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Civil Petitions Nos. 748 and 749 of 1984, decided on 30th October,1984.

(From the judgment of the Lahore High Court, dated 14‑5‑1984 passed in Civil Revisions Nos. 1750‑D and 1751‑D of 1982).

‑‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), S.8 read with Notification No. 149‑IR, dated 16‑6‑1941‑‑Custom of pre‑emption‑ Existence in vicinity of suit property proved from record and oral evidence‑‑Decision taken by High Court on question of fact not being open to doubt‑‑Supreme Court finding no apparent justification to interfere, refused leave to appeal.

Mirza Azam Beg v. Jai Dial and another 48 Punjab Record 1888 ref.

Hakem Qureshi, Advocate Supreme Court with Rana Maqbool Qadri, Advocate‑on‑Record for Petitioners.

Tanvir Ahmad, Advocate‑on‑Record for Respondents. Date of hearing: 30th October, 1984.

.‑‑ This order will dispose of two petitions for leave to appeal, namely, C.P.No.748 and C.P.No.749 of 1984. They arise out of two pre‑emption suits instituted by Khalid Hussain (predecessor‑in‑interest of the present respondents) to pre‑empt two sales, i.e. (1) 1 share in House No.A/260, situate in Kucha Kaghzian, Bazar Hakeeman, Inside Bhatti Gate, Lahore, sold by Mst.Ruqia Begum in favour of Mst.Sarwar Begum (petitioner in Civil Petition No.748/1984), and (2) the other i share of the said house sold by Mst.Munawar Begum to Muhammad Saddique (petitioner in Civil Petition No.749/1984).

2. A question, inter alia, arose for decision whether custom of pre‑emption existed in the vicinity of the suit property. All the Courts below have found the issue in the affirmative by reference to Notification No.149 I.R. dated 16‑6‑1941 issued under section 8 of the Punjab Pre‑Emption Act and the oral evidence produced in that regard read with Mirza Azam Beg v. Jai Dial and another 48 Punjab Record 1888.

3. The contention raised before us is, firstly, that the provision of section 8(2) of the Act and the aforesaid Notification, dated 16‑6‑1941 have been misconstrued by the Courts below, and, secondly, that the oral evidence produced was not sufficient to establish the existence of custom. The High Court while dealing with similar objection raised before it observed that according to the notification, dated 16‑6‑1941 the right of pre‑emption existed within "so much of the city of Lahore as lies within the Circular Road". It is not denied that the property in question does lie within the Circular Road. Even before this notification, as noticed by the High Court, a Division Bench in the aforesaid case of Mirza Azam Beg had held "that a custom of pre‑emption prevails in Guzar Talwara as regards houses". The pre‑emptor's witness Muhammad Jehangir (P.W.2) had stated:‑‑

His other witness, Mian Khair Din (P.W.1) also stated:‑‑

This evidence was not satisfactorily rebutted. In view of the law and, the evidence on record, the decision taken by the High Court is not open to doubt. Even otherwise, the controversy relates to a question of fact and as such there is no apparent justification for interference' with the same. Both the petitions are, therefore, dismissed.

M.I. Petitions dismissed.

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