1. The question which falls to be determined in this second appeal is whether the custom of pre-emption prevails in Mohalla Meghan of village Sadhaura of the Ambala District. It appears that on 29th March 1944, one Mt. Iqbal Begam sold a certain house situate in village Sadhaura to Raja Ram and Ram Kishan for a sum of Rs. 500. Tulsi Ram, who owns a house contiguous to the house which was the subject-matter of the sale, has brought the present suit for possession by pre-emption of the property in question. The plaintiff died during the pendency of the proceedings and his two sons, Phool Chanel and Mehar Chand, were impleaded as plaintiffs. The trial Court dismissed the plaintiffs' suit and the decision of the trial Court was affirmed by the Senior Subordinate Judge in appeal. The Senior Subordinate Judge has held: (a) that the house is situate in Mohalla Meghan and not in Mohalla Sawanian as is alleged in the plaint, (b) that Mohalla Meghan does not form part of Mohalla Sawanian and (c) that the custom of pre-emption does not prevail in Mohalla Meghan. The plaintiffs have come to this Court in appeal and the question for this Court is whether the Courts below have come to a correct determination in point of law.
2. The first point for decision in the present case is whether the town of Sadhaura was founded by Mohammadan conquerers for if it was founded by them the custom of pre-emption must be presumed to exist Karim Ahmad v. Bahmat Elahi A.I.R. 1946 Lah. 432. The Gazetteer of the Ambala District which was compiled in the year 1923-24 shows that this town is one of some antiquity, dating back to the time of Mahmud of Ghazni. It is the scene of a yearly fair at the shrine of a Mohammadan saint named Shah Kumais who flourished in the time of Emperor Humayun. The tradition is that the saint was directed in a dream by his ancestor Shah Abdul Qadar Jilani to quit Baghdad and to settle in Sadhaura. The fact that the saint was directed to take up his residence in Sadhaura makes it quite clear that this village or town was already in existence and was not founded by Muslims. The main basis of the claim, therefore, that the custom of pre-emption exists in this town because it was founded by Muslims immediately disappears. There are at least two parts of the town in which this custom has been found not to exist.
3. The only other point for decision in this case is whether the custom of pre-emption can be said to prevail in Mohalla Meghan in which the property sought to be pre-empted is situate. The Khasra Abadi papers prepared in the year 1849 make it quite clear that this Mohalla is not a part of Mohalla Sawanian where the custom of pre-emption admittedly prevails but is a distinct and separate part of the town. It contains about 85 houses all of which are said to be owned by members of the Megh community who profess the Hindu religion. It lies on one side of the town for it is surrounded by lands of Hindus on the east, west and south and by no stretch of imagination can this Mohalla be deemed to be a part of Mohalla Sawanian which is populated almost entirely by Muslims. Even the tazias of Mohalla Sawanian do not pass through Mohalla Meghan on the occasion of the Muharram festival.
4. It may be that the custom of pre-emption prevails in the neighbouring Mohalla of Sawanian but that fact alone is not sufficient to establish that it prevails also in the Mohalla in which the property in question is situate. Evidence of this kind can at best supplement the plaintiffs' evidence regarding its existence in the particular Mohalla. It is common ground that there have been as many as thirty sales of houses in this Mohalla but not a single pre-emption suit was filed by any person. In a case decided by Mr. H.A. Ross, Divisional Judge, on 21st September 1909, it was held that property situate in Mohalla Khari Kui which was occupied by jullahas and in which no instance of the existence or exercise of the custom of pre-emption was forthcoming, was not a Mohalla in which the custom of pre-emption could be said to exist. Similarly in a case decided by Mr. Rangi Lal, District Judge, on 13th November 1916 it was held that the lands situate in Mohalla Mirdhan (another Mohalla of the town) are not pre-emptible. It will thus be seen that here are at least two parts of the town in which the custom of pre-emption does not exist. I am clearly of the opinion that-it does not exist in Mohalla Meghan in which the property sought to be pre-empted is situate.
4. For these reasons, I would uphold the order of the Court below and dismiss the appeal but having regard to the peculiar circumstances of the case, I would leave the parties to bear their own costs in this Court.