JUDGMENT Deoki Nandan, J.
1. This is a plaintiff's second appeal in a suit for pre-emption. The plaintiff Qudrat Ullah and the third defdt. Smt. Akhtari Begum were said to be the co-owners of a house of which a Kotha was sold by the third defendant to defendants Nos. 1 and 2 by a sale deed dated 13th July. 1970, registered on 18th July, 1970. The plaintiff alleged that he himself had sold a half share in the house to the third defendant some three years before the suit, that is, some time in the year 1968 for Rs. 750/- that the plaintiff and the third defendant were in joint possession of the house, but for some time past the plaintiff was living at Delhi in connection with his business and that when he visited Amroha during the mango season, in 1971, he found the defendants Nos. 1 and 2 to be in occupation of a portion of the house. The plaint proceeds On to allege that the plaintiff thereupon inquired from the defendants Nos. 1 and 2 as to how they were living in the house, but he did not get any satisfactory reply, rather, he was told that he should inquire about it from the third defendant. Thereupon, the plaintiff made inquiries from the third defendant, who told him that she had sold that portion of the house to defendants Nos. 1 and 2. The plaintiff immediately made the necessary demand for pre-emption and then inquired from the defendant the circumstances in which she had sold the property without first asking him to purchase it, on which the third defendant said that she was in urgent need of Rs. 2,000/- and since he, the plaintiff, was at Delhi she could not contact him. The plaintiff alleged, that he then made the formal demand for pre-emption to the defendants in the presence of the witnesses and thereafter collected some respectable members of the community and complained to them about the conduct of the defendant. Further, according to the plaintiff, the value of the property was in no case more than Rs. 2000/- but it was wrongfully shown to have been sold for Rs. 5,500/-. This is followed by the averment that the plaintiff is always ready to have a sale executed in his favour on payment of the correct price, but the defendants were not willing, hence the suit. July 10, 1971 was alleged to be the date on which the plaintiff came to know of the sale.
2. Only defendants NOS. 1 and 2 defended the suit. They denied the plaint allegations, It was alleged that, in the sale deed dated 28th May, 1968, executed by the plaintiff in favour of the third defendant, the Kotha had been excepted and the plaintiff never had any concern with it. He was not a co-sharer. Defendant No. 3 was ill separate and exclusive possession of the Kotha and the plaintiff was not Shafi-i-Shariq in respect thereof. It was next asserted that the Kotha was purchased for cash consideration of Rs, 5,500/- and the allegation that it was not worth more than Rs. 2000/- was wholly false that the whole proceedings of the sale deed executed by the third defendant in favour of the answering defendants took place in the presence and knowledge of the plaintiff, and even possession of the property was delivered by the third defendant in the presence of the plaintiff. The answering defendants had told the plaintiff that they had purchased the property for Rs. 5,500/-on which the plaintiff had retorted that they had purchased it dear. The answering defendants stated that the necessary demands for pre-emption were never made, and they also denied the rest of the allegations of the plaintiff. The plea of estoppel was also raised. The following were the issues on which the parties went to trial:--
1. Whether the plaintiff is a co-sharer in the suit property?
2. Whether the plaintiff made de-mads as alleged?
3. Whether the suit is barred by estoppel?
4. To what relief, if any, is the plaintiff entitled?
On the first issue the trial court held that the plaintiff is not a co-sharer in the house in suit, on issue no. 2, that the plaintiff did not make any demand for pre-emption; on issue No. 3, that the suit was barred by estoppel, and on issue No. 4, that the plaintiff was not entitled to the relief claimed. With these findings the trial court dismissed the suit.
3. On appeal by the plaintiff the lower appellate court held that the plaintiff was a co-sharer in the house, that the suit was not barred by estoppel, but on the finding that the necessary demands, namely, the Talab-i-mowasibat and Talab-i-Ishad had not been made, it confirmed the decree of the trial court dismissing the suit.
Mr. M. A. Qadeer learned counsel for the plaintiff-appellant, urged that the lower appellate court was in error in having dismissed the suit on the ground that the demands for pre-emption required to be made under the rules of Muhammadan Law were not made. He relied upon the decision of a Division Bench of this Court in Zamiar Ahmed, v. Haidar Nazar, (AIR 1952 All 541) for the proposition that the Muhammadan Law for pre-emption could not be applied as such even where the parties to a transaction were Muslims. It is the law of pre-emption as adopted by custom of the place which is enforced by the Courts and Zamiar Ahmed's case (supra) shows that the custom of preemption was prevalent within the Municipal limits of Amroha, but it did not require the making of any demands. The custom so recognized in Zamiar Ahmed's case (supra) was found to be recorded in the wazib-ul-arz in the following terms:--
"If any co-sharer wishes to transfer his proprietary interest either by sale or by mortgage, he will first offer it to a co-sharer who is a relation in the order of nearness of relationship, and on his refusal to purchase, to other co-sharers in the same thok, and on their refusal to the co-sharers in the other thoks, or strangers."
According to the Division Bench of this Court:-- (at p. 543) "The custom is complete in itself and can be enforced in the form in which it is recorded in the wajib-ul-arz. The fact that it does not make any mention of the demands prescribed by the Muhammadan law, shows that making of the demands is not necessary."
4. As to the applicability of the Muslim Law of pre-emption as the personal law of the parties, in case they happen to be Muhammadans, the Division Bench observed as follows :-- (at P. 542), "The power of Courts to apply Muhammadan law to Muhammadans is derived from and regulated partly by Statutes of the Imperial parliament read with Article 225 of the Constitution of India but mostly by Indian legislation..... Under the Bengal, Agra and Assam Civil Courts Act (XII (12) of 1887), Civil Courts are directed by Section 37 of the Act to decide all questions relating to succession, inheritance, marriage or any religious usage or institution by the Muhammadan law in cases where the parties are Muhammadans, except in so far as such law has, by legislative enactment, been altered or abolished. In cases not mentioned above nor provided for by any other law for the time being in force, the decision is to be according to justice, equity and good conscience.
"The Shariat Act (XXVI (26) of 1937)..... provides that :
"Where the parties are Muslims, the Muslim Personal law shall be applied throughout India in the cases mentioned in Section 2 of the Act."
5. The Bench noticed the provisions of Section 2 of the Shariat Act as also Section 3 thereof and proceeded to observe (at p. 542):--
"The law relating to pre-emption, therefore, is not directed by any law to be applied to Muhammadans. It is applied on the ground of justice, equity and good conscience. But this rule is subject to the overriding principle that custom is a rule of law in the absence of a statutory provision to the contrary. Where, therefore, there is a custom relating to pre-emption, the Muhammadan rule of pre-emption law is not to be applied even on the ground of Justice, equity and good conscience. The custom may incorporate into itself the incidents of the Muhammadan Law of pre-emption and in that case the Muhammadan Law of pre-emption would be applied, not by reason of its own force but by reason of the force of the custom. Where it is proved or admitted that there is a custom of pre-emption and nothing else is known or, in other words, the incidents of the custom are not known, the Courts have raised a presumption that the incidents are the incidents prescribed by Muhammadan Law on the ground that the law of pre-emption is a special contribution of the Muhammadan Law to this country..... But where the incidents of custom are known, no incidents prescribed by the Muhammadan law can be deemed to be part of the custom, even though they may not be inconsistent with the known incidents of the custom. This is so because when the custom enunciates the incidents for its enforcement and applicability, the presumption is that it is complete by itself and does not stand in need of being limited or restricted by any other incident not expressly forming part of the custom. The addition of any other incident will necessarily limit the operation of the custom and that would, therefore, be deemed to be repugnant to it."
6. It was for these reasons that the Division Bench held that although the custom of pre-emption applied within the Municipal limits of Amroha as a custom recorded in the wajib-ul-arz, since the terms of the custom so recorded did not require the making of any demand for pre-emption as prescribed by Muhammadan Law, the requirement of making demands could not be said to be necessary.
7. There would have been no difficulty in straightway applying the rule so laid down by the Division Bench to the present case, but Sri G. P. Mathur, the learned counsel for the defendant-respondents, drew my attention to decision of Hon'ble Bind Basni Prasad J. in Gokal v. Zarif Husain, (AIR 1952 All 148), wherein it was held that the word 'haqiyat' does not include an abadi site, That case arose from Sambhal which is also in the district of Moradabad, and he urged that the specification of proprietary interest in the wajib-ul-arz necessarily referred to proprietary interest of a zamindar and was the same thing as 'haqiyat' which was the subject matter of interpretation in Gokal's case (supra). The learned counsel argued that the property sold in the present case was house property and there was no sale of any proprietary interest in land and hence on the principles laid down by the Division Bench in Zamiar Ahmad's case (AIR 1952 All 541) (supra), there could be no question of pre-emption even if the parties to the transaction were Muslims, for, the only custom of pre-emption prevalent in the town of Amroha that was noticed and recognized by the Division Bench in that case related only to proprietary interest in land, which, as explained above, could not include any abadi site or house property. The suit was. it was urged, liable to be dismissed in its entirety.
8. The learned counsel for the defendant-respondents further argued that it was not the case of the plaintiff that the law of pre-emption, which he was seeking to enforce, did not require the making of the demands, rather his case was that he made the demands, both Talab-i-Mowasibat and Talab-i-Ishhad. He could not now be permitted to say that the making of the demands was not necessary, after it was found that his case of having made the demands was false. Another argument raised by the learned counsel was based on the authority of the Supreme Court in Bishan Singh v. Khazan Singh. (AIR 1958 SC 838), wherein the law was summarised thus (at p. 841):
"(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right, (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold, (3) It is a right of substitution but not of re-purchase i. e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold, (5) Preference being essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place, (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place,"
9. The learned counsel urged that the plaintiff never claimed substitution for the purchaser on payment of the consideration of Rs. 5,500/- that had been paid to him. He wanted, instead to buy the property for Rs. 2000/-, and asserted that the maximum reasonable and correct price of the property, sought to be pre-empted, was only Rs. 2,000/- and that he was always ready and willing to buy the property on payment of its 'correct price.' The learned counsel for the defendant-respondents urged that, if, what the plaintiff so stated in the plaint, was true, he wanted to have the property to him for Rs. 2000/- only, and that too, even after becoming aware that the property had ostensibly been sold for Rs. 5,500/-. This showed that the plaintiff was not seeking to enforce any right of pre-emption, but was seeking to enforce some kind of an imaginary right to purchase the property for an imaginary 'correct price'. The fact that the relief claimed in the plaint was for pre-emption could not advance the plaintiff's case any further, for, the relief must accord with the cause of action pleaded, and in case it does not, it is liable to be refused on this ground alone.
10. The learned counsel for the defendant-respondents also attacked the findings of the lower appellate court that the plaintiff was a co-sharer in the house, and that the suit was not barred by estoppel.
11. Having heard the learned counsel for the parties, I find that this appeal cannot succeed. The two decisions of this Court in Zamiar Ahmed v. Haidar Nazar, (AIR 1952 All 541) and in Gokal v. Zarif Husain (AIR 1952 All 148), when read together show that in case of proprietary interest in revenue paying land, that is, in the case of 'haqiyat,' the custom of pre-emption prevalent in the town of Amroha did not require the making of demands required to be made under the rules of Muslim Law and that it was this customary law which could be enforced even in case where all the concerned parties were Muslims. It is not known as to what were the incidents of the customary law of preemption applicable to house property or property other than 'haqiyat' within the town of Amroha. The plaint does not specify the existence of or the terms of any such custom. Assuming there was a custom of pre-emption and even assuming that it was so well recognized that it was not necessary to plead its existence, the fact remains that the plaint does not proceed on the footing that the making of demands was not necessary. The plaint rather proceeds on the basis that the making of demands was necessary and they were made. That being so the plaintiff cannot be permitted to plead at the second appellate stage that the law of pre-emption relied upon by him did not require the making of any demand.
12. The finding of the lower appellate court that the demands were not made is a finding of fact and it could not be established that it suffers from any error of law. It is based on the appraisal of the evidence on record, and it appears to me that finding is, in all the circumstances of the case, appropriate and correct.
13. In view of this position, no other point survives for consideration and it is unnecessary to deal with the other contentions raised by the learned counsel for the defendant-respondents.