' This civil revision is directed against the judgment and decree passed by the learned Additional District Judge, Campbellpur, dated 15-4-1975, whereby the appeal filed by the respondent has been accepted and the judgment and decree passed by the learned trial Court has been set aside.
2. The plaintiff-respondent filed a suit for possession through pre-empa tion of the suit property which according to him was sold for Rs. 1,900. He claimed superior right of pre-emption on the ground that the property in question was contiguous to his house and he enjoyed common amenities with the occupant of the house in question. The suit was resisted by the appellant on various grounds which gave rise to as many as seven issues. So far as the decision of the present civil revision is concerned, issues 1, 3, 1-A and 1-B are only relevant. Issue No. 1 relates to the fact: as to whether custom of preemption existed in Pindigheb town at the commencement of Punjab Preemption Act, 1913, issue No. 3 is about the sale price of the suit property, issue No. 1-A is: as to whether the town of Pindigheb is divided into different sub-divisions? And issue No. 1-B is, that if issue No. 1-A is proved, whether the custom of pre-emption existed in the particular sub-division at the time of enforcement of Pre-emption Act, 1913, where the suit house is situated? The learned trial Court found issue No. 1 in favour of the plaintiff-respondent, issue No. 1-A in the affirmative, issue No. 1-B against the plaintiff-respondent and with regard to issue No. 3, which was not pressed before the lower appellate Court, it was found that sum of Rs. 1,900 was the market price of the suit property. The suit was dismissed in view of the findings on issues 1-A and 1-B. The validity of the judgment and decree passed by the learned trial Court was challenged in appeal before the learned lower appellate Court which, as mentioned above, accepted the same vide the impugned judgment mainly relying upon Karim Ahmad v. Rehmat Ealhi and others (1), holding that there is no presumption that a town has sub-divisions for the purpose of Preemption Law and it is a matter of proof in each case ; and it is for the person alleging the existence of sub-divisions to prove their existence. And, further, that a city may have Mohallahs, bazars and lanes with specific names but from this it does not follow that they are recognized sub-divisions for the purpose of Pre-emption Law.
3. In para. 2 of the plaint it has been asserted by the plaintiff-respondent that custom of pre- emption pervails in the town of Pindigheb and since Mohallah Masjid Malkan is a part of the town where the property in question is situated, therefore, the custom of pre-emption also prevails there.
(1) AIR 1946 Lab. 432 ' On the contrary, it has been asserted by the defendant-appellant that town of Pindigheb is divided into mohallahs and custom of pre-emption does not prevail in Mohallah Masjid Malkan, where the property in question is situated. It has been further stated in the written statement that Mohallah Masjid Malkan was not in existence at the time when the Pre-emption Act was enforced in 1913 and as such question of existence of such custom in the said Mohallah does not arise. The plaintiff Muhammad Arif while appearing as P. W. 1 has admitted in cross-examination that town of Pindigheb is divided into various old Mohallah and he has, however, stated that many sale transactions of properties in Mohallah Masjid Malkan have already been pre-empted. He further stated that he remembered only one such instance, which however he failed to bring on record.
Similarly, Fateh Sher P. W. 2 has admitted that there are many Mohallahs in the town of Pindigheb which are very old.
4. The plaintiff-respondent has relied upon certain judgments such as Exh. P. 2 to P. 4 to prove that since custom of pre-emption has been prevailing in Pindigheb town even before the enforcement of Pre-emption Act, therefore, it can be safely concluuded that such custom is in force in the locality where the house in question is situated. In Exh. P. 2, a judgment in a suit instituted on 12-8- 1912, it has been found that town of Pindigheb is not divided into sub-divisions as mentioned in section 6 of the Pr-emption Act. In the other two judgments (Exhs. P. 3 and P. 4) it has been found that custom of pre-emption generally exists in the town of Pindigheb.
5. On the other hand, the defendant-appellant has produced certified copies of judgments in the form of Exhs. D. 2, D. 3 and D. 4 in order to show that town of Pindigheb is d vided into sub-divisions i.e., Mohallahs ; and custom of pre-emption does not prevail in particular Mohallahs. It has been found by the learned Civil Judge, Pindigheb on 4-6-1957 that existence of custom in Mohallah Bhandanwala is not proved. Similar is the conclusion arrived at vide Exh. D. 3, judgment in a case in relation to the property situated in Mohallah Bhandanwala, Pindigheb town, It has been found by the learned Additional District Judge, Campbellpur vide, Exh. D. 4, that there is no custom of pre- emption prevailing in Mohallah Bnandanwala, Pindigheb town.
' The learned counsel for the respondent has also placed on record, in addition to the documents already filed, copy of judgment dated 3-1-1975, passed by the learned Civil Judge, Pindigheb, in a case titled : "Raja Azizur Rehman v. Nazir Ahmad". Civil Suit No. 71 of 1974, holding that custom of pre-emption prevails in the town of Pindigheb. The name of the particular locality where the property in that case is situated has not been mentioned in the above mentioned judgment. It has only been mentioned to be situated in the town of Pindigheb. In that judgment many judgments passed right from 1908 to 1970 have been relied upon by the learned Civil Judge for holding that custom of pre-emption prevails in the town.
6. It has been held in Rarrji Das v. Mam Chand and another (1), that in suits far pre-emption in respect of properties situated in a town however probable and seeming the plaintiff's case may be, he should never be relieved of the burden to prove the existence of alleged custom in the special locality in which the property is situated, proof of its existence in neighbouring Mohallahs being, at best, only supplementary of the evidence required of the plaintiff.
(I) A 1 R 1922 Lah. 367 ' The property in that case was situated in the locality known as Para Chhajjan in Rothak District.
Though the custom of pre-emption was found to be generally in existence in Rohtak District, it was found that so far as particular locality as referred to above was concerned the pre-emptor was liable to prove the existence of such custom in the said locality and in the absence thereof decree could not be passed in his favour.
7. Similar view was taken in Hakim Rat v. Amar Nath another (1), holding that where the onus hes on the plaintiff to prove that custom of preemption prevailed in a certain part of the town at the time of commencement of the Punjab Pre-emption Act, 1913, and even though the custom has been found to be in existence in other subdivisions of the town, that fact, though relevant to the issue does not discharge the onus. The property in that case was situated in Mohallah Kohlian, Wazirabad town and it was denied by the vendee that any custom of pre-emption prevailed in the said Mohallah at the time of commencement of the Pre-emption Act. It was found that said custom was prevailing in other sub-divisions of the town at the relevant time, but that fact was not considered to be sufficient to discharge the onus placed on the plaintiff. Since the plaintiff failed to prove that custom of pre-emption prevailed in Mohallah Kohlian at the time of commencement of the Act the suit was dismissed.
8. In another case reported as Amar Nath v. Hakim Raj (2), probably relating to the same property and between the same parties as in the latter case, it was held that custom of pre-emption did not prevail in Mohallah Kohlian in the town of Wazirabad. It was further held that in the case of a town which was divided into sub-divisions it was necessary for a person claiming the right of pre- emption to prove the existence of custom of preemption in the particular sub-division in which the property in dispute was situated.
' It may be noted that in both the cases i.e., 1930 Lahore and 117 I C, Wazirabad, which was a small town in 1929-30, was held to be divided into Mohallahs which terminology was held to be synonyms to subdivisions.
9. AIR 1946 Lah. 432, containing the report titled Karim Ahmad v. Rehmat Elahi and others, has been relied upon by both the parties, particularly by the respondent. The property in that case was situated in famous Mohallah of old Dehli, known as Matia Mahal. It has been found that since old Dehli, where the said Mohallah was situated, was founded by Muslims who believed in the Law of Pre-emption, therefore, custom of pre-emption should be presumed to be prevailing there. It has also been found that there is no presumption that a town has sub-divisions for the purpose of Pre- emption Law. It is a matter of proof in each case and it is for the person alleging the existence of sub-divisions to prove that they do exist Further, that the word "sub-division" has not been defined and it is not in all cases synonymous with Mohallah. The term implies a quarter of a town well known and recognized and does not mean the streets and lanes of the town. It has been further observed in the said case, that a city may have Mohallahs, bazars and lanes with specific names, but from this fact it does not follow that they are recognized sub-divisions for the purposes of Pre- emption Law. It has also been held that the test for a place being sub-division is that there should be something in its structure, situation and character which makes it a
(1) AIR 1930 Lah. 528 (2) 117 I C 811 recognized unit for Pre-emption Law. Because the name of a quarter of in toss a is well known that fact does not necessarily make it a sub-division for the purpose of the Act.
10. The appellant has lastly relied upon Mst. Magsooda Begum v. Moulvi Abdul Haq and others (1). It has been held therein that section 7 of the Pre-emption Act recognises custom of pre-emption in regard to urban immovable property either in whole of the town or particular sub-division of a town if the right of custom is proved to be established in that sub-division, or town generally, and if custom of pre-emption is not proved to be established in a particular town or a subdivision of a town at the commencement of the Act, such right of custom cannot be extended to that town or any of its sub-divisions after the commencement of the Act.
11. In the instant case, it has been alleged in the written statement by the appellant that Mohallah Masjid Malkan was not in existence at the time when the Pre-emption Act came into force in 1913.
As mentioned above, it has also been admitted in cross-examination by the plaintiff as P. W. 1 that there are many Mohallahs in the town of Pindigheb and custom of pre-emp tion prevails particularly in Mohallah Masjid Malkan, which is in dispute.. The above discussion would also show that there are many Mohallahs in Pindigheb town and, as stated earlier, in some of them custom of pre-emption does not prevail even now. If the Mohallah in question existed at the time of commencement of the Pre-emption Act then in view of the finding by both the Courts below that custom of pre-emption exists generally in the said town,, it will be difficult to hold that custom of pre-emption does not prevail in the said Mohallah.
' In 1946 Lahore it has been found that since Mohallah Matia Mahar was part of old Dehli where custom of pre-emption prevailed, therefore, the-said custom also prevailed in that Mohallah.
' In the present case there is nothing on record to show that Mohallah Masjid Malkan exited at the time of commencement of the Pre-emption Act. It is vehemently argued by the learned counsel for the respondent that said Mohallah exists in the centre of the town, therefore, it can be inferred therefrom that it existed at the time of the commencement of the Act. I am not in a position to say anything in this behalf as there is no finding, whatsoever, in this respect by both the Courts below.
The learned Additional District. Judge has found that since custom of pre-emption prevails generally in the town of Pindigheb, therefore, the same also prevails in the Mohallah in question being part of the town. As stated earlier, if the said Mohallah was not in existence at the time of commencement of the Act then question of prevailing of custom of pre-emption in the Mohallah may not arise, as according to law the said custom will only be prevailing in a town or a quarter of town if it existed at the time of enforcement of the Act. As discussed above, it has been found by a competent Court at Pindigheb that custom of pre-emption does not exist in Mohallah Bhandanwala of the said town.. There is no finding however to the effect that Mohallah Bhandanwala came into existence after the enforcement of the Act. The only conclusion is that since custom of pre-emption has not been found to be prevailing in that: Mohallah, therefore, suit for pre-emption of urban immovable property situated there would not be competent.
12. The learned lower appellate Court while deciding the case against the appellant has relied upon the observations made by the High Court in
(1) PLD 1968 Lah. 897 ' AIR 1946 Lahore with regard to existence of sub-divisions or Mohallahs in a town ; and without discussing as to whether the particular Mohallah Pindigheb town is synoymous with sub-division or not, and whether Mohalla Masjid Malkan is recognized unit for pre-emption law as defined in the said case, has straight away concluded that custom of pre-emption exists in Mohallah Masjid Malkan as the said custom is generally in existence in Pindigheb town. In the circumstances, it requires inquiry and probe as t whether Mohallah Masjid Malkan was in existence at the time of enforcement of the Pre-emption Act? And if not, whether thereafter it assumed the character of a recognized unit for the purpose of Pre-emption Law?
13. As a result of the above discussion the judgment and decree passed by the learned lower appellate Court is hereby set aside and the appeal is accepted without any order as to costs. The case is remanded to the learned District Judge, Campbellpur for the purpose of being entrusted to the competent Court for fresh decision on issues 1-A and 1-B in accordance with law in the light of the observations made above. If the parties wish to adduce further evidence on the said issues, they would be at liberty to do so. . Case remanded.