MUNIR A. SHEIKH, J.- This is plaintiffs appeal which has been directed against judgment dated.11.11.1971 passed by the learned District Judge through which the appeal filed by the respondents against judgment and decree dated.22.7.1970 passed by the trial Court by which suit for pre-emption was decreed in favour of the appellant has been accepted and the suit dismissed.
2. The property in dispute is admittedly situated in Depalpur which was a town. The sale in respect of the house in dispute in favour of the respondents was made on 17.3.1969 which the appellant wanted to pre-empt through the suit from which this appeal has arisen.
3. In the suit the only averment made was that the house of the appellant was contiguous to the house in dispute having wall in between, therefore, he had superior right of pre-emption. No averment even remotely was made that custom of pre-emption was prevailing in the locality since before coming into force of Punjab Pre-emption Act, 1913. The right of pre-emption of the appellant was denied in the fust written statement filed by the respondents whereas in the second written statement it was denied with additional averment that his own other house being also contiguous to the house in dispute, as such, on that score he was at par with the appellant so far as right of pre-emption was concerned.
4. The trial Court held that the appellant being owner of the house in contiguity having comment wall, therefore, had superior right of pre-emption as compared to the respondents. The suit was decreed through judgment dated.22.7.1970 which has been set aside by the lower appellate Court through judgment dated.11.11.1971.
5. The lower appellate Court has held that under Section 3-A of the Preemption Act, right of pre- emption could only be claimed and enforced if it was proved that custom of pre-emption existed in the locality as envisaged by the said Section i.e. Before coming into force of Punjab Pre-emption Act, 1913 which fact having neither been averred in the pleading nor proved, therefore, the suit could not have been decreed.
6. Learned counsel for the appellant submitted that in the second written statement the respondent took a plea that his house being also contiguous to the house in dispute, therefore, he had right of pre-emption equal to the appellant, as such, this admission was sufficient to construe that the existence of custom of pre-emption had also been admitted.
7. I am afraid the argument in my opinion is plainly unsound. If a statement is to be used as evidence in a suit as an admission by a party making the same of the case of die other party it has to be taken as a whole and the same should also be unequivocal and unqualified. There is no implied admission even in the written statement dud the existence of custom of pre-emption in the locality had been admitted. Since the appellant had damned right of pre-emption cm the ground of common wall between the two houses, it was in this context, that in order to meet this it was averred that his home was also contiguous and on that score he was at par with the appellant.
None of the parties pleaded that custom of pre-emption prevailed in the locality without the proof of which the right of preemption could not be claimed much less enforced.
8. The lower appellate Court has not committed any illegality in recording a finding that no right of pre-emption in this case existed as it was not proved that custom of pre-emption existed in the locality, therefore, the appeal has no force which is accordingly dismissed with no order as to costs.