A.N. Bhandari, J. - (1.) THE sole point for determination in the present case is whether the custom of pre -emption can be said to prevail in Mohalla Sanicbaran of the small town of Rae Kot of the Ludhiana district.
(2.) ON 12 -2 -1944, one Ram Dass brought a suit for possession by pre -emption of a plot of land situate in Mohalla Sanicharan which had been sold by Subedar Hari Singh and certain other persons to another Ram Dass for a sum of Rs. 900. The trial Court dismissed the suit on the ground that the custom of pre -emption did not prevail in the Mohalla in which the property was situate and this decision was affirmed by the learned District Judge in appeal. The Plaintiff is dissatisfied with the order and has come to this Court in second appeal. Section 7, Punjab Pre -emption Act, provides that the 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 existence in such town or Sub -division at the time of the commencement of this Act, and not otherwise. The right of pre -emption is of a piratical nature and the Courts accordingly require that the existence of the right should be proved by clear and cogent oviden before the Plaintiff 's claim can be decreed. When a question arises whether the custom of pre -emption prevails in a particular Sub -division of the town it is not enough to establish that it prevails in neighbouring or even adjacent Sub -divisions but it must be proved affirmatively that it exists in the particular Sub -division in which the property is situate. vide Thakur Das v. Muhammad Baksh, 100 P.R. 1892; Raman Mal v. Bhagat Ram, 17 P.R. 1895; Sandagar Mal v. Aman Singh,, 70 P.R. 1899; Melaram v. Prema 109 P.R. 1900 and Hakim Rai v. Mohd. Din, 83 P.R. 1901; Judicial instances provide the best method establishing the existence or non -existence of the custom in a particular locality. Decision, in contested cases which have been arrived at after examination of the evidence bearing on the point are obviously much more trustworthy and reliable than decisions which are based on compromise, for as pointed out by Sir Shadi Lal C.J. in Imperial Oil Soap and General Mills. Co. v. Mishah Uddin 2 Lah. 83 :, A.I.R. 1921 Lah. 69 there are various motives which might actuate a Defendant in making an admission in Court or settling a dispute privately, and it is difficult to say that the knowledge of the existence of the custom alone induced him to make the admission or the compromise. Tagga v. Alla Bakhsh 69 P.R. 1901 Robertson J. expressed the view that although a number of recorded cases had been relied upon in most of them the right was either admitted or the cases compromised, and they are, therefore, of much less value than they would otherwise have been. It is true that in Sham Das v. Mt. Mooto Bai 7 Lah. 124 :, A.I.R. 1926 Lah. 210 Le Rossignol J. observed that uncontested cases are very good proof of an alleged custom, for the greater the strength of the custom the less probability is there of anyone attempting to controvert it; but it must bo remembered that that case related to a dispute between the collaterals and the daughters in regard to succession and that a very large number of instances were cited. Nor can cases in which there has been no inquiry into custom be relied upon Natha Singh v. Billa Singh 58 P.R. 1900; Haji Aladad v. Nur Mustafa, 170 P.R. 1889 and Labhu v. Chendra 69 P.R. 1884.
(3.) THE Plaintiff in the present case relies on three judicial precedents in support of his contention that the custom of pre -emption prevails in this particular Mohalla. The first precedent is a judgment dated 23 -7 -1889, in which a Munsif of the Second Class held that the custom of pre emption prevails in Mohalla Budhwaran. It is true that Gainda Mal, father of the vendee, is reported to have stated in another legal proceeding that Mohalla Sanicharan is known also as Mohalla Budhwaran, but so far as I can Judge this admission cannot be regarded as binding on the vendee in the present case. The second judicial precedent on which considerable amount of emphasis has been laid is a judgment dated 30 -1 -1918, in which a Subordinate Judge held that the custom of pre -emption prevails in Mohalla Sanicharan. This case was decided on the basis of a compromise. The third judicial precedent is furnished by the judgment of Tikka Jagjit Singh Bedi, District Judge of Ludhiana dated 1 -3 -1947, in which the learned District Judge came ,to the conclusion that the custom of pre -emption prevails in Mohalla Gondwallian. It will be seen from the above that only one of these precedents relates to Mohalla Sanicharan and the decision in this case was recorded on the basis of a compromise.;