' Through this appeal, the appellant has challenged the judgment dated 23-6-1973 passed by Additional District Judge, Multan whereby the judgment and decree dated 28-10-1971 of the learned Civil Judge, Multan was set aside and the appellant's suit for possession through pre- emption was dismissed.
2. Brief facts giving rise to the filing of the instant appeal are that the appellant-plaintiff tiled a suit for possession by way of pre-emption qua the suit property which the defendant-vendee had purchased vides registered sale-deed dated 6-5-1969. During trial the appellant produced the following set of evidence:--
(i) Abdul Rauf Patwari (P.W.1);
(ii) Niaz Ahmad Niazi (P.W.2);
(iii) Muhammad Sagheer (P.W.3); and
(iv) Najimuddin (P. W.4) plaintiff himself.
' The plaintiff also produced Exh.P4 which is a judgment and decree of learned Civil Court dated 2- 4-1963 whereby a suit for pre-emption qua the property suit in the same locality was decreed.
' The learned trial Court framed the following issues:-- "(1) Whether the suit land has not been correctly described, if so, what is the correct description?
OPD
(2) Whether the custom of pre-emption prevails in the locality where the property in question is situate? OPP
(3) If above issue is positive, then whether the plaintiff has superior right of pre-emption qua the vendee? OPP
(4) Whether the sale price of the suit land was fixed in good faith and actually paid? OPD
(5) What is the market value of the suit land? O.P. Parties.
(6) Whether the plaintiff has waived his right of pre-emption, if any? OPD
(7) Whether the defendant has made any improvement on the suit land, if so, to what extent and with what effect? OPD
(8) Relief."
' Deciding Issue No,2 in favour of the appellant-plaintiff, the suit was also decreed and it was held that the evidence of the plaintiff shows that the custom of pre-emption existed in Mauza Sadu Hasam and that the respondent-defendant did not lead any evidence in rebuttal.
' In appeal filed by the respondent-defendant, the judgment and decree of the learned trial Court was set aside and it was held that as the suit property is not situated in the old city of Multan and near Octroi Post No,22 it could not be presumed that the custom of pre-emption which existed in the old city was also prevalent in the extended part of the old city.
3. Learned counsel for the appellant has raised following pleas in support of this appeal:---
(i) That there was evidence on record that the custom of pre-emption was prevalent in the Mauza where the suit property is situated;
(ii) That the respondent-defendant did not lead any evidence in rebuttal;
(iii) That the learned appellate Court has set aside the judgment and decree of the learned trial Court by sheer non-reading and misreading of material on record;
(iv) That the appellant--plaintiff wants to lead additional evidence and in this connection he has also filed Application bearing No, C.M. No,464-C of 1982; and
(v) Refers to a judgment of this Court passed in R.S.A. No,4 of 1982 to contend that the custom of pre-emption existed in Mauza Sadu Hasam which judgment was confirmed by the ' Hon'ble Supreme Court in 1991 SCMR 2523 (Altaf Hussain v. Abdul Majeed).
4. Learned counsel for the respondent-defendant has defended the impugned judgment and decree by submitting that in terms of section 7 of the Punjab Pre-emption Act, 1913, the appellant- plaintiff had to show that the custom of pre-emption existed at the time of the commencement of the afore-referred Act failing which the suit could not have been decreed. He relied on the following judgments of the Hon'ble Supreme Court:---
(i) 1993 SCMR 1477 (Dr, Iqbal Ahmad Chaudhry v. Muhammad Inayat through Legal Heirs and another).
(ii) 1994 SCMR 529 (Nazir Ahmad v. Fateh Muhammad).
5. I have heard learned counsel for the parties and have gone through the record and have also examined the precedent case-law referred to during the arguments.
6. The most important point for consideration is issue No,2 i,e, whether the custom of pre-emption prevails in the locality where the property in question is situated? In terms of section 7 of the Punjab Pre-emption Act, 1913, the plaintiff has to prove that the custom of pre-emption existed there before 1913 in the area where the suit land is located. To prove the question of custom, the plaintiff has produced P. W.1, Abdul Rauf Patwari who merely stated that the suit land was situated in Taraf Ismail and that the custom of pre-emption prevailed over there. Niaz Ahmed, who prepared the site plan of the suit property, appeared as P.W.2. Muhammad Sagheer appeared as P.W.3. He stated that in the area where he lives, custom of pre-emption prevails. Najeebuddin, plaintiff appeared as P.W.4. He also stated that custom of pre-emption prevails in the Illaqa where he lives and the suit property is adjacent to his house. He also produced two witnesses in rebuttal i,e, Muhammad Sharif, P.W.5 who stated that after the filing of the suit, respondent-defendant constructed wall on the suit property with a view to make a street in-between the house of the appellant-plaintiff and the respondent-defendant. He was corroborated by P.W.6 Muhammad Shafi. In the plaint as also in the registered sale-deed Exh. P-2, the location of the suit property has been described as Mohallah Khatkana Taraf Sidhusam whereas in the written statement filed by respondent-defendant, this aspect has not been controverted. P.W.1 Abdul Rauf, P.W.3 Muhammad Sagheer and P.W.4 Najeebuddin have not been questioned on this point. When a witness is not cross-examined on a vital point in issue, a valid presumption can be drawn about the truth of the matter not questioned. In Mst. Noor Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300), it was held as under:--- "Articles 2(1)(c) and 132(2)---Witness not cross-examined on a material part of his evidence--- Effect---Inference would be that truth of same was accepted by the other side---Statement of a witness which was material to the controversy of the case particularly stating his case---When not challenged in cross-examination, then such unchallenged statement should be given full credit and usually accepted as true, unless displaced by reliable, cogent and clear evidence."
' Learned counsel for the appellant-plaintiff, has produced Exh. P-4 which is a judgment of the Administrative Civil Judge, Multan dated 2-4-1963 whereby a suit for pre-emption with regard to a property situated in Mauza Sidhu Hisam was decreed, however, the said judgment does not indicate that the custom prevailed from the time before the commencement of Punjab Pre- emption Act, 1913. During arguments, he has, however, placed on record a copy of the judgment of this Court passed in R.S.A. No,4 of 1982 in Altaf Hussain v. Abdul Majid whereby the appeal against the judgment and decree passed qua a property situated in Mauza Sadhu Hasam was dismissed and it was observed as under:--- "Custom of pre-emption generally prevails in the entire city of Multan which is an ancient city. It was so held in the case of Jinda Ram v. Hussain Bakhsh (59 Punjab Record 1914) Gujjar Khadda consisting of Taraf Saddu Hasam and Taraf Ismail is also an old locality of Multan and is in existence for the last more than 100 years. It is a well-defined sub-division in which custom of pre- emption exists since before the enforcement of the Act. If a locality is ancient, then existence of custom in the neighbouring Mohallah is relevant and given rise to a strong presumption that it exists also in the Mohallah in which the suit-house lies. I am fortified in my view by the judgment of Panju Ram v. Mst. Niki Bai (165 Punjab Record 1888). Taraf Ismail is also an old locality lying in neighbourhood of Taraf Saddu Hasam where custom of pre-emption is prevalent. It can also be considered for holding that custom of pre-emption prevails in Taraf Saddu Hasam."
' This judgment was upheld by the Hon'ble Supreme Court and the said judgment is reported in Altaf Hussain v. Abdul Majeed (1991 SCMR 2523). The report of Mr. Muhammad Afzal Malik, Advocate who was appointed as 'Ehle-Commission' by the learned trial Court vide order dated 10-5-1971 also corroborates the version of the appellant-plaintiff that the suit land is contiguous to the house of the plaintiff. There is no street in-between two houses.
7. The evidence led by respondent-defendant consisted of D.W.1 Muhammad Ramzan who is the vendor of suit property, stated that he told the appellant-plaintiff many a times to purchase the property in question but he refused. He further stated that the respondent-defendant demolished the old house and had built a new house. Hamid Ali, appeared as D.W.2. He also corroborated that the vendor had asked the appellant-plaintiff to purchase the suit property but he refused.
Nizamuddin, respondent appeared as D.W.3. He stated that after the purchase of the house in question, he built two more rooms and made other improvements as well. However, none of these witnesses stated that custom of pre-emption did not prevail in the locality where the suit property is situated.
8. So far as the argument of learned counsel that the suit property is situated in the extended area of Taraf Sadhu Hasam and that no custom of preemption existed there is concerned, I am of the view that no evidence was led which could justify and inference that the suit property was situated in the extended area of Taraf Sadhu Hasam. This was neither pleaded in the written statement nor during cross-examination or claimed in the evidence led by respondent-defendant. The reference to Mst. Maqsooda Begum v. Maulvi Abdul Haq and others (PLD 1968 Lah. 897) on the basis of which, learned appellate Court allowed the appeal, therefore, is not relevant to the facts an circumstances of this case.
9. For what has been discussed above, the impugned judgment dated 23-6-1973 passed by Rao Iqbal Ahmed Khan, Additional District Judge, Multan is against the weight of evidence and the law declared and is, therefore, not sustainable. The same is set aside and the appeal is allowed. By allowing this appeal, the suit of the appellant-plaintiff is decreed.