1. MUHAMMAD SHARIF, C.J.--The Chief Justice by his order dated 3-10-1969, which is reproduced below, referred this appeal to the Full Bench for hearing in order to obtain an authoritative decision on the knotty and difficult points of law arising in this second appeal:-- Abdullah sold the suit land Khasra No, 365 measuring 3 kanals situate in village Panjgran in favour of Abdul Aziz appellant by a sale-deed registered on 8-11-1962 for an ostensible consideration of Rs, 800. Abdul Razzak respondent brought a suit to pre-empt the sale on the ground that it was the joint property of the vendor and the plaintiff-pre-emptor; and that he had on that ground a right of prior purchase as compared to the vendee. He also showed that Rs, 800 had been fixed as the price in the sale-deed in order to ward off pre-emptors and that, in fact, Rs, 400 had been paid; and that was the market value of the suit land. The Sub-Judge framed the following issues:-- (1)Does the plaintiff possess a prior right of purchase over the suit land as compared to the vendees ? O. P. P. (It may be pointed out here that the word has been wrongly entered in the issue because there is only one vendee).
2. (2)Was the price of the suit land fixed at Rs, 800 in good faith and was this price actually paid by the vendee to the vendor ? 0. P. Vendee.
3. (3)In case issue No, 2 is not proved in the affirmative what is the market value of the suit land ? 0.
4. P. Parties.
5. (4)Was the plaintiff a party to the negotiation of the sale and he had thereby lost his right of prior purchase ? 0. P. Vendee.
6. (5)Is the plaintiff's suit liable to be dismissed on the ground of part pre-emption ? 0. P. Vendee.
7. (6)Relief.0. P. P.
8. On issue No, 1 the learned Sub-Judge by his judgment dated 30-10-67 held that the vendee is the son of the sister of the vendor, therefore, he possessed a prior right of purchase as compared to the plaintiff. The learned Sub-Judge did not give any finding with regard to the claim of the plaintiff that he is a co-sharer with the vendor. On appeal by the pre-emptor the learned District Judge by his judgment and decree dated 1-10-1968 deciding issue No, 1 held that the plaintiff-pre-emptor is a real nephew (brother's son) of the vendor, therefore, he possessed the prior right of purchase as compared to the vendee who is the son of the vendor's sister and he decreed the plaintiff's claim.
9. The vendee has now come up in second appeal.
10. Learned counsel for the vendee-appellant has referred to para. 3 of the plaint and so to para. 3 of the written statement of the vendee. The plaintiff in para. 3 of his plaint alleged that the suit land is the joint and undivided property of the plaintiff and defendant No, 2 i. e. the vendor; on account of which the plaintiff possessed the prior right of purchase as compared to defendant No, 2 vendor.
11. The vendees in para. 3 of their written statement denied para. 3 of the plaint and showed further that the suit land had since long fallen to the share of the vendor as a result of a family partition. He denied that the plaintiff had any right of prior purchase as compared to him, the vendee, because the defendant-vendee claimed to be the son of the sister of the vendor and a legal heir, under the Personal Law, of the vendor. Learned counsel argued that the plaintiff had not averred in his plaint that he was the son of the real brother of the vendor but that he had only claimed to be a co- sharer with the vendor and, therefore, his case would be covered by clause fourthly of section 14 (b). On the other hand the vendee who claimed to be son of the sister of the vendor came before the plaintiff because his case is covered by clause thirdly of section 14 (b) of the Right of Prior Purchase Act. (Corresponding to section 15 of the Punjab Pre-emption Act).
12. The plaintiff examined Abdullah vendor as his witness who stated that he had, in fact, sold the suit land for Rs, 400 and also received only Rs, 400. He further stated that the plaintiff is the son of his real brother while the vendee is his sister's son. The learned District Judge relying on the statement of P. W. 1 Abdullah held that the plaintiff being, the brother's son of the vendor comes before the vendee who is the sister's son of the vendor and, therefore, possessed a right of prior purchase as compared to the vendee. Learned counsel for the vendee-appellant argued that a pre-emptor could not be allowed to succeed on a ground other than the one relied upon by him in the plaint, even if such other ground is proved from evidence. He cited AIR 1933 Lah. 774 (1) in which Dalip Singh, J. laid down that: " A pre-emption suit should state the ground on which right is claimed; and though the Court has discretion to allow amendment in all 'cases where it may be just and proper to do so, where the effect of the amendment of the plaint by which plaintiff seeks to change the ground on which his right is claimed is to take away from the defendant a legal right which has accrued to him by lapse of time, such amendment should not be allowed."
13. Learned counsel for the appellant's stand was that the plaintiff having claimed right of prior purchase on the ground of his being a co-sharer with the vendor, his case was covered by clause "fourthly" of section 14 (b) of the Right of Prior Purchase Act whereas the defendant who claimed to be the sister's son of the vendor and the vendor had proved this fact by appearing as a P. W. fell within clause "thirdly" of section 14 (b). He also argued that the plaintiff cannot be allowed to succeed on a ground different from the one taken in the plaint to establish his right of prior purchase.
14. Learned counsel for the pre-emptor-respondent argued that the fact of the plaintiff being the son of the real brother of the vendor was proved not only from the statement of P. W. Abdullah but also from the statement of D. W. Fazal Ellahi whose statement appears on page 22 of the trial Court file.
15. Fazal Ellahi stated in cross-examination that Abdul Razzak (pre-emptor) on account of being the son of the real brother of Abdullah (vendor) stands in a nearer degree of relationship to the vendor than the vendee. Munshi Ghulam Hussain D. W. whose statement appears on page 19 of the trial Court file also admitted in cross-examination that the plaintiff is co-sharer with the vendor in land Khasra No, 365 which is the suit land. Learned counsel argued that not only he had been proved to be a co-sharer with the vendor but also an agnate of the vendor, therefore, his case is covered by clause "secondly" of section 14(b) whereas the case of the vendee is covered by clause "thirdly".
16. Therefore, it should be decided that the plaintiff-pre-emptor possesses a prior right of purchase as compared to the vendee. His attention was drawn to a Division Bench case of our own High Court which perhaps has not been reported entitled Kola Khan v. Muhammad Latif Civil Appeal No, 15 of 1963 decided on 6-1-1965 which judgment was again confirmed in a review petition decided on 1- 12-1965. It was held in this Division Bench judgment of our own High Court that a pre-emptor cannot succeed on a ground different from the one on which he had based his claim in the plaint.
17. Learned counsel for the pre-emptor-respondent distinguished this case from the present one on the ground that in the earlier decided case the ground on which the pre-emptor claimed the right of prior purchase was not recognized by law as a ground for pre-emption but that in the present case the pre-emptor based his claim on the ground of his being a co-sharer with the vendor which is a ground recognized by law as a ground for pre-emption. He argued further that the plaintiff had claimed the right of prior purchase on the ground of his being a co-sharer and that he was at liberty to prove what sort of co-sharer he was. Co-sharer's right of pre-emption has been recognized in clause "secondly" where he happened to be an agnate and also in clause "fourthly" where he happened to be a mere co-sharer. The relevant part of section 14 is reproduced below:-- "Subject to the provisions of section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest -- (a)where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold; (b)when the sale is of a share out of a joint property and is not made by all the co-sharers jointly: -- firstly; in the lineal descendants of the vendor in order of succession ; secondly ; in the co-sharers, if any, who are agnates in order of succession; thirdly; in the persons, not included under firstly and secondly above, in order of succession, who but for such sale, would be on the death of the vendor entitled to inherit the land or property sold ; fourthly ; in the co-sharers . . . . ."
18. No doubt, co-sharers are covered by two clauses "secondly" and "fourthly". It is proved on the record that the plaintiff is the son of the real brother of the vendor and a co-sharer with him, therefore, his case falls under clause "secondly" and the case of the vendee falls under clause "thirdly" on the ground of his being an heir of the vendor. Learned counsel for the vendee-appellant argued that the plaintiff should not be allowed to take the benefit of clause "secondly" because he had not claimed in his plaint that he was a son of the real brother of the vendor.
19. Very knotty and difficult points of law arise in this second appeal. No exact authority has been produced to cover the facts of the case before me and I think it would be in the interest of justice that this appeal be heard by a bigger bench so that an authoritative decision could be given. I, therefore, refer the hearing of this appeal to the Full Bench.
20. The facts of the case are fully stated in the order of reference, therefore, need not be repeated here.
21. We have to decide the question whether a pre-emptor can be allowed to rely on a ground for pre- emption which is different from the one taken in the plaint. In para. 3 of the plaint the plaintiff alleged that the suit land is the joint and undivided property of the plaintiff and defendant No, 2 (vendor) on account of which the plaintiff possesses a prior right of purchase as compared to the defendant. Defendant-vendee in para. 3 of his written statement denied para. 3 of the plaint and stated that the suit land had fallen to the share of defendant-vendee since a long time as a result of a family partition. The vendee stated further in para. 3 of his written statement that the plaintiff possesses no right of prior purchase as compared to him because the defendant-vendee is the son of the sister of defendant No, 2, the vendor, and his heir under the Shariat Law. In the plaint the plaintiff claimed the right of prior purchase only on the ground of his being a co-sharer with the vendor. The learned trial Judge dismissed the plaintiff's suit on the ground that the plaintiff claims the right of prior purchase only on the ground of his being a co-sharer with the vendor whereas the vendee is a son of the sister of the vendor and, therefore, his heir under the Personal Law and an heir comes before a mere co-sharer. The learned District Judge of Muzaffarabad accepted the appeal of the pre-emptor relying on the statement of Abdullah Joo, vendor-plaintiff's witness who stated that the plaintiff was his brother's son whereas the vendee was his sister's son. The learned District Judge held that the plaintiff being a residuary of the vendor had a prior right of purchase as against the vendee who is a distant kindred under the Muhammadan Law.
22. It was argued by the learned counsel for the vendee-appellant that where a pre-emptor claims the right of prior purchase on one ground, he cannot be allowed to fall back on another ground not taken in the plaint. He cited PLD 1960 Lah. 975 and AIR 1933 Lah. 774 (1). Learned counsel for the preemptor-respondent argued that it was not necessary for the plaintiff to specify the grounds on which he based his right of prior purchase and that it was sufficient for him merely to assert in the plaint that he possesses the right of prior purchase. He drew our attention towards issue No, 1 "does the plaintiff possess a right of prior purchase of the suit land as against the vendee" and argued that the issue being as it is, he could show that he possessed the right of prior purchase irrespective of the ground taken in the plaint.
23. In PLD 1960 Lah. 975 the plaintiffs claimed a superior right of pre-emption to that possessed by vendees on the ground that the land in suit had been sold by the common ancestor of the plaintiffs to the common ancestor of the vendors--a ground which, as pointed out by the vendees in their written statement, was not recognized by law, whereupon the plaintiffs sought to amend the plaint and to substitute new grounds for the suit, viz. that they were co-sharers in the khata, as well as proprietors in the Patti. The plaintiffs applied for amendment of the plaint but the amendment was not allowed. The High Court refused to interfere with the discretion used by the trial Court. In AIR 1933 Lah. 774 (1) Dalip Singh, J. laid down that: " A pre-emption suit should state the ground on which right is claimed, and though the Court has discretion to allow amendment in all cases where it may be just and proper to do so, where the effect of the amendment of the plaint by which plaintiff seeks to change the ground on which his right is claimed is to take away from the defendant a legal right which has accrued to him by lapse of time, such amendment should not be allowed."
24. AIR 1936 Lah. 35 (Tek Chand and Currie, JJ.) is an authority for the proposition that: "Where the plaintiff states in the plaint in a pre-emption suit that he has a right of pre-emption, but does not specify the grounds on which he bases his claim, it cannot be said that the plaint does not disclose a cause of action. It is merely not sufficiently specific, but if in his replication the plaintiff clearly states that he claims the right of pre-emption by reason of his being co-sharer in the property sold and as the owner of contiguous property, the pleadings taken as a whole make the plaintiff's position quite clear; and it cannot be said that they do not disclose the plaintiff's cause of action with sufficient clearness."
25. We beg to differ with the view expressed in this judicial decision. Order VI, rule 2, C. P. C. provides that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim. Then Order VI, rule 7 provides that no pleading shall, except by way of amendment raise any new ground of claim. It is not sufficient for a pre-emptor in a pre- emption suit merely to assert that he possesses the right of prior purchase but he has to specify the ground on which he bases his right of prier purchase. Under Order VI, rule 2 the pleadings must contain the material facts on which the party pleading relies for his claim. Besides there is Order VI, rule 7 which lays down that no new ground of claim can be raised except by way of amendment. In the case before us the plaintiff had not asserted in definite terms that he possessed the right of prior purchase but he gave a specific ground on which he based his right of prior purchase. In para. 3 of the plaint it was entered that the plaintiff is a co-sharer with the vendor and on that account he possesses the right of prior purchase. When the vendee-defendant, in his written statement, denied the plaintiff's right of prior purchase and asserted that he was the son of the sister of the vendor and, therefore, his heir, under the Personal Law, the plaintiff could have put in a replication to show that he was the son of the brother of the vendor and as such he came before the sister's son even under the Muhammadan Law. But no application for amendment of the plaint was put in. Without an amendment of the plaint, no new ground of claim could be raised. Besides the unreported judgment of our High Court "Muhammad Latif Khan and others v. Karla Khan" there is also a reported case of our own High Court ; "Muhammad Hanif v. Mst. Jia Bibi and others" in which the plaintiff claimed pre-emption on the ground of his being an heir of Mst. Jia Bibi, the vendor, but subsequently he put in an application for permission to amend the plaint so as to base his case on the line of his being an heir of the husband of the vendor. It was held that even if it be taken by the plaintiff that he wants to amend his plaint so to base his claim for pre-emption on the right of his being an heir of the husband of the vendor, it would still be introducing a new case and the amendment was disallowed. AIR 1947 All. 59 is another case which has bearing on the case before us. The facts of this case were that in the suit preemption was claimed on the ground that the plaintiff was co-sharer and that the defendant was a stranger, the plaintiff wanted to amend his plaint so as to claim relief on the ground of his being a near relation of the vendor. It was held that the amendment should not be allowed as it would change the nature of the case and would prejudice the defendant. This is acase similar to the case before us.
26. Zora Singh v. Jagta Singh , is another clear authority for the proposition that a pre-emption suit should state the ground on which the right is claimed. It is not enough to plead a right of pre- emption without stating the basis of the right. In AIR 1917 Lah. 301 (2) plaintiff brought a suit for pre- emption on the ground that he was a collateral of the vendor. After issues were framed and part of the evidence had been led, he applied for leave to amend his plaint and to add an additional ground of claim, viz. that he was a land owner in the same Thulla in which the land in suit was situate and that the vendee owned no land in that Thulla. The application was placed on the record but no order was passed thereon nor were the plaint or the issues in any way altered or amended. Ultimately the Court decreed the plaintiff's claim on the ground mentioned in his application. It was held that "since the plaint was not amended in term of the plaintiff's application, and the vendee had thus no opportunity of pleading to the amended plaint and asking for a specific issue on the new ground of claim put forward by the plaintiff, the Court was not justified in giving the plaintiff a decree on that ground". The learned District Judge wrote in this case in his judgment : "Having once put in a claim to pre-emption, I think the Court should consider every ground on which the claim may be based even though it may not have been mentioned in the plaint". Shah Din, C. J. wrote that he cannot agree in this view and that the proposition is stated too broadly. As a rule, the plaintiff in a pre-emption suit must be strictly confined to the grounds of claim set forth in his plaint and that an amendment of the plaint, so far as the grounds of claim are concerned, should not be allowed except under very exceptional circumstances. In the present suit no such amendment was sought or allowed.1 2 The plaintiff cannot be allowed to succeed on a ground not taken in the plaint or in replication and which comes out for the first time in evidence. Therefore, disagreeing with the District Judge we accept the appeal with costs and set aside the judgment and decree passed by the learned District Judge. PLD 1963 Azad J& K 81 (1917) 83 P R 1917= 42 I C 263