1980 PLP 1274 (CLC)

3. As the appellants herein, who were defendants in the original suit, were not satisfied with the judgment and decree of the first appellate Court, they have come up in second appeal to this Court.

4. A perusal of the plaint would show that the surviving plaintiffs had asked for possession of 3/4th share in the disputed land while the outgoing plaintiff, who turned out to be a stranger, had prayed for possession of the remaining 1,/4th of it. Learned counsel for the appellants did not assail the verdict of the learned Additional District. Judge that after the name of the stranger plaintiff was removed from the list of the plaintiffs, the defect in the suit was remedied. He however, maintained that since the surviving plaintiffs had asked for only 3/4th share in the land in question, the learned Additional District Judge had erred in allowing them to get the whole of it. He relied on Fazal Din and another v. Milkha Singh (145 1 C 182) to support his plea.

5. On the other hand, learned counsel for the surviving plaintiffs, who are respondents herein, argued that besides claiming the disputed land in the aforesaid shares, it was prayed by them that they be allowed such other relief as could, in the interest of justice, be granted to them and, therefore, the learned Additional District Judge was right in passing a decree in regard to the entire land in their favour because their right of pre-emption extended to the whole of the land. In this connection, he placed reliance on Mehr Allah Ditta and another v. Muhammad Ali and another (P L D 1972 S C 59), Raja and others v. Hussain and others (P L D 1957 Lah. 52), Khisro Nawaz v. Khanimidlah and others (P L D 1962 Pesh. 124) and The Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid-ud-Daula and others (P L D 1961 Lah. 993).

6. The case of Fazal Din and another, cited by the learned counsel for the appellants; related to a suit far possession of certain land. It was filed by a mortgagee. The trial Court had passed a decree, in favour of the plaintiff, for possession of 202 kanals and 14 marlas of land. On appeal, however, the District Judge reduced the area to 75 kunals and 16 marlas. . When the matter went up before the High Court, it was objected that the learned District Judge had made a mistake in allowing the whole of 6 kanals and 2 marlas comprised in Khasra No. 2968 to be taken possession of by the mortagagee as in his plaint he only asked for 1/4th of it. The objection was sustained by the High Court with the following observations :-- "This is correct and the appeal must be technically accepted and the area decreed reduced to 71 kanals 41 marlns, i.e Khasra No. 2968 is not decreed in whole but only as regards a I share in it. This relief the appellants could have got without coming here as it was merely a clerical error which could have been corrected by the learned District Judge." Detailed facts relating to the aforesaid objection have not been spelt out in the report nor there is anything to show that the plaintiff was entitled to get the entire land of the Khasra number in question but he was not allowed to have it simply for the reason that he asked for only 1/4th of it. There is also nothing to indicate as to whether he had made a prayer, in general terms, that he may be allowed any other relief to which he may be found entitled: Moreover, it is not a pre-emption ease. In the circumstances, the case of Fazal Din and others is not of much help in resolving controversy involved in the present case.

7. Now, I advert to the authorities relied upon by the learned counsel for the respondents. In the case of Raja and others it was ruled that the right of a plaintiff pre-emptor is not lost if in a suit to enforce his right of pre-emption, he joins with his a stranger as the mistake in joining a stranger as a co-plaintiff is procedural and can be remedied by amendment, under Order I, rule 10 of the Code of Civil Procedure, even at the stage of appeal. It was further held that if such plaintiffs insist in getting the relief jointly then no relief could be granted at all. This view was approved by their Lordships of the Supreme Court while deciding the case of Mehr Allah Ditta and another.

8. In the case of Khisro Nawaz, the plaintiff had prayed for possession of a house claiming to be its owner. The trial Court had found that he was owner of the house and, therefore, his suit was decreed by that Court. On appeal, however, the Additional District Judge reversed the finding of the learned trial Court. The conclusion reached by him was that the site underneath the house belonged to the plaintiff but its super structure had been raised by the defendant. It was, therefore, held by the learned Additional District Judge that the suit for possession of the house was incompetent and liable to be dismissed. Consequently, the suit was thrown out by him. The view taken by the learned Additional District Judge was, however, disapproved by the High Court in the following words :- "The learned lower appellate Court has also held that the plaintiff's suit was incompetent, firstly, because being owner of the site, and not of the super structure, be should have asked for the possession of the site only, or for the possession of the site as well as of the house on payment of the value of the superstructure of the house. The course suggested by the learned Additional District Judge may have been more appropriate as far as the form of the suit was concerned, but the wrong frame of the suit should not, in our view, disentitle the plaintiff to the relief which is otherwise clearly admissible, to him, or which we can grant to him in the interest of justice under Order VII, rule 7 of the Civil Procedure Code."

9. The opinion delivered in the case of The Chief Administrator of Auqaf, West Pakistan, Lahore was that if certain relief is not claimed but is granted by the Court, it will not be set aside if there is material on the record justifying the relief. 10. 1n view of what has been ruled in the cases of Mehr Allah Ditta and another and Raja and others it was conceded by the learned counsel for the appellants that if the surviving plaintiffs had not claimed a specific share in the disputed land they could be allowed to get the whole of the land in dispute after they had parted with their co-plaintiff who was a stranger. He, however, urged that since the surviving plaintiffs had specifically claimed 3/4th share in the land, they could not be awarded the whole of it.

11. I am not inclined to agree with the learned counsel for the appellants. In view of the dictum in the case of Raja and others, the procedural defect in the respondent's suit had been remedied with the: omission of the name of stranger plaintiff from the list of plaintiffs and, therefore, after` the removal of that defect as aforesaid, the surviving plaintiffs had not to suffer in any way on account of joining with them a' stranger as co-plaintiff except in the event of their insisting in having the relief together with the stranger. There is, however, nothing on the record to show that after the withdrawal of the stranger from the scene, they on the stranger had insisted in getting the relief jointly. Therefore, the surviving plaintiffs were entitled to the same relief as they could get if_ they had not associated with them a stranger as co-plaintiff. It is not disputed that if only the surviving plaintiffs had filed the suit they could have the whole of the disputed land because their right of pre-emption extended to the entire land. It would, therefore, follow that after the withdrawal of the stranger from the array of plaintiffs the surviving plain tiffs were entitled to get the whole of the disputed land.

12. As for the prayer of the surviving plaintiffs, in the suit as origi nally instituted. that they may be awarded 3/4th of the disputed land, that prayer was made by them for the reason-that they wanted 1/4th of it to go to their plaintiff, who has been found to be a stranger. Moreover, the aforesaid relief was not the only relief asked for by them inasmuch as in that very suit they had also prayed that they may be allowed any other relief to which they were found entitled. In view of the new complexion assumed by their suit after the withdrawal of the transfer plaintiff, there is none to claim 1/4th share in the land which was left out for him. There fore, on the score of their prayer that they may be allowed such other relief as could be justifiably granted to them, they can get the entire land in question because they have right of pre-emption to respect of the whole of it, Even if the surviving plaintiffs had not asked for the general relief as aforesaid, they could, in view of the provisions of Order VII, rule '7 of Civil Procedure Code and the observations made in the cases of Khisro Nawaz and the Chief Administrator of Auqaf, West Pakistan, Lahore be allowed to have the entire land.

13. It is also to be noted that if in their suit, giving rise to the present appeal, the plaintiffs had not specified their shares, even then the outgoing plaintiff would have, in case of their success, shared the disputed land with the surviving plaintiffs. If by claiming the land without specifying their share therein, the surviving plaintiffs could get the whole of the land after the withdrawal of the stranger plaintiff, there appears to be no justi fication for not letting them have the entire land just for the reason that in the plaint they had specified their own share as well as that of the outgoing plaintiff.

14. In view of the foregoing discussion, I see nothing wrong with the judgment and decree of the first appellate Court by which the surviving plaintiffs (respondents Nos. I to 5) have been awarded the whole of the land in question. The appeal, therefore, fails and is dismissed with costs. S. Q. Appeal dismissed.