' The judgment and decree, dated 5-3-2002 passed by the learned Additional District Judge-I, Charsadda whereby the judgment and decree for possession on the enforcement of pre-emptive rights passed by the learned trial Court in favour of the respondent was upheld, has been questioned through the instant civil revision petition.
2. The breviate of the matter is that Pervez respondent filed a preemption suit qua the suit-land measuring 4 Marlas, 7 Sarsahi detailefully incorporated in the plaint in the Court of Civil Judge, Tangi against the petitioner. The suit was hotly contested by the petitioner. The parties adduced their evidence in support of their respective contentions as they willed. The trial however, ended in decreeing the suit against the petitioner as the respondent was found to be co-sharer in Khasra numbers which covered the suit-land. The appeal filed by the petitioner was also dismissed by the learned Additional District Judge, Charsadda vide his judgment and decree, dated 5-3-2002. Both the judgments and decrees of the two Courts below are the subject of attack by way of this civil revision petition.
3. The learned counsel appearing on behalf of the petitioner has raised and argued the contention that the respondent filed the suit on two grounds, firstly the contiguity and secondly that he is participator in amenities and appendages i,e, Shafi Khalit and Shafi Jar. This fact is evident from paragraph 5 of the plaint. He maintained that the ground of co-sharership (Shafi Sharik) was never taken by the respondent. The evidence produced by the respondent was purely on the ground of cosharership in the suit-land. He urged that the respondent in his statement before the Court based his claim simply on the ground of co-sharership and he did not speak a single word about the contiguity or participation in amenities and appendages. The learned trial Court decreed the suit of the respondent on his qualification of being a co-sharer. He argued that neither the respondent could in law produce evidence on a point which was not taken by him in the plaint nor the Court could legally pass a decree on the basis of such evidence or plea which was never taken by the plaintiff. While making a reference to Shajra Aks Exh.P.W.1/2 the learned counsel argued that the respondent does not possess the qualifications claimed by him in his plaint. It was also contended that without seeking amendment in the plant, which until now has not been sought, the respondent could not adduce any evidence on the ground of co--sharership. The evidence recorded by him on this point, could not, therefore, be used against the petitioner. Reliance is placed on 1984 CLC 3379, 1991 CLC 140, 1992 CLC (SC AJ&K) 15, PLD 1997 Lah. 93 and 2002 MLD 967. In 1984 CLC 3379, it was held that in a suit for preemption based on certain preferential qualifications pre-emptor could not be allowed to add a new ground in support of his preferential right after expiry of period of limitation fixed under law for filing a pre-emption suit. The order of the Appellate Court under its revisional jurisdiction allowing amendment in the plaint was declared to be without lawful authority and was set aside in a Constitutional petition. It was ordered that the suit was to proceed on preferential qualifications already stated in the plaint. In 1991 CLC 1401 while dealing with Order 8, Rules 2 and 6 of C.P.C. It was held that no party in a suit is entitled to lead evidence in respect of a plea which was not taken in pleadings and even if evidence was led on. Such plea not taken in the pleadings, the same could not be considered as evidence in the case. In 1992 CLC 15 it was held that under Order 6, Rule 7 of the Code of Civil Procedure if a party does not take a plea in its pleadings, such a plea cannot be raised without an amendment and evidence on such a plea cannot be considered. In PLD 1997 Lah. 93 the order of the trial Court allowing amendment in the plaint was set aside on the plan that the plaintiff after about two years when valuable right in land in question had accrued to defendant made an application for adding a new ground. In that case the findings of the Appellate Court on the issue of superior right of pre-emption whereby plaintiff's such right was accepted were reversed and its judgment and decree based on such issue was set aside and the suit of the pre-emptor was dismissed. Similarly in 2002 MLD 967 it was observed that a preemptor could not add to his qualifications by amending plaint beyond period of limitation.
4. On the other hand the learned counsel for the respondent has argued that even if the ground of co-sharership was not taken in the plaint, it was available to the respondent and the evidence adduced fully supports the fact that he is co-sharer in the suit Khasra numbers, therefore, he cannot be deprived of his right. He contended that the amendment of the plaint was not necessary. He relied on the judgment of august Supreme Court titled as Budho and others v.
Ghulam Shah PLD 1963 SC 553. The judgment cited by the learned counsel cannot be of any help to the respondent. The principle laid down in the said case is that the plaintiff may be deemed to rely on all facts set forth in pleadings. In the instant case the factum of co-sharer ship was not set forth in the plaint, thus the respondent cannot get any benefit, out of the said judgment.
5. It is an admitted position that neither the ground of co-sharership was taken by the respondent in the plaint nor any application was filed for amendment of the plaint within the period of limitation to add the new ground of co-sharer ship in the plaint. The judgments cited above by the learned counsel for the petitioner make it clear that without amendment of the plaint no additional qualification can be pleaded no evidence on such qualification can be adduced. It is evident from the plaint that the respondent had received the Fard Jamabandi from the Patwari on 3-6-1997 and as such ground of co-sharership could be in his knowledge being incorporated in the Fard Jamabandi but no such ground was taken C in the plaint.
' In view of the above factual and legal position I hold that the respondent having failed to get the necessary amendment in his plaint was not entitled to any relief on a ground which was not pleaded by him. The evidence recorded on such ground also cannot be considered in his favour.
Consequently I allow this revision petition and set aside the judgments and decrees of both the Courts below being contrary to law. No order as to costs.