MUHAMMAD YOUSAF KHAN Versus MUHAMMAD ASLAM

ORDER

This appeal arises out of the, following facts:

The appellant Muhammad Yousaf brought a pre-emption suit against respondents Muhammad 'Aslam and another in the Court of Civil Judge, Hajira regarding Survey Nos.82, 86, 87 and 84. It was averred in the plaint that vendor Muhammad Farooq transferred his share in the aforesaid survey numbers through a sale-deed dated 2-1-1992. in lieu of Rs:50,000, however, in order to deprive the plaintiff from his right of prior purchase, the vendees managed to enter a fake amount in the sum of Rs.1,60,000 in the sale-deed. The ground on which the pre-emptor brought his claim are enumerated in clause (3) of, his plaint which reads as under:--

2. The trial Court after due process of law decreed the suit in favour of plaintiff (appellant herein). Feeling aggrieved by the judgment and decree of the trial Court, 'an -appeal was brought before District Judge, Poonch. The said Court allowed the appeal and reversed the findings of the trial Court. Per judgment of-the 1st Appellate Court, the pre-emption suit was to be decided in the light of old law governing pre-emption matters and the trial, Court by deciding the present suit in the light of amended law pertaining to pre-emption matters fell in, error. The appellant has challenged the judgment and decree of the District Judge through the present appeal.

3. During pendency of this appeal, an application seeking amendment in clause (3) of the plaint has been moved-in the following terms:

4. The learned counsel for the parties were asked to address the arguments on the merits of the appeal alongwith plea regarding amendment in the plaint. Both the learned counsel press into service only one point 'i.e. whether the present suit was to be decided in presence of old law or in the light of amended law pertaining to pre-emption matters. The learned counsel for the appellant accepted that the suit has been rightly decided in the light of old law governing pre-emption matters however, he questioned the validity of the judgment and decree of the 1 st Appellate Court on the ground that learned District Judge fell in error while appreciating clause (3) of the plaint which showed that the plaintiff-appellant had already pleaded himself as one of the owners of the "Mohal" . wherein the suit-land is situated. According to the learned counsel, the plaintiff-appellant was entitled to a decree in his favour even in the light of old law at the time of institution of the suit. Regarding amendment in the plaint, the learned counsel argued that he wanted to insert the word "Mohal" as to clarify the position taken in clause (3) of the plaint. It was further submitted that the evidence in shape of Revenue Record appended with, the plaint suffices to say that the plaintiff-pre-emptor was one of the owners in the "Mohal", therefore, it was in the interest of justice to allow amendment. The learned counsel while arguing his case placed reliance on Noor Muhammad's case. PLD 1987 Lah. 473 and contended that the Court might in special circumstances allow amendment in the plaint even if it had the effect of depriving defendant of his right to plead limitation.

5. Conversely, it was argued that the pre-emptor based his claim being Shafi Shareek, Shafi Khaleet and Shafi Jar meaning thereby that he brought his suit on the ground recognized by the amended law only. According to the learned counsel, the amendment sought through the application if allowed would amount to add a new ground of attack recognized by old law therefore, the same was not permissible after expiry of time limit provided for pre-emption suit. The learned counsel in order to support his claim relied upon following case-law:--

(1.) 1999 YLR 1308, (2) PLD 1971 (Azad J&K) 49, (3) 1996 CLC 480 and (4) PLD 1987 (Azad J&K) 170.

In Muhammad Khan's case 1999 YLR 1308, it was held that mere fact the property owned by the plaintiff was adjacent to the property sold is not sufficient to hold that the said lands are situated in the same "Mohal". It is necessary for the plaintiff to prove that the land owned by him and assessed to land revenue treating the same as one entity or unit etc. namely "Mauza", "village", "estate" or "Mohal".

In Azad Khan's case PLD 1971 (Azad J&K) 49, it was observed by the learned then Chief Justice that if a plaintiff fails on the ground of contiguity pleaded by him, he cannot fall back upon another ground of being owner in Mohal not specifically taken by him in plaint even though it had been proved in evidence. The plaintiff-pre-emptor must take specific ground on which he bases his right of prior purchase and that if a ground taken in the plaint does not help the pre-emptor cannot fall back on another ground not specifically taken by him even though it might be proved by the evidence on record.

In Muhammad Iqbal's case PLD 1987 (Azad J&K), 170, that when a pre-emptor instituted a suit on the basis of specific qualification and subsequently on expiry of limitation, he desired amendment to add another qualification for successful pre-emotion, the amendment would be denied.

6. After having brief survey of the case-law cited at Bar, the record made available to this Court was examined carefully. As it is evident from clause (e) of the plaint itself, the pre-emptor is shown to have based his claim on three qualifications namely, Shafi Shareek, Shafi Khaleet and Shafi Jar. The said qualifications are recognized only under the amended law of pre-emotion which came in force in Azad Jammu and Kashmir on 13-3-1993 whereas the present suit has been brought in the Court on 18-1-1993. It clearly means that the pre-emotion suit was instituted before the enforcement of amended law. It is well-settled principle of law that pending pre-emotion cases are to be decided in the light of old law governing pre-emotion matters. This position of law, as stated earlier, has not been disputed by the learned counsel for the parties, therefore, the only controversy between the parties left to be resolved is whether the pre-emptor could be given benefit' of old law in the light of his pleadings. The pleadings are always looked into as a whole and by doing so, the real controversy is to be ascertained. The plaint when seen as a whole especially clause (3) suggests to say that the plaintiff-pre-emptor is claiming his right of prior purchase under the amended law of pre-emotion and that is why he did not challenge the findings of the trial Court when his suit was decreed in his favour in the light of amended law. However, when his suit was disallowed by the 1st Appellate Court and it was observed by the said Court that his suit was required to be adjudicated upon in the light of old law, he by sensing his ultimate failure has resorted to amendment in the plaint by inserting word "Mohal" in it. Therefore, in the estimation-of this Court, if the proposed amendment is allowed after expiry of limitation it would mean to add or plead a fresh ground not' specifically taken in the pleadings thus, it would certainly change cause of action which is not permissible under law. In view of this matter, the amendment in application is disallowed. As stated earlier, the parties are in agreement that the pre emption cases before coming into force the amended law pertaining to pre-emotion matters are to be decided in the light of old law, thus, the qualifications-on the basis of which the present suit has been brought are not recognized by the old law. Resultantly, the suit by the plaintiff-pre emptor has rightly been disallowed by the 1st Appellate Court and the appeal being without substance is hereby dismissed.

H.B.T./64/AJ&K H.C. Appeal dismissed.