' This is an appeal against the judgment, dated 23-11-1976, passed by a learned Additional District Judge, Mianwali, whereby, the appeal filed by the respondents was accepted by him and the judgment of the learned trial Court, decreeing the suit for the pre-emption, was set aside. It has arisen in the following circumstances:---
2. Noor Muhammad had sold the suit property in favour of the respondents as a result of consent decree. The appellant filed a suit to pre-empt the sale on the ground of co-sharer in the Khata as also the owner of the adjacent property. The suit was contested by the respondents, inter alia, that the transaction was not pre-emptable on account of location of the suit property and that no custom of pre-emption prevailed in the locality. Issues emerging out of the pleadings of the parties were framed by the learned Trial Court. The parties produced evidence in support of their respective pleas. On appreciation of the evidence, the suit was decreed by the learned trial Court on 13-11975 where against an appeal was filed by the respondents and the matter was remanded by the learned Appellate Court to the learned trial Court correcting the onus of issue No,7. On remand, some additional evidence was produced by the parties. On considering the same, the learned trial Court decreed the suit vide judgment, dated 31-11976. The said judgment was appealed against by the respondents which, as mentioned above, was accepted by the learned Appellate Court on 23-11-1976. It may be noted that only findings on issue No,7 were challenged before the learned Appellate Court which were reversed by it. Hence this second appeal by the plaintiff/pre-emptor.
3. It is contended by the learned counsel for the appellant that the approach of the learned Appellate Court in reversing the findings of the learned Trial Court on issue No,7 is not consistent with and supported by the evidence on record. It is contended that the findings of the learnd Appellate Court as to the location of the snit property in Ward No,8 is result of misreading of evidence on record and misinterpretation if paragraph No,2 of the plaint.
4. The respondents have not entered appearance despite registered notices, issued to them. The appeal, therefore, has been heard ex parte.
5. The sale which was sought to be pre-empted by the appellant in his suit was based on a decree of the Civil Court, Exh.P2, passed in a suit for declaration, filed by the respondents against Noor Muhammad, the owner/vendor, of the suit property. The description of tile suit property as given in the suit and the decree is that the same is located in Ward No,8. In order to prove that custom prevailed in the locality where the suit property was situated the appellant/plaintiff had to discharge the onus of issue No,7. No worth evidence was produced by the appellant/plaintiff except the production of copies of judgments Exh.P8 and Exh.P9. It has come on the record that judgment Exh.P8 pertains to a property situated in Ward No,9 which was presently numbered as Ward No,20. Likewise, judgment Exh.P.9 pertained to property situate in Muhallah Sheikh Rao. These two judgments would have been relevant if evidence of a cogent nature would have been produced by the appellant/plaintiff to prove that the suit property in the present case was also situated in the same Muhallah. No such evidence has been brought on record to connect the suit property as had been the subject-matter of judgments Exhs.P8 and P9. In Lekh Raj and Ramji Das v.
Inder Mal and Sain (ILR 4 176) the (Westin,' 2F, to the requirement of proof of existence of custom was dealt with as follows:-- "As held in Melaram v. Mst. Banao (1), a case which has been cited with approval in another recent case reported as Prabh Dial v. Bhikhoo Mal (2), it may now be taken as settled that where a town is divided into sub-divisions, the pre-emptor must prove affirmatively the existence of the custom of preemption in the particular subdivisions in which the property is situated and that the onus is not discharged by proof of the custom in the neighbouring sub-divisions."
' In Ramji Das v. Mam Chand and another (AIR 1922 Lahore 367) the view taken in Sudaga Mal v.
Aman Singh (70 PR 1899) that:--- "In suits for pre-emption in respect of property situate in a town, however, probable and seeming the plaintiff's case may be, he should never be relieved from the burden of proving the existence of the alleged custom in the special locality in which the property is situated, proof of its existence in neighbouring muhallas being at best only supplementary of the evidence required of the plaintiff." ' approved and adopted.
6. The fact that a custom is found to exist in one sub-division does not per se lead to the presumption that it exists in another, it is a question of fact to be proved and established by producing evidence of its existence. A decision on custom is merely an instance relevant for a particular custom but the applicability of such a decision is again the question of fact dependent upon the proof of the suit property being situated in the same Muhallah or sub-division to which the judgment cited relates. The judgments cited and produced by the respondent/plaintiff i,e,, Exh.P.8 and Exh.P.9 concern with a different ward. They, thus, had no applicability to the facts of the case.
7. Mere assertion that there prevailed custom in the locality was of no avail to the appellant/plaintiff. That the suit property is situated in Ward No,8 was supported by the decree of the Court Exh.P.2 itself and the same was the subject-matter of the suit for pre-emption. The appellant/pre-emptor did not bother to produce cogent and convincing evidence after the onus of proof of issue No,7 was corrected by the learned Appellate Court, to prove that the description of the suit property in the decree, Exh. P.2, was not correct or that the custom of pre-emption existed and prevailed in the said locality. The spot inspection report could not be a substitute for evidence of a cogent nature to discharge the onus of proof of the issue. Thus, the assumption on which the findings of the learned Trial Court proceeded that the suit property was situated in Ward No,20 was rightly reversed by the Appellate Court. The view taken by the learned Appellate Court is amply supported by the evidence on record and does not call for interference. I am, therefore, inclined to uphold the findings of the learned Appellate Court on the relevant issue.
' In view of the above, this appeal has no merit which is accordingly dismissed. No order as to costs.