural land. He also stated that area of Civil Lines known as "Nawan Shahar" of Mouza Taraf Ismail was built before partition and came to be known as New Abadi. He further stated that Nishtar College, Multan was at a distance of one furlong and on the other side there are District Courts at a distance of one furlong. He admitted that both plots under dispute were partitioned by a Katcha road.
9. Now correct legal requirement of section 7 of the Punjab Pre-emption Act, 1913 is that in respect of urban immovable property in any town or subdivision of town, pre-emptor has to prove existence of custom of pre-emption at the time of commencement of this Act. Review of evidence mentioned above, shows that plaintiff in the suit was unable to prove that such custom existed in the area since 1913. Plaintiff in the suit relied upon two judgments Exhs. P-19 and P-21 but they are not helpful to him for the reason that lands mentioned therein are not in the specific area in which the suit property is situate. At page 155 of the paper book is judgment, dated 20-11-1917 of Munsif Ist Class, Multan, in which house in Basti Kath Kup Taraf Ismail was sold and suit was filed claiming right of pre-emption on the ground of contiguity. At page 170 of paper book is the other judgment, dated 30-6-1959 of Senior Civil Judge, Multan in which the disputed property is Bahawalpur House situated in Multan City in respect of which right of pre-emption was claimed. In the instant case suit property admittedly is in the extended area New Abadi of Mouza Taraf Ismail and for that reason learned A.D.J. Concluded that the judgments mentioned above did not help plaintiff in the suit to establish existence of custom of pre-emption in the extended area of Mouza Taraf Ismail before the commencement of Punjab Pre-emption Act, 1913 and allowed appeal dismissing the suit decreed by the trial Court.
10. In respect of requirement of section 7 of Punjab Pre-emption Act 1913, correct legal position is enunciated in the case of Muhammad Din v. Sh. Faqir Muhammad PLD 1987 Lahore 205 in which it is held by Division Bench of the High Court and rightly so that existence of custom of preemption is to be proved by plaintiff from the year 1905 in which old Punjab Pre-emption Act was promulgated which was superseded by Punjab Preemption Act, 1913. It was further held in that judgment that custom which was not in existence during the currency of the Act of 1905 could not conceivably be held to have existed at the time of commencement of the Act of 1913. We approve the ratio decidendi of this judgment. Now we come back to the contention raised on behalf of the appellant that plaintiff in the suit should not have been non-suited on the ground that such specific plea of custom was not raised in the plaint and subsequently there was issue on the point and both parties produced evidence for and against the proposition. In the case of Lal Khan v. Ghulam Muhammad 1973 SCMR 252 pre-emptor claimed his right on the basis of being joint Khatedar but subsequently without seeking amendment of plaint, he claimed right on the ground of being Pattidar. It was held that preemption is a predatory right and it is open to the Court to insist on strict compliance of law applicable to pre-emption and consequently action of the High Court in disallowing change of plea was upheld by this Court. Apart from that, even otherwise without going into the technicality of the plea, it appears that both parties have produced evidence in this case as mentioned above and appellant/plaintiff has failed to prove that custom existed from before 1913 pertaining to the suit land in this case which admittedly is in the extended area of Taraf Ismail and not in its original area.
11. It appears from the pleading of the parties and evidence produced by them in the trial Court that right from the beginning case of the appellant/plaintiff was that suit property was agricultural land in respect of which custom of pre-emption existed and not a single witness of plaintiff mentioned urban character of the suit land or in support of custom. Section 3 of Punjab Pre- emption Act, 1913 defines "agricultural land" and "urban immovable property". Exhs. P3, P4, P8, P10, P15, P16, P17, P18 and P20 produced by the plaintiff show that suit land was agricultural and was under cultivation and was subject to land revenue. This plea that the land is agricultural land is disbelieved by the Court. It is held in the case of Hafiz Hasan Muhammad and others v. Abdul.
Hameed and others PLD 1982 Supreme Court 159 that "immovable property" either village or urban, D does not include agricultural land. Urban immovable property does not cover agricultural land merely on account of its being located in urban area.
12. It appears from the evidence produced that appellant/plaintiff failed in discharge of his onus to satisfy the Court by producing positive evidence in support of his plea. In the case of Mehr Din v. Dr. Bashir Ahmad Khan and others 1985 SCMR 1 trial Court dismissed suit for pre-emption in 1966 holding that from Jamabandi relied by the plaintiff, at the most land in dispute could be considered as agricultural land till 1956 and not beyond that and no proof was produced in support of assertion that suit land in that case had continued E to retain its character as agricultural land after 1956. In the circumstances it was held by this Court that suit was rightly dismissed for the reason that on the date of sale it was not proved that suit land was agricultural land. In support of the proposition reference can be made to the case of Elahi Bakhsh and others v. Allah Bakhsh and others 1981 SCMR 723.
13. As contemplated under section 7 of the Punjab Pre-emption Act, 1913 in respect of urban immovable property in order to claim right of pre-emption existence of custom is to be proved to be prevalent from before 1913 and in the instant case the suit land is situated in the area which has come into existence subsequently as extension or outgrowth, hence the question arises whether such extensions are included or excluded from application of custom. Trend of case-law is in favour of proposition that extensions are excluded from application of custom for the reason that such areas came into existence subsequently and application of custom could not be thrust upon the people settling down in such extensions without knowledge of custom with which they had no concern whatsoever. In the case of Ehsan Ellahi v. Akhtar Ali and others 1987 SCMR 692(2) superior right of pre-emption was rejected on the ground that there was no evidence produced to indicate that right of preemption existed in that part of the town where suit property was located when Pre- emption Act, 1913 came into force. In support reference can be made to the cases of Kishan Chand v. Nanda Mal and another AIR 1938 Lahore 64, Mst. Maqsooda Begum v. Maulvi Abdul Haq and others PLD 1968 Lahore 897, Hakim Muhammad Ashraf and others v. Haji Ahmad Bakhsh 1987 CLC 2156, Bin Yameen v. Wali Muhammad 1989 ALD 179(1) and Manzoor Hussain v. Allah Ditta 1990 MLD 743.
14. Learned counsel for the appellant has drawn our attention to the latest judgment of this Court in the case of Nizam-ud-Din v. Ghulam Muhammad 1992 SCMR 404 but even this judgment does not advance the case of the appellant as it is distinguishable and supports the opposite view. It is held in this case that any area added to the town by notification at a subsequent date adding to the boundaries of the town would certainly be a sub-division but there will be no presumption of extension of the pre-emption law to such added area unless so positively proved.
15. Existence of custom in respect of right of pre-emption is a question of fact and in this case First Appellate Court has very properly and appropriately evaluated the evidence produced by the parties and has come to the conclusion that plaintiff in the suit has failed to prove the custom and High Court has argreed with such finding for very valid and convincing reasons, hence interference by this Court is not called for. In this context reference can be made to the cases of Muhammad Hanif and another v. Abdul Aziz 1991 SCMR 1903 and Altaf Hussain v. Abdul Majeed 1991 SCMR 2523.
16. In the result for the facts and reasons stated above, we are unable to find any flaw or legal infirmity in the impugned judgment, which is hereby upheld and the appeal is dismissed as it is devoid of merits. However, there will be 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.