' Evidenced through sale-deed registered on 31-5-1974 Zafar-ul-Haque respondent-defendant purchased house No,9/49 situated in Chah Phairanwala alias Luqmanwala, Taraf Ravi, Mumtaz Abad, Multan from Mst. Zakia Begum for an amount of Rs,5,000. On the ground of contiguity of his house towards the southern and eastern sides of the aforesaid house in dispute purchased by Zafarul-Haque respondent-defendant, Haji Faiz Bakhsh plaintiff-appellant (since deceased at present represented by his legal representatives) instituted his suit to pre-empt the sale. He showed his willingness to pay the sale price in the sum of Rs,5,000. He contended that the custom of pre-emption was prevalent in Muaza Taraf Ravi, Multan wherein the house in dispute was situated. The said suit was resisted by the respondent-defendant who submitted the written statement wherein he contended that the suit was not properly valued for the purposes of court- fee and jurisdiction that the suit house was not properly and correctly described in the plaint, that the pre-emptor had no pre-emptive right who even otherwise had waived the same and that the custom of pre-emption was not prevalent in the locality where the suit house was situated at the time of the coming into force of the Punjab Pre-emption Act, 1913. He averred that the had spent an amount of Rs,40,000 upon the improvements effected in the suit house.
2. According to the pleadings of the parties following issues were framed for determination:-- ' Issues:
(1) Whether the plaintiff has a superior right of pre-emption?
(2) Whether ostensible sale price was paid or fixed in good faith?
(3) What was the market value of the suit property at the time of sale?
(4) Whether the custom of pre-emption prevailed in the locality where the suit property is situate, before the enforcement of Punjab Pre-emption Act, 1913?
(5) Whether the plaintiff has not filed this suit?
(6) Whether the plaintiff is estopped to file this suit?
(7) Whether this suit is time-barred?
(8) Whether defendant has made any improvement, if so, of what value and with what effect?
(9) Relief.
3. Ashiq Muhammad, Draftsman appeared as P.W.1 and proved site-plan Exh. P.1. It occurs in his cross-examination that the suit property was situated at Chah Luqmanwala and was on the other side of the railway line. Wahid Bakhsh P.W.2 stated that the house of Faiz Bakhsh was contiguous to the disputed house. He added that the disputed house was situated in Taraf Ravi outside Pak Gate.
He stated that the custom of pre-emption was prevalent in the area wherein the disputed house was situated. He stated during the course of his cross-examination that the disputed house was at a distance of one ' furlong' from railway line Mumtaz Abad, that the disputed house was constructed 30 years before (the making of his statement on 23-2-1976) and that Chah Phairanwala alias Chah Luqmanwala was included in the territorial limits of Municipal Committee, Multan 20 years before. Faiz Bakhsh pre-emptor appeared as P.W.3 and stated the facts of his case. He stated in his cross-examination that Chah Luqmanwala was in Mauza Taraf Ravi. He produced Exh. P.2. And Exh. P.3, copies of the Jamabandis; Exh. P.4, copy of judgment dated 18-10- 1973 and Exh. P.5, copy of relevant decree-sheet. In rebuttal Abdul Qayyum Draftsman D.W.1 proved site-plans Exh. D.1 and Exh. D.2. Muhammad Younas D.W.2, Ghulam Rasool D.W.3, Muhammad Ishaque D.W.4, Aman Ullah D.W.5, Ijaz-ul-Hassan D.W.6, Ilam Din D.W.7 and Abdul Karim D.W.8 stated about the supply of material and receipt of its price which was utilized for effecting the improvements on the suit property. Zafar-ul-Haque defendant-respondent stated as D.W.9 that he purchased the suit house for an amount of Rs,5,000 from Mst. Zakia Begum on 31-5-1974 which was got repaired by him. He stated that he spent an amount of Rs,40,000. He stated that the Abadi came into existence during the year 1956-57 and that the custom of pre-emption was not existing in the area. He stated that he obtained the possession of the house six months before the registration of the sale-deed. In his cross-examination he admitted about the contiguity of the house of Haji Faiz Bakhsh pre-emptor with the disputed house. He denied the suggestion that he had made the false statement. After hearing the parties learned Trial Court decreed the suit in consideration for an amount of Rs,5,000 as sale price plus Rs,3,303 as the amount of cost of improvements i,e, total amount of Rs,8,303. The said amount is stated to have been deposited within time by the pre-emptor. Learned Trial Court held that the custom of pre-emption was prevalent in the area and in this regard reliance was placed on copy of judgment Exh. P.4 and copy of decree-sheet Exh. P.S. An appeal was preferred by Zafar-ul-Haque respondent-defendant which was accepted with the observation by the lower Appellate Court that Haji Faiz Bakhsh pre-emptor had failed to establish the existence of custom of pre-emption in the area at the relevant time of the enforcement of the Punjab Pre-emption Act, 1913. Consequently the suit was dismissed. Feeling aggrieved this regular second appeal has been filed by Haji Faiz Bakhsh pre-emptor which has been resisted by Zafar-ul-Haque respondent-vendee. It is proper to express that Haji Faiz Bakhsh appellant died during the pendency of the appeal and his legal representatives have been impleaded in the list.
4. I have heard the learned counsel for the parties and gone through the record before me. Only Issue No,4 with respect to the existence of the custom of pre-emption in the locality where the suit house is situated has been argued before me and no other issue has been touched. Thus, the findings of the lower Courts on the other issues are hereby, affirmed.
5. With respect to Issue No,4 the contention of the learned counsel for the present appellants is that the dispute has not been disposed of by the lower Appellate Court in its true perspective. He referred to copy of sale-deed forming part of the original file according to which the disputed property is situated in Taraf Ravi, Multan. He relied upon Punjab Record 42 according to which it has been held that Taraf Ravi (Multan) does form such a sub-division wherein the custom of pre- emption was prevalent. He maintained that the respondent defendant has not been able to make out that any smaller area forming the locality in which the house in question is situated can be held to be a subdivision for the purpose of the relevant section. He also referred to Exh. P.4 and Exh.
P.5 and canvassed that the Civil Court had held on 18-10-1973 that the custom of pre-emption existed in Taraf Ravi Multan. On the contrary learned counsel for the respondent-defendant argued that sufficient evidence has not been adduced by the pre-emptor during his lifetime at the trial to make out the existence of custom of pre-emption in Taraf Ravi and particularly in the area in which the suit property is situated wherein there is the recent growth of residences. He added that even according to Wahid Bakhsh P.W.2 the house was constructed 30 years before whose statement was recorded on 23-2-1976 and thus it has not been established that the custom of pre-emption existed in the sub-division. In my view the sale-deed has to play the legal role. According to sale- deed pertaining to the suit house the same is situated in Taraf Ravi. In the ruling published as Punjab Record No,42, Taraf Ravi is a sub-division of Multan City and therein the custom of pre- emption is prevalent. The said ruling has been published during the month of April, 1906 i,e, before the promulgation of the Punjab Pre-emption Act, 1913. The last but one para. Of the ruling reads as under:-- "Upon a review of the whole case we come to the conclusion that the right of pre-emption has been shown to obtain in the sub-division of Taraf Ravi. There is some oral evidence which is not by itself of great value, but we think the instances taken as a whole, from this very sub-division coupled with the fact that the custom of preemption has been held to prevail generally in the Multan City, establishes the existence of this custom as regards the property in dispute."
6. My view is that the time of construction of the house has not to be given the weight with respect to the determination of the dispute/fact in hand. The custom of pre-emption is prevalent in the area known as Taraf Ravi Multan and the disputed house is situated therein. Multan is an ancient city upon which the Muslims ruled for long. The law of pre-emption has the Islamic tinge. With the material before me and the aforesaid ruling published in April, 1906 as Punjab Record 42, I hold that during the year 1913 custom of pre-emption was in existence in Taraf Ravi, Multan which is a sub- division wherein the suit house is situated. The judgment and decree passed by the lower Appellate Court is held to be illegal and unjustified. I, therefore, decide Issue No,4 in favour of the present appellants who are the legal heirs of Haji Faiz Bakhsh pre-emptor since deceased.
7. For what has been said above, I accept this regular second appeal No,205/84, set aside the impugned judgment and decree passed by the lower Appellate Court, and restore the judgment and decree passed by the Trial Court. Consequently the decree for possession by pre-emption in favour of Haji Faiz Bakhsh pre-emptor (at present being represented by his legal heirs due to his death) passed by the Trial Court is held to be operative. There is protracted litigation between the parties and the price of the disputed house must have enhanced. Keeping in view this aspect of the matter I leave the parties to bear their own costs throughout. 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.