1. The facts giving rise to this second civil appeal are that Abdul Latif and Mohammad Sharif obtained land Khasra No, 130 measuring 7 kanals situate in village Shawai Tehsil Muzaffarabad from Imam Din (whose legal representatives respondents Nos, 3 to 9 are) and Yasin respondent No, 10 by a registered deed dated 23-4-1960 on a mortgage for 90 years. On 31-8-1960 Azad Khan instituted the suit in the Court of the Additional Sub-Judge, Muzaffarabad, for pre emption claiming that the transaction was, in fact, a sale and that the land had been, in fact, sold for Rs, 1,400 though a fictitious price of Rs, 2000 had been entered in the sale. The Additional Sub-Judge by this judgment dated 29-6-68 decreed Azad Khan's suit on the basis of the right of prior purchase on payment of Rs, 2,000. The defendants then went up in appeal before the District Judge, Muzaffarabad, who by his judgment and decree dated 30-4-70 dismissed the plaintiff's suit with costs on the ground that the ground of contiguity on which the plaintiff based his right of prior purchased did not give rise to a right of prior purchase as the property was agricultural land and not urban immovable property. The plaintiff has now come up in second appeal before this Court.
2. Additional issues were struck in the case on 12-12-61, which were as under :- (1)Was the price of the suit land fixed in good faith at Rs, 2,000 and actually paid ? 0. P. Vendees.
3. (2)In case issue No, 1 is not proved in the affirmative, what is the market value of the suit land ? 0.
4. P. Parties.
5. (3)Does the plaintiff possess a prior right of purchase as compared to defendants Nos, 1 and 2 ? 0.
6. P. D.
7. Learned counsel for the appellant shows that the learned Sub-Judge held that the plaintiff is a Khewitdar in the village and that the vendees possessed no property in the village, therefore, he decreed the plaintiff's suit. Learned counsel for the respondents controverts this assertion of the learned counsel for the appellant and says that the Sub-Judge had decreed the plaintiff's suit on the ground of contiguity. On referring to the judgment of the learned Sub-Judge I find that while discussing additional issue No, 3 the learned Sub-Judge wrote that "the plaintiff examined Amir Ullah and Munshi All Asghar Khan Patwari Halqa Gojra in which is included the village Shawai. The Patwari proved the copy of the Shajra Kishtwar and a copy of the Khasra Girdawari which are Exh. P.
8. A. and Exh. P. B. respectively. The witness further stated that the land of Mohammad Azad Khan Khasra No, 134 is contiguous to the suit land Khasra No, 130 which belonged to Imam Din and others. Amir Ullah, plaintiff's witness, also states that the land of the plaintiff is contiguous to the suit land. There is no evidence in rebuttal on behalf of the defendants. In Exh. P. A. `Aks Shajra Kishtwar' number Khasra 130, the suit land, and number Khasra 134 are shown as contiguous. Similarly in Khasra Girdawari Exh. P. B. are entered both Khasra Nos, 130 and 134, therefore, the plaintiff possessed a preferential right as compared to the vendees. The defendants have not led any evidence in rebuttal, therefore, issue No, 1 is decided in favour of the plaintiff and it is held that the plaintiff possessed a right of prior purchase as compared to defendants Nos, 1 and 2".
9. It is clear from the para cited above from the judgment of the learned trial Judge that he had decreed the plaintiff's claim of pre-emption on the ground of contiguity and not on the ground of his being an owner in the village and the defendants not being the owners in the village.
10. The trial Court as well as the lower appellate Court both held that the transaction was, in fact, a sale though clothed as a mortgage, the learned District Judge, however, accepted the appeal of the vendees and dismissed the plaintiff's suit holding that contiguity gave rise to no right of prior purchase.
11. Sh. Abdul Haiy learned counsel for the plaintiff-appellant argued that in para. 4 of the plaint he had simply asserted that he possessed a right of prior purchase as against defendants Nos, 1 and 2 and that even in para. 6 of the plaint he had asserted that the plaintiff files a suit for possession based on the right of prior purchase. He relied on an unreported Division Bench judgment of our Court Civil Appeal No, 7 of 1969 (Abdul Qadus v. Mst. Shah Mali and others), decided on 12-2-70 to which I was also a party. In this case the plaintiff had simply asserted that he possessed the right of prior purchase but had not taken any specific ground on which he based his right of prior purchase. We laid down in this Division Bench judgment that "it is, no doubt, correct that the plaintiff had not given the grounds on which he claimed the right of prior purchase but they could be remedied by asking for better particulars under the provisions of the Civil Procedure Code or by recording his statement before the striking of issues or by striking the issue. 'Does the plaintiff possess a prior right of purchase as compared to the vendee and on what grounds and to what extent?' This is not such a defect as would entail the rejection of a plaint and at the same time it cannot be said that the plaintiff has no cause of action. The cause of action is there because he has claimed a decree on the ground of right of prior purchase? Accepting the appeal we remanded the case back to the trial Court for framing issues, that arise, in the light of the pleadings of the parties. Learned counsel for the respondents cited a Full Bench judgment Civil Appeal No, 31 of 1968 (Abdul Aziz v. Abdul Razaq and others) decided on 9-11-1970 to which also I was a party. AIR 1936 Lah. 35 was cited before us in that Full Bench case which lays down 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."
12. Regarding the Lahore judgment we laid down in the Full Bench judgment that:-- "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 prior purchase. Under Order VI, rule 2 the pleadings must, contain the material facts on which the party pleadings 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 indefinite 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.
13. Besides the unreported judgment of our High Court (Mohammad Latif Khart and others v. Kala Khan) there is also a reported case of our own High Court PLD 1963 Azad J & K 81 (Mohammad 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 that the plaintiff 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."
14. If it were the case of the plaintiff-appellant that he had simply asserted in his plaint that he possessed a prior purchase right but had taken no specific ground on which he based his right of prior purchase, the Division Bench judgment 'Abdul Qadus v. Mst. Shah Mali and others' would not be of help to him because that view has practically been overruled in the Full Bench judgment 'Abdul Aziz v. Abdul Razaq and others' which is a later judgment. Besides the case of the plaintiff- appellant is that he had based his right of prior purchase on a specific ground entered in para. 3 of his plaint. It is entered in para. 3 of the plaint that defendants Nos, 1 and 2 had surreptitiously obtained from defendants Nos, 3 and 4 the suit land measuring 7 kanals No, Khasra 130 situate in village Shawai which is contiguous to the plaintiff's land Khasra No, 134 for Rs, 1,200 and in order to escape the right of prior purchase had clothed the transaction as a mortgage. Not only the plaintiff showed in para. 3 of the plaint the ground on which he bases his right of prior purchase but he also led evidence to prove that his land Khasra No, 134 was contiguous to the suit land Khasra No, 130.
15. The statements of P. Ws. Munshi Ali Asghar Khan Pat wari, Halqa Gojra and Amir Ullah are to this effect. Besides in the closing para. 9 of his plaint the plaintiff prays that a decree for possession based on the right of prior purchase for the suit land measuring 7 kanals Khasra No, 130 situate in village Shawai be passed on the ground that the suit land is contiguous to the plaintiff's land Khasra No, 134 and the plaintiff as compared to defendants Nos, 1 and 2 possesses a right of prior purchase. It cannot be said that the plaintiff had simply asserted his right of prior purchase but had taken no specific ground on which he based such right of prior purchase. The plaintiff had clearly based his right of prior purchase on the ground of contiguity of his land with the suit land and the learned trial Judge had also decreed his claim on this ground. The learned District Judge on appeal rightly held that contiguity was a ground for preemption in a case of urban immovable property but not in a case of agricultural land. Arguing his case from another aspect, the learned counsel for the plaintiff-appellant argued that it should be held that the plaintiff was an owner in the village and as such he possessed the prior right of purchase though he had not in so many words put down his claim that he is an owner in the village (Mahal). In "Mir Alam v. Azmat Ullah and others" Civil Appeal No, 6 of 1970, decided on 25-3-1971 and Civil Appeal No, 46 of 1970 (Mir Mohammad and others v. Mohammad Ali Khan), decided on 1-3-1971, I, held that where plaintiff shows in plaint that his land is continguous to the suit land or his land is encircling the suit land, it should be interpreted to mean that the plaintiff sufficiently asserts that he is an owner in the village but in both these cases the facts were that the plaintiff had, while showing that his land was contiguous to the suit land or his land was encircling the suit land, also asserted that the vendee owned no land previously in the village. The plaintiff-pre-emptor has to show and prove and additional Issue No, 3, which we are discussing, is to the same effect that the plaintiff possessed a right of prior purchase as compared to the vendees. I asked the learned counsel for the appellant to point out from the record where had he put down that the vendees were not owners in the village (Mahal) or where had he proved from the statement of any witness that the vendees were not owners in the Mahal. The learned counsel referred to the statement of Imam Din P. W. but all that this witness stated was that Abdul Latif and Mohammad Sharif defendantsvendees are residents of village Shawai but they live at a distance from the witness and that he has no knowledge whether Abdul Latif defendant owns or has not owned any land in the village. Learned counsel also referred to Exh. P. A. Shajra. Kishtwar and Exh. P. B. Khasra Girdawari but all that these two exhibits proved is that Khasra No, 130, the suit land, and Khasra No, 134, plaintiff's land are contiguous and situate in the same village Shawai.
16. Mr. G. H. Shah learned counsel for the respondents argued that the only ground of appeal taken by the plaintiff-appellant as entered in para. 2 of the grounds of appeal is that the lower Appellate Court had erred in holding that the appellant possessed no cause of action and that he has failed to prove that he has a cause of action. Learned counsel for the respondents showed that he had argued in the lower Appellate Court that the plaintiff had no cause of action but that the learned District Judge had repelled his argument and held that it cannot be said that this does not disclose the plaintiff's cause of action with sufficient clearness but the grounds and qualifications he has taken as pre-emptor are not recognized by law and he cannot succeed in a suit for pre-emption on the-grounds and qualifications mentioned in paras. 3 and 9 of the plaint on the basis of his right of prior purchase. This is given on page 5 of the learned District Judge's judgment. Learned counsel showed that the plaintiff-appellant had not challenged the findings of the Courts below on the ground that contiguity did not give rise to a right of prior purchase. As a result of the above discussion I hold that the plaintiff had not simply asserted his right of prior purchase but had based his right of prior purchase on the specific ground of contiguity of his land with the suit land. Contiguity in case of agricultural land being not a recognized ground for giving rise to a right of prior purchase, the plaintiff cannot fall back on another ground of being owner in the Mahal even though it had been proved in evidence. I may make it clear that in the present case there is no evidence on record to show that the defendants were not owners in the Mahal. The plaintiff, therefore, cannot take the benefit of the Division Bench judgment "Abdul Qadus v. Shah Mali and others". I am bound by the Full it Bench judgment "Abdul Aziz v. Abdul Razak and others" in which it has been laid down that the pre-emptor must take specific ground on which he bases his right of prior purchas and that if a ground taken in the plaint does not help him, the pre-emptor cannot fall back on another ground not specifically taken by him even though it may be proved by the evidence on record. The plaintiff had to show as is implied in additional Issue No, 3 that he possessed a prior right of purchase as compared to the vendes. If he wants to base his claim on the ground of his being owner in the Mahal, he can only establish a prior right of purchase as compared to the vendees if he proves that he is an owner in the Mahal and the vendees are not owners in the Mahal. There is no evidence on record to prove that the vendees are not owners in the Mahal. Therefore, the plaintiff's suit fails. The appeal also fails and is dismissed with costs.