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Civil Petition No. 162 of 1985, decided on 13th November, 1985.
(On appeal from the judgment, dated 27‑1‑1985 of the Lahore High Court, Multan Bench, Multan, in R.S.A. 60 of 1982).
‑‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Custom‑ Existence of, custom of pre‑emption in locality where property in question situated‑‑Plaintiff admitting in cross‑examination that house in question was situated in area which was under cultivation till creation of Pakistan and it was converted gradually into residential area‑‑Petitioner stated that no suit for pre‑emption could be successfully brought in respect of a house situated in new Abadi and an outgrowth of city‑‑Leave to appeal granted to consider questions involved.‑‑[Custom (Punjab)].
Mst. Maqsooda Begum v. Maulvi Abdul Haq and others P L D 1968 Lah. 897 and Fazal Karim v. Muhammad Afzal and others 1982 SCMR 997 ref.
Mian Nusratullah, Senior Advocate Supreme Court with Walayat Umar Ch., Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 13th November, 1985.
The question for determination in this case was whether the custom of pre‑emption existed in the locality where the house in dispute was situated
According to the sale‑deed, the house was stated to be situated in Mohallah Basti Pareran outside Lohari Gate, Multan City. It is admitted that the house lies in Taraf Mubarik Awal and in order to established that the custom of pre‑emption existed here, reference was placed on Exh. P. 11 and Exh. P. 5. These are certified copies of the judgment of the civil Court delivered on the 12th August, 1907 and 29th June, 1949, respectively which showed that the custom of pre‑emption in Basti Pareran and Taraf Mubarik prevailed here.
The contention before the High Court was that even though the custom of pre‑emption might have prevailed in Taraf Mubarik no such custom existed in Taraf Mubarik Awal, wherein the house in dispute was actually situated. The learned Judge in the High Court repelled this plea by observing that Taraf Mubarik Awal is nothing but a part of Taraf Mubarik and on this finding held that the custom of pre‑emption can be "very well said to exist in the locality where the house in dispute lies". This view is challenged by this petition.
Mian Nusratullah, learned counsel for the petitioner drew our attention to the statement of the plaintiff Fateh Muhammad who had admitted in his cross‑examination that the house in question was situated in the locality known as 'Bobayki Marhi, which area were under cultivation until the creation of Pakistan and thereafter, it was converted gradually into residential area and argued that no suit for pre‑emption could be successfully brought in respect of a house situated in the new Abadi and an outgrowth of the city. This submission is supported by Mst. Maqsooda Begum v. Maulvi Abdul Haq and others P L D 1968 Lah. 897 and Fazal Karim v. Muhammad Afzal and others 1982 S C M R 997.
Leave is; accordingly, granted.
Security in the sum of Rs.2,500.
The execution of the decree will remain stayed and the petitioner not ejected from the house in dispute meanwhile.
M. Y. H. Leave granted.
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