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Civil Petition for Leave to Appeal No. 90 of 1983, decided on 3rd May, 1983.

(On appeal from the judgment and order of Lahore High Court dated 12‑12‑1982 to R. S. A. No. 538 of 1980).

---Art. 185(3j‑Pre‑emption‑Custom‑Custom of pre‑emption estab lished in locality where suit property situate‑Issue of fact having been concurrently decided by Courts below in favour of respondent High Court, held, justified in not interfering with same in regular second appeal‑Petition for leave to appeal dismissed. [Pre‑emption]:

Ch. Muhammad Ashraj Wahlah, Advocate Supreme Court with M. A. Quraishi, Advocate‑on‑Record for Petitioners.

Ashraf Azeem, Advocate Supreme Court with Sh. Abdul Karim, Advocate- on‑Record for Respondent.

Date of hearing: 3rd May, 1983.

By this petition leave is sought to appeal against the judgment and order of the Lahore High Court Multan Bench, dated 12‑12‑1982 in R. S. A. No. 538 of 1980.

2. A shop situate in Mauza Khangarh, Tehsil and District Muzaf fargarh was purchased by the petitioners from one Muhammad Ramzan for a sum of Rs.7,000 through a registered sale‑deed dated 29‑10‑1975. The respondent Muhammad Ismail filed a suit for possession through pre -emption showing the disputed property as a house. The petitioners raised pre liminary objection that the property in question was a shop and as such was not pre‑emptible. The trial Court framed 9 issues out of which Issue No. 2 "whether the property in suit is not pre‑emptible" is material for disposal of this petition. On this issue the finding of the learned Civil Judge, vide judgment dated 14‑7‑1979 is that the suit property was originally built for residential purpose and was used as such, and was, therefore, pre‑emptible. He, therefore, decreed the suit in favour of the plaintiff/petitioner. On appeal the learned Additional District Judge confirmed this finding vide his judgment dated 17‑5‑1980 R. S. A. filed in the High Court was also dismissed vide the impugned Judgment dated 12‑12‑1932.

3. Learned counsel for the petitioners contended that the learned Courts below have not touched the finding of the trial Court on all the issues except Issue No. 3 "whether the custom of pre‑emption exists in the locality where the suit property is situate"; and that perusal of the Grounds of Appeal before the lower Courts show that the petitioners had expressly challenged the findings of the trial Court on all the issues and there is not an iota of evidence on record to show that any concession had ever been made by the petitioners but to press the findings of the trial Court on issues other than Issue No. 3 that the observation of the learned Judge that petitioners challenged the finding of the trial Court on Issue No. 3 runs counter to the contention recorded on page 4 of the impugned judgment which reads as follows:

"Since the learned Additional District Judge has failed to discuss issues other than Issue No. 3 and give his findings thereon, his judgment is not a legal judgment and merits to be set aside."

4. We have gone through the judgment and find that this is not so. In the paragraph of the impugned High Court judgment, referred to above, it is the contention of the counsel for the appellant which has been recorded because in the following paragraph it is recorded:

"As against this, the learned counsel for the respondent/plaintiff has vehemently defended the findings of the Courts below on Issue No. 3. He submits that since Issue No. 3 being an issue of fact and the learned Courts below having concurrently decided this issue in favour of the respondent/plaintiff, there is no legal justification to interfere with the same in R: S. A."

5. We would also maintain the' order of the learned High Court as it is based on concurrent finding of the Courts below and particularly in view of the fact that in the impugned judgment of the High Court reference has been made to various pieces of evidence showing that the pre‑emption was an established custom in the locality where the suit property is situate. Thus, we find no merit in this petition, which is consequently, dismissed.

M. Z. M. Petition dismissed.

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