1. This is second appeal by Shadi Lal. It is directed against the judgment of Shri Ram Lal Aggarwal, District Judge, Jullundur dated December 22, 1961 upholding the judgment of Shri Gian Chand Jain, Sub Judge 1st Class Jullundur, dated January 30, 1961. dismissing the suit for pre-emption filed by the appellant.
2. Half share in House No. 226 situate in Neel Mohalla in the town of Jullundur was sold by Sansar Chand respondent No. 1 in favour of Surinder Kumar respondent No. 2 on December 5, 1958. The appellant pre-empted that sale by filing suit for possession by pre-emption on February 29, 1960, inter alia, on the ground that he was a tenant of the house and had a right of pre-emption. In the written statement filed on behalf of Surinder Kumar vendee, the vendee denied that the appellant was a tenant and further pleaded that the property being urban immovable situate in the town of Jullundur. Proof of existence of custom for pre-emption was a condition precedent for exercise of right of pre-emption. The trial Court framed several issues. Under one of the issues it was held that the pre-emptor was a tenant. The findings of the trial Court on that issue and on others were not contested before the lower appellate Court. The only point, which was argued before the lower appellate Court was that Section 7 of the Punjab Pre-emption Act, 1913 (hereinafter called the Act), making it obligatory for a pre-emptor to prove the existence of custom, did not override Section 16 of that Act and consequently on proof of his status of being a tenant of the property in dispute, the trial Court should have granted a decree for pre-emption in his favour. The lower appellate Court did not agree with that contention. In the result, the appeal was dismissed. Hence the present second appeal.
3. Shri N. K. Sodhi, appearing on behalf of the appellant has contended that a pre-emptor is entitled to pre-empt, if he establishes his right of pre-emption under Section 16 of the Act independent of the provision of Section 7 of the Act. In the alternative he also submitted that there is a judicial precedent about the existence of custom in general in the town of Jullundur and consequently his suit should be decreed.
4. Section 16 confers a right of pre-emption only on tenants, If a pre-emptor establishes under that section his right of pre-emption to urban immovable property on the ground of his being a tenant, he can succeed only if he satisfies the Court about the fact of existence of custom in respect of the urban immovable property sought to be pre-empted as enjoined by Section 7 of the Act. If a pre-emptor is to succeed, statutory obligations under both the sections must be discharged by him cumulatively and not alternatively.
5. Section 7 runs as under:--
'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.'
6. As the language of Section 7 shows, it is a kind of proviso or over rider to Section 16, A pre-emptor cannot succeed only on establishing his legal status of being at tenant. He must further prove the fact of existence of custom in the town or the sub-division of the town, in which the property sought to be pre-empted is situate. Thus the argument that the pre-emptor can succeed only on proof of his being a tenant has no substance.
7. Before dealing with the second submission made in the alternative about the existence of custom, it is necessary to refer to the relevant issue and its determination by the Courts below. That issue is issue No. 1. It runs as follows:--
'Whether there is a custom of pre-emption in the Mohalla in dispute; if not, its effect.'
8. According to the scope of this issue, the parties confined themselves to the contest of existence of custom only in respect of the urban immovable properties situate in Neel Mohalla or sub-division of the town in particular and were not in issue about the existence of such custom in general in the town of Jullundur. No evidence was led on behalf of the pre-emptor to prove the existence of that custom in that Mohalla. It is on the limited scope of that issue that the trial Court gave a finding that the pre-emptor had failed to establish the existence of that custom in that Mohalla.
9. The correctness of finding on issue No. 1 was not at all challenged before the lower appellate Court. That finding was accepted as correct. That finding being one of fact and its challenge having been abandoned in that Court and its correctness having been thus conceded before the lower appellate Court, the pre-emptor appellant cannot be allowed to take up that issue now. This is an insurmountable difficulty in the way of Shri Sodhi. In any case, the point of argument now raised is not that there does not exist that custom in the Neel Mohalla within the scope of issue No. 1 as framed in the case, but inspite of if by urging that there does exist that custom in general in the town of Jullundur. This submission falls outside the ambit of the issue framed apart from the pre-emptor being not entitled to raise it because of his having abandoned before the lower appellate Court to challenge the correctness of the finding given under that issue. Even on merits of issue No. 1 no instance has been cited by the counsel for the pre-emptor to show that there ever existed custom to pre-empt sale of urban immovable property in the Neel Mohalla, in which the property in dispute is situate. The pre-emptor has utterly failed to prove the existence of custom on the date of the commencement of the Act in that Mohalla entitling him to pre-empt the impugned sale. In the absence of any evidence or instance to the effect that there existed any custom in that Mohalla for the pre-emption of the property in dispute. The appeal must fail. No other point has been raised.
10. For the foregoing reasons, I disallow the appeal with no order as to costs.
11. Appeal dismissed.