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Petitioner: MUHAMMAD IQBAL VS Respondent: MST. SUGHRAN BIBI
1988 S C M R 1565
1988 S C M R 1565
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
CIVIL PETITIONS NOS.887 OF 1982
MUHAMMAD IQBAL Petitioner
versus
Mst. SUGHRAN BIBI‑‑Respondent
(From the judgment dated 24‑10‑1982 of the Lahore High Court in R.S.A. No.133 of 1982).
CIVIL PETITION No.185 OF 1983
Ch. ABDUL RASHID‑‑Petitioner
versus
Ch. MUHAMMAD TUFAIL and others‑‑Respondents
(From the judgment dated 20‑11‑1982 of the Lahore High Court passed in R.S.A. No.501 of 1972).
Civil Petitions Nos. 887 of 1982 and 185 of 1983, decided on 21st May, 1988.
Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S.7‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Right of pre emption‑‑Urban immovable property‑‑Existence of custom of pre emption‑‑Quality of evidence required to prove‑‑Leave to appeal granted to consider contention that in order to succeed, a pre‑emptor must show that the right of pre‑emption existed in the locality where property in dispute was situate in 1913; and that notifications issued by Provincial Government in 1939 and 1941 did not by themselves create a right of pre‑emption but merely saved it and unless it was shown that the right of pre‑emption existed in a particular area, the pre‑emptor could not rely upon these notifications in support of the right claimed by him.
Riaz Anwar, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner (in Civil Petition No.807 of 1982).
Tanvir Ahmad, Advocate‑on‑Record for Respondent (in Civil Petition No.887 of 1982).
Sh. Ghias Muhammad, Advocate Supreme Court with M.Aftab Iqbal Chaudhry, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record for Petitioner (in Civil Petition No.185 of 1983) .
Ch. Nawab Din Mahmood, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent No.1 (in Civil Petition No.185 of 1983).
Date of hearing: 21st hay, 1988.
ORDER
SAAD SAOOD JAN, J.‑‑These are two petitions for special leave to appeal. They arise out of a pre‑emption suit. One relates to the city of Multan and the other to property situate in Ichhra, which now falls within the municipal limits of Lahore. The question which arises for consideration in these petitions relates to the quality of evidence which a pre‑emptor should produce to establish his superior right of pre‑emption in respect of urban immovable property. Section 7 of Pre‑emption Act states:‑
"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."
The Pre‑emption Act came into force in 1913. In support of these petitions it is urged that in order to succeed a pre‑emptor must show that the right of pre‑emption existed in the locality where the property in dispute is situate in 1913. In C.P.S.L.A. No.185 of 1983, the pre‑emptor relied upon the notifications of the Provincial Government issued on 16‑6‑1941 and 24‑8‑1939. It is contended that these notifications did not by themselves create a right of pre‑emption but merely saved it; therefore, unless it was shown that the right of pre‑emption existed in Ichhra, the pre‑emptor could not rely upon these notifications in support of the right claimed by him. In C.P.S.L.A. No.887 of 1982, the pre‑emptor relied upon an earlier judgment of the Senior Civil Judge, Multan but in that judgment no proper inquiry was made for determining whether the right of pre emption existed in the locality where the property was situated.
2. The question raised in these petitions requires examination. Leave to appeal is granted. Security for costs in the sum of Rs.5,000 in each case. The appeals may be made ready for hearing on the present record with permission to the parties to file additional documents, if necessary.
M. I./M‑486/S Leave granted