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Civil Petition No.482 of 1984, decided on 25th October, 1984.

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, dated 3‑3‑1984 passed in F.A.O.No.33 of 1983).

‑‑Art.185(3)‑‑Punjab Pre‑emption Act (I of 1913), S.7‑‑Custom of Pre‑emption‑‑Whether prevalent‑‑Burden of proof‑‑Leave granted to consider whether:

(i) their existed a Town/Sub‑Division at relevant time for purpose of the Punjab Pre‑emption Act, 1913 could be presumed in absence of any evidence on record; and

(ii) There was no presumption either in favour of existence of right of pre‑emption or against it.‑‑[Burden of proof].

Mst. Maqsood Begum v. Moulvi . Abdul Haq and others P L D 1968 Lah. 897 and Pervez Akhter v. Muhammad Arif P L D 1977 Lah. 394 rel.

Ch. A. Waheed Saleem, Advocate Supreme Court instructed by Mahmood A. Qureshi Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 25th October, 1984.

‑ This petition for leave to appeal is from the judgment of the Lahore High Court Multan Bench dated 3‑3‑1984 whereby the First Appeal of the petitioner challenging the order of the learned Additional District Judge, Multan dated 3‑7‑1982 was dismissed

2. A suit for possession through pre‑emption was instituted by the respondent against the petitioner in respect of house No.4930 situated in Mohalla Valvat outside Bohar Gate, Multan City. The right of pre‑emption in the suit was claimed on the ground of contiguity to the property of the plaintiff /respondent and common entrance. The suit was dismissed by the learned trial Court on 24‑5‑1980 having found under sue No.4 that, (i) the custom of pre‑emption did not prevail in the locality in which the suit house was situated and (ii) the property was not proved to be urban. However, on appeal by the respondent the learned Additional District Judge, Multan reversed the above findings on 3‑7‑1982 and held that since custom of pre‑emption was proved to be prevalent in the Sub‑Division of Mauza Taraf Ismail it was not necessary for the plaintiff /respondent to prove existence of such custom in the Mohalla and Street. With such findings the case was remanded to the trial Court for decision of the remaining issues. This judgment was challenged by the petitioner in an F.A.O. before the High Court which was dismissed as per impugned judgment.

3. The learned counsel after taking us through the judgments passed in the case and the evidence on the record, contended that the plaintiff/ respondent had failed to prove that the disputed property was situated in Taraf Ismail and had further failed to show as to whether the particular sub‑division was in existence at the time of enforcement of Punjab Pre‑emption Act, 1930 (hereinafter to be referred to as the Act). It was lastly pointed out that from the evidence on the record it was not borne out whether at the time of announcement of Pre‑emption Act the custom of pre‑emption was prevalent in the locality where the suit property was situated. Section 7 of the Act relied upon by the learned counsel reads as follows:

"Section 7‑‑ Subject to the provisions of section 5, a right of pre‑emption shall exist in respect of urban immovable property in any town or sub‑division of a town when a custom of pre‑emption is proved to have been in existence in such town or sub‑division at the time of the commencement of this Act, and not otherwise.

4. In deciding the relevant issue No.4 as to whether the custom of pre‑emption prevailed in the locality where the suit property was situated before the enforcement of the Act, it was held on the basis of evidence, by the learned trial Court that the burden to prove the assertion with regard to existence of custom of pre‑emption was upon the plaintiff/ respondent who had failed to lead any evidence in respect of this specific point. The learned First Appellate Court with the observation that the custom of pre‑emption prevailed in the locality where the disputed house is situated upset this finding. It was contended by the learned counsel that there was no evidence on record that Taraf Ismail, if at all a sub‑division of Multan City, was in existence at the relevant time and in the absence of evidence it could not be presumed that their existed a town or a sub‑division for the purpose of pre‑emption Act because it was a matter of proof in each case. There is no presumption either in favour of existence of right of pre‑emption or against it. In support of the above contentions reliance was placed by the learned counsel on Mat. Maqsood Begum v. Moulvi Abdul Haq and others P L D 1968 Lah. 897 and Pervez Akhter v. Muhammad Arif PLD 1977 Lah. 394.

5. The contentions raised above require examination and leave is, therefore, granted. Security Ra.2,000. Interim stay already granted on 7‑5‑1984 shall continue until disposal of this appeal.

M.I. Leave granted.

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