JUDGMENT : This is an appeal by Abdul Shakoor and Babulal defendants, against the judgment of Shri B.K. Puranik. Second Additional District Judge, Bhopal allowing the appeal of Misrilal, plaintiff, and thereby decreeing his suit for specific performance of the contract between Abdul Shakoor, defendant No. I, and Misrilal, plaintiff, for the sale of the Khander land. The contract for the sale is contained in the document dated 21-7-1950 whereby Abdul Shakoor agreed to sell this land to Misrilal for a sum of Rs. 400/-, out of which Rs. 50/- was paid in advance. It was also agreed upon that the sale-deed would be registered within one week. Abdul Shakoor later on sold the land to Babulal defendant No. 2, through a sale-deed, copy of which is on record. When Abdul Shakoor failed to execute the sale-deed in favour of Misrilal, the latter instituted the present suit for specific performance of the contract and in the alternative, for pre-emption of the said property sold to Babulal, defendant No. 2. 2. The suit was contested by both the defendants and their case in brief is that the plaintiff was at the most entitled to the refund of the advance and to a penalty of Rs. 50/- as agreed upon in the agreement dated 21-7-1950; and that defendant No. 2 had a preferential right of preemption with the result that the plaintiff was not entitled to either of the reliefs sought for. 3. The trial Court dismissed the suit in full; but in appeal it was held that the plaintiff had the same right of pre-emption as defendant No. 2 and that the plaintiff had the right to secure the specific performance of the contract. His suit was thus decreed in full. Both Abdul Shakoor and Babulal have come up in appeal against this order. 4. The appellate Court was of the opinion that both the plaintiff and defendant No. 2 belonged to the same Category No. 6 of S. 11 of the Bhopal Pre-emption Act and consequently, it was wrong to disallow the prayer for specific performance of the contract for the reason that the defendant No. 2 had a preferential right of pre-emption. 4. The appellate Court was of the opinion that both the plaintiff and defendant No. 2 belonged to the same Category No. 6 of S. 11 of the Bhopal Pre-emption Act and consequently, it was wrong to disallow the prayer for specific performance of the contract for the reason that the defendant No. 2 had a preferential right of pre-emption. The learned Judge was apparently of the opinion that the right of easement mentioned in Category 5 of S. 11 was one which had become obsolete and not a right which had been enjoyed for a limited period and did not confer any absolute rights in the dominant owner. This cannot be said to be the correct interpretation of S. 11. I must admit that it is with some hesitation that I am arriving at this opinion. The difficulty in the interpretation of S. 11 has arisen on account of the use of Urdu words which can have meanings more than one. In fact the word (Hasil) or words derived therefrom have been used in the various enactments of the then State of Bhopal in different ways. One opinion which could be formed from the word (Hasil), and the words derived therefrom, can be that, the right must have matured into finality, that is, the dominant owner has acquired by prescription or otherwise the alleged right of easement. The other meaning of the word "Hasil" can be none other than mere 'enjoyment'. 5. The actual words used in Category 5 of S. 11 of the Bhopal Pre-emption Act are (Haq Ashayasha Hasil Ho)'. Similar words have been used in S. 15 of the Bhopal Easement Act, though in the marginal note the word (Husul) has been written for 'acquisition'. Section 15 lays down when the right of easement becomes absolute, that is, (Katai); and in Clause 1 thereof it is mentioned that if the right of easement has been enjoyed " (Hasil Hota Raha Ho) peacefully for a period of 20 years; such right would become absolute. The use of words and in this Clause would, therefore, suggest that the correct translation of these words would be 'enjoyment of the right of easement'. The use of words and in this Clause would, therefore, suggest that the correct translation of these words would be 'enjoyment of the right of easement'. Similar words used in Category 5 of S. 11 of the Bhopal Pre-emption Act can, therefore, be given the same meaning and in these circumstances, it can be inferred that if some one had been enjoying a right of easement over the land or property subject to sale, that person will have a better claim for pre-emption than one whose property simply abuts the other. A person enjoying the right of easement will come in Category 5, while the other person in Category 6. Admittedly, the water from the house of defendant No. 2 falls on the disputed land and he is enjoying such a right of easement. . Defendant No. 2 would thus be placed in Category 5, while the plaintiff in Category 6 6. Even if S. 11 of the Bhopal Pre-emption Act is interpreted otherwise, the defendant No. 2 will still have a preferential right of pre-emption, his case falling in Category 5, while that of the plaintiff in Category 6. In paragraph 15 of the written-statement the defendant No. 2 clearly mentioned that he had a preferential right of pre-emption in view of the fact that the water from, his house had been falling on the land from times immemorial (Hamesha Se). The plaintiff also admitted this fact in the cross-examination, though he added that the Rasta on which the water fell was in the Khander land in dispute. It is true that the defendants did not make such an assertion in their statements on oath but it was not at all necessary for the defendants to lead evidence on the period of enjoyment of the right of easement when the period had already been admitted by the plaintiff himself. It was urged before me that by the word (Hamesha) what the plaintiff meant was the period for which he knew of the existence of his right and this period could easily be less than 20 years. The word (Hamesha) cannot be given such a meaning, It would ordinarily mean an indefinitely long period or from times immemorial. In case it was felt that the plaintiff had made an ambiguous statement, it was the duty of the plaintiff's counsel to clarify the point by re-examining him. The word (Hamesha) cannot be given such a meaning, It would ordinarily mean an indefinitely long period or from times immemorial. In case it was felt that the plaintiff had made an ambiguous statement, it was the duty of the plaintiff's counsel to clarify the point by re-examining him. When the plaintiff was not re-examined, no other inference can be drawn except that the plaintiff and his Counsel accepted the truth of the admission and the contention now put forward is a mere after-thought. Thus the easement had been enjoyed for a long period i.e., from times immemorial and on the doctrine of lost grant defendant No. 2 would be deemed to have acquired a right of easement independently of the acquisition by prescription under S. 15 of the Bhopal Easement Act. Thus the right of pre-emption of defendant No. 2 would fall in Category 5 and, in the eye of law he would possess a preferential right of pre-emption over the plaintiff. 7. In this connection it was urged on behalf of the plaintiff that in his written-statement the defendant No. 2 did not give the full particulars of the right of easement out had merely alleged the right of easement generally, and consequently on the basis of such a pleading he could not be permitted to urge that the right of easement had, in fact, been acquired by him by prescription or otherwise. It is true that while taking up the plea of easement, a party should clearly indicate in the written-statement all the facts connected with such a plea. For example, he should give the nature of the easement claimed or acquired, how it arose and how was such a right acquired whether by a grant actual or lost or by prescription or otherwise. The period for which the easement was enjoyed has also to be given and also whether the right was exercised within two years of the suit without interruption and as of right. In the present case all these facts constituting the acquisition of a right of easement were not clearly given in the written-statement but the allegation was made generally with reference to S. 11 of the Bhopal Pre-emption Act. In the present case all these facts constituting the acquisition of a right of easement were not clearly given in the written-statement but the allegation was made generally with reference to S. 11 of the Bhopal Pre-emption Act. Pleadings in India have not always been strictly construed keeping in mind that many Vakils in the subordinate Courts are not well acquainted with the law of pleadings and do not have such an experience as is expected of the Bar in England. In Bhopal, particularly in the year 1950, the Bar was inexperienced and it cannot even be said at present that all the members of the Bar are now well conversant with the law of pleadings. Very often material points are not asserted in the pleadings, and if the law is made applicable with the same strictness as in England or other parts of India, a person with a true case may lose on account of the mistake of his counsel. Consequently, therefore, if the pleading hag been loosely drafted but it clearly comes out from the record what the actual plea was, it will not be proper to disallow that part of the case, unless, of course, the other party had been prejudiced or was taken by surprise. Even in such, a case the proper order would be to allow the recording of additional evidence after framing, proper issues. 8. In the present case defendant No. 2 had referred to the discharge of the water from his house on the disputed land for a very long period and also added that for this reason he had a preferential right of pre-emption. It will, therefore, be clear that what the defendant had in reality meant was that he was enjoying this right of easement for a very long period and on the doctrine of lost grant he acquired the right of easement. This plea could also be that the right of easement was being enjoyed as such for a long period i.e., for a period exceeding 20 years. Prom whatever aspect the written-statement is looked into, it must be held that the case of the defendant No. 2 from the beginning was that he had acquired a right of easement. This plea could also be that the right of easement was being enjoyed as such for a long period i.e., for a period exceeding 20 years. Prom whatever aspect the written-statement is looked into, it must be held that the case of the defendant No. 2 from the beginning was that he had acquired a right of easement. The wordings of para 15 of the written-statement are such that the plaintiff also could not be-in the dark about the reasons why the defendant No. 2 was claiming to have a preferential right of pre-emption. In these circumstances the plaintiff could not be prejudiced if the pleadings are to be construed liberally. A similar view-was taken in - 'Manmatha Nath v. Rakhal Chandra Mandal', 1933 Cal 215 (AIR V 20) (A). 9. When the defendant No. 2 has a preferential right of pre-emption, the plaintiff's suit for pre-emption cannot succeed and even the relief for specific performance of the contract will have to be disallowed. This relief is a discretionary one and can be refused in special case, though, of course, the discretion will have to be exercised on judicial principles and not arbitrarily. In case the plaintiff's suit for specific performance of the contract is decreed, defendant No. 2 will be able to dispossess him by claiming pre-emption over the property and will get the property for the same value as would be paid by the plaintiff. Thus if the suit is decreed, it will lead to further litigation without any benefit to the plaintiff. The plaintiff's suit was, therefore, liable to dismissal. 10. The appeal, therefore, succeeds and is hereby allowed with costs of all the Courts, and the decree of the first appellate Court is set aside and that of the trial Court is restored. The result, therefore, is that the plaintiff's suit stands dismissed with costs of all the three courts. Appeal allowed.