' Respondent No,1 purchased a house from respondent No,2 vide registered sale-deed, dated 8-2- 1978. The house is located in a locality known as Pir Khurshid Colony, Lohari, Gate, Multan. The house was sold for a consideration of Rs,83,000. On 7-2-1979 Malik Allah Yar, appellant No,1 claiming to be an owner of the house adjacent to the said house filed a suit for possession of the suit house by pre-emption. This was followed by a suit filed by Shahid Manzoor Khan, appellant No,2 who also claimed to be an owner of the house adjacent to the said house. Both the suits were contested by vendees/defendants whose case was that the custom of preemption does not prevail in the locality where the house is 'located. The precise contention is that Pir Khurshid Colony had not even existed at the time of commencement of Punjab Pre-emption Act, 1913 and as such there is no question of any custom .Of pre-emption prevailing in the said locality. Both the suits were consolidated in terms of section 28 of the Punjab Preemption Act, 1913 and several issues were framed reflecting the pleadings of the parties. To my mind all important issues in this litigation was Issue No,15 which is reproduced below:--
15. Whether custom of pre-emption has been in existence in the locality in which the suit property is situated since the commencement of Punjab Pre-emption Act, 1913?
' Evidence of the parties was recorded and the learned trial Court decreed the suits of both the pre- emptors in equal shares on payment of Rs,8,000 vide Judgment and decree, dated 24-6-1985.
Feeling aggrieved the vendee/ defendants filed two appeals which were heard by a learned Additional District Judge, Multan who allowed the appeals and, consequently dismissed the suits filed by the appellants on 4-7-1989.
2. This R.S.A. Was filed jointly by the two pre-emptors Malik Ahmed Yar (deceased) and Shahid Manzoor Khan. During the pendency of the R.S.A. Shahid Manzoor Khan, appellant No,2 withdrew the amount deposited by him in the trial Court including the Zar-i-Punjum. These facts were brought to the notice of the Court through a C.M. Which was accompanied by the records of Nazir and Treasurer in the trial Court. Be that as it may, both the parties were jointly represented by Syed Mumtaz Ahmad, Advocate and he also conceded the said fact. The result is that Malik Ahmed Yar's appeal alone remained against the impugned judgment and decree.
3. Learned counsel for the appellants argues that the learned Additional District Judge has passed the impugned judgment and decree by ignoring plethora of evidence in the form of several judgments and decrees produced by the appellants to prove the fact that the custom of pre- emption was prevailing in the area. He further argues that the reasoning given by the learned Additional District Judge for reversing the judgment of the learned trial Court is based on evidence which was led by the vendee/defendant withodt pleading that the suit house is located on land which was initially agricultural land. According to learned counsel the impugned judgment violates rule or secondum allegata ed probata. Mr. Manzoor Ahmad, learned counsel for the respondents/vendees on the other hand, contends that the reasoning adopted by the learned Additional District Judge in coming to the conclusion that the custom of pre-emption did not prevail in the locality is logical and is supported by law declared by the superior judiciary.
4. Records of the learned trial Court are available and I have gone through the same with the assistance of the learned counsel for the parties. The main reliance of the learned counsel for the appellants is on a judgment, dated 12-8-1907 given by Karam Chand, Munsaf 2nd Class, Multan holding that TarfMubarak is a Sub-Division of the Town of Multan. This judgment was followed in the several other judgments relied upon by the appellants during the course of trial. There is no manner of doubt that a reading of the judgments relied upon by the appellants as well as the respondents does lead one to the conclusion that in Tarf Mubarak the custom of pre-emption did prevail at least before the year 1913. The learned Additional District Judge, has, however, after reading the relevant pieces of evidence on record concluded that Pir Khurshid Colony as a locality came into existence somewhere in the year 1955-56 and prior to that the area was agricultural land and recorded as Chahi/Nehri and was being cultivated, After determining the said fact the learned Additional District Judge proceeded to reverse the findings of the learned trial Court with reference to the cases of Mst. Maqsooda Begum v. Maulvi Abdul Haq and others PLD 1968 Lah. 897, Muhammad Din v. Sh. Faqir Muhammad PLD 1987 Lah. 205 and Dr. Iqbal Ahmad Chaudhry v.
Muhammad Inayat through Legal Heirs and another 1993 SCMR 1477 by holding that the locality known as Pir Khurshid Colony formed an extension of the Town and on the principle that with an extension of the town the right or custom of pre-emption is not automatically extended. He has held that the custom of pre-emption did not prevail in the locality and also followed the judgment to the effect that there is no question of their being custom of pre-emption in the locality which came into existence after the commencement of the Punjab Pre-emption Act, 1913.
5. Mirza Manzoor Ahmad, learned counsel for the respondents has brought to my notice the judgment of the Supreme Court in the case of Nazir Ahmad v. Fateh Muhammad 1994 SCMR 529.
Incidentally this case pertains to the same area i,e, Mohallah Pirana, Tarf Mubarak Awwal. Upon a consideration of same findings of fact as have been recorded by the learned Additional District Judge the area was agricultural land and was being cultivated and the Abadi in question was a new Abadi. Mr. Justice Abdul Shakoorul Salam (as his Lordship then was) observed as follows:- "The appellant had resisted the suit by saying that custom of preemption did not prevail in the area as it was a new Abadi. An issue was accordingly framed. Plaintiff-respondent's" own statement was that it is correct that before the creation of Pakistan, the area was agricultural land and after the creation of Pakistan Abadi began. From this it is quite plain that in 1913 the custom of pre-emption did not prevail in the area, therefore, the suit for possession by preemption did not lie under the provisions of Pre-emption Act."
' In the present case the documentary evidence on record relied upon by the learned Additional District Judge i,e, Exhs.D.15, D.16, D.17 and. D.18 do go to prove that Pir Khurshid Colony started coming up in the year 1955-56. Learned counsel for the respondents also pointed out that P.W.1 a witness for one of the pre-emptors had admitted that Pir Khurshid Colony came into existence after the independence of the country. To my mind in view of the said factual position the case of Nazar Muhammad (supra) clinches the issue and I find that the findings of the learned trial Court on Issue No,15 had rightly been reversed by the learned Additional District Judge.
6. As to the objection of the learned counsel that the said evidence i,e, documents. D.15 to D.17 could not have been considered by the learned Additional District Judge as they constitute evidence of a fact not pleaded by the respondents/vendees suffice it to say that the objection is rather misplaced. In her written statement filed on 22-10-1979 the respondents/ vendees specifically stated that Pir Khurshid Colony where the suit house is located did not exist at the time of commencement of the Punjab Pre-emption Act, 1913. To my mind this is sufficient pleadings and it is this plea which the respondents successfully proved by producing the said evidence relied upon by the learned Additional District Judge. It is nobody's case that the learned Additional District Judge has misread the said evidence.
6. The R.S.A. Is accordingly dismissed leaving the parties to bear their own costs.