1. ' This is a second appeal by Muzaffar Hussain Shah plaintiff-appellant against the judgments and decree of the Courts below by which the suit of the plaintiff-appellant was dismissed and he was thus unsuccessful in obtaining a decree of the land in suit by way of Right of Prior Purchase.
2. ' The learned counsel for the parties were heard and the perusal of the record of the case was also made accordingly.
3. ' After recording evidence of the parties and hearing their counsel, the trial Court by its judgment dated 8-7-1980 held that plaintiff had no cause of action as he was not able to prove his right of prior purchase and that it was a case of partial pre-emption as well. It is settled law that if a portion of the land sold is left out by the pre-emptor, he cannot be allowed to have the remaining portion of the land sold by way of pre-emption. Thus, the instant suit of pre-emption was also hit by doctrine of prohibiting partial pre-emption. Land measuring 22 kanals and 10 marlas under survey number 784 situate in village Bandi Sayyedian was sold alongwith the share of 'Shamlat'. The plaintiff-appellant sued for the land under survey number 784 and omitted the share in `Shamlat'. `Shamlat' bears a separate identity. Objection to the omission was taken in the very trial Court and the amendment in the written statement was allowed by the trial Court thereto and resultantly an additional issue was also struck to this effect. It was tried accordingly.
4. ' After close of the evidence of the parties, the arguments were heard on 29-4-1979. It was just after the conclusion of the arguments that an application for amendment in the plaint was moved by the plaintiff-appellant that the portion of `Shamlat' omitted should be allowed to be incorporated in the plaint so as to take the transaction pre-empted as a whole. In the application for amendment, it was prayed by the plaintiff that his application should be considered while giving judgment. The judgment was announced against the plaintiff on 30-4-1979 wherein prayer for amendment sought for supply of omission was also rejected by the trial Court. On appeal, the Court of District Judge also agreed with the findings of the trial Court. Hence this appeal.
5. ' There is no dispute over the amount of consideration paid. The plaintiff-appellant is prepared to pay the same in case he succeeds. The amount paid by the vendee, is proved to the tune of Rs, 10,000 and not to the full extent as shown in the sale-deed, viz. Rs, 12,000. Against this finding, the vendee has nothing to say because the finding was based on the very evidence of the purchaser of the land pre-empted.
6. The learned counsel for the appellant has sought amendment in the plaint before me which could of course be allowed to him even at this stage in view of authoritative decisions on the strength of which the amendment sought could be allowed to a pre-emptor in the plaint even after the expiration of the period of limitation prescribed for filing a pre-emption suit and I would have also done so, if the pre-emptor were very vigilant and cautious enough to have moved application for amendment as soon as objection to the omission was taken by the opposite-party when it could, of course, be said that it was due to inadvertence that omission occurred in the plaint in respect of the portion of `Shamlat' sold, vide AIR 1921 P C 50 and P L R (Vol. XV-40) No, 255-887 in this behalf.
7. But this is evidently not a case of inadvertence or un-intentional omission on the part of the plaintiff. The plaintiff was made aware of the omission of the portion of the land sold on 24-4-1978 but he did not care to supply omission having occurred in the plaint and it was after the lapse of a period of more than one year that application for amendment was moved by him at the end of arguments and so amendment sought for could not justifiably be allowed to him by the lower Courts beyond a period of limitation prescribed. Therefore, the doctrine of partial pre-emption was rightly applied to the instant case by the lower Courts in dismissing the suit of the plaintiff- appellant.
8. ' After carefully examining the record of the case I find that this second appeal by the plaintiff is not even competent in view of section 100 of the C. P. C. Read with section 101 of the same Code.
9. ' Both the trial Court and the lower Appellate Court after consideration of the evidence of the parties have come to the conclusion that the claimed relationship of the plaintiff with the vendor could not be proved by the pre-emptor on strength of which the right of prior purchase could be exercised by him.
10. I have gone through the evidence of the parties myself and see that plaintiff failed to establish that vendor and the pre-emptor descend from a common ancestor as claimed so as to enable the latter to have a right of prior purchase for the land in suit. The decisions arrived at by both the Courts below were neither contrary to law ; nor they have failed in considering the evidence led by the parties. The concurrent findings of fact arrived at by them even if erroneous cannot be made a subject of second appeal, and this is a very well-settled rule of law.
11. ' That being so, this appeal fails and is dismissed with costs.