1. ' CH. RAHIM DAD KHAN, C. J.-This appeal arises from a pre-emption suit instituted by the appellant, Fazal Dad, against Muhammad Azam and Daswandi respondents (vendees) to pre-empt the sale of land, measuring 1 kanal 4 marlas, made by Fazal Karim son of Sher in their favour by a sale-deed executed on 6-7-1966 but registered on 11-7-1966. The right of prior purchase was claimed by the pre-emptor on the ground that he was the owner of Mahal as well as collateral of the vendor. The vendee contested the claim on the basis of limitation as the suit was instituted one year after delivery of possession on 6th July, 1966, the date of the execution of the sale-deed though it was registered subsequently on 11-7-1966. The claim of the pre-emptor that he was collateral was denied and it was also asserted that Muhammad Azam, one of the vendees, being owner of the Mahal was clothed with equal rights of pre-emption. The trial Court came to the conclusion that the pre-emptor was not a collateral and that though one of the vendees, namely, Muhammad Azam who was clothed with equal right had lost his right of prior purchase by joining a stranger in the sale-deed. Regarding the question of limitation it was held that the suit is within time because the terminus quo was the date of registration and not the date of execution taking place earlier.
2. Consequently, the suit of the plaintiff was decreed on payment of Rs, 2,000, the sale consideration.
3. On appeal by the vendee the first Appellate Court (District Judge, Mirpur) partially accented the appeal holding the sale as divisible. ' The appeal to the extent of the share of the land purchased by Daswa ndi, admittedly a stranger, was dismissed. On second appeals-one filed by pre-emptor and the other by one of the vendees, namely Daswandi, the suit of the appellant (pre-emptor) was dismissed as being time-barred. According to Muhammad Azam vendee the possession over the property, purchased by the vendees, was obtained by them a day prior to the execution of the sale-deed on 6-7-1966. This statement of Muhammad Azam vendee is on the original file. The document was executed on 6-7-1966 which was registered on 11-7-1966.
4. ' Following two points for consideration arise in this appeal : (i) what is the terminus quo in the instant suit for pre-emption-the date of possession or the date of registration ? And (ii) whether one of the vendees, who has equal right, can resist the claim of pre-emptor as regard to his share of purchase when he has joined a stranger with himself ? #TBS words as follows : #TBE As regards the terminus quo for a pre-emption suit in case of a sale, which is executed on certain date but is registered subsequently, it is quite plain from the provisions of section 4 of the Right of Prior Purchase Act that 'right of prior purchase is the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sale or of foreclosures of the right to redeem such property'. In other words 'the right of pre-emption would arise only when there is a sale', which means a valid and completed sale. Section 20 of the Right of Prior Purchase Act (section 21 of Punjab Pre-emption Act) is couched in identical "Any person entitled to a right of prior purchase may, when the sale or foreclosures has been completed, bring, a suit to enforce that right."
5. ' Obviously, in view of these provisions the right of prior purchase would accrue only when the sale is completed and not before its completion. The High Court in the instant case has held that under Article 10 of the Limitation Act read with section 29 of the Right of Prior Purchase Act (section 30 of the Punjab Pre-emption Act) the limitation would run from the time when the purchaser took physical possession of the whole of the property sold. Even if, for the sake of argument, it is held that the possession was taken by the purchaser sometime before the registration of the sale-deed the purchaser would be assumed to be in possession at the time of the registration of the sale- deed and his possession before the registration of the sale-deed cannot be taken to be as that of purchaser as contemplated by Article 19, Limitation Act. Article 10 of the Limitation Act reads as under : {{TABLE}} "10. To enforce a right of pre-emption whether the right is founded on law, or general usage, or on special contract. One year. When the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when .The instrument of sale is registered." {{TABLE}} ' Section 29 of the Right of Prior Purchase Act (section 30 of the Punjab Pre-emption Act) reads as follows :- "In any case not provided for by Article 8 of the second schedule of the Limitation Act of the State, the period of limitation in a suit to enforce a right of prior purchase shall he one year-
(a) in the case of a sale of agricultural land or village immovable property, from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations 'maintained under the Land Revenue Act, from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever shall be earlier.
(b) . . . .
(c) .
6. ' Sale as contemplated by Article 10 of the Limitation Act or section 29 of the Right of Prior Purchase Act must be a valid sale.
7. ' The transfer of Property Act is in force in Azad Jammu and Kashmir ; so in Azad Kashmir a valid sale can be effected 'in case of tangible immovable property only by a registered instrument'. It follows that in Azad Kashmir a sale becomes valid only when the sale-deed is registered. Even otherwise for the purpose of pre-emption a sale, as contemplated by section 20 of the Right of Prior Purchase Act, means a complete sale. As to when the sale becomes completed precisely speaking, is the question that requires determination ? Section 54 of the Transfer of Property Act defines the sale as 'transfer of ownership in exchange for a price paid or promised or part-paid or part-promised. In case of tangible immovable property it can be made only by a registered instrument in Azad Kashmir. Obviously the question then would arise as to when the registration of a sale-deed is completed? Section 61 of the Registration Act runs as follows : "(1) The endorsements and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No, 1.
(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52."
8. Thus it is clear that under section 61 of the Registration Act a sale-deed is completed on the date it is registered.
9. ' The argument that on registration of the document, under the provisions of section 47 of the Registration Act, it would 'operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration' ; may hold good so far it pertains to the parties in the sale-deed but as to the provision regarding the commencement of a document contained in section 47, Registration Act, it is to be confined in its application only between the transferor and the transferee. It has no relation and does not adversely affect the right of a person who is not a party to the document. The pre-emptor being not a party to the document of transfer it would not therefore commence to operate against him (pre-emptor) from a date of execution taking place prior to the registration.
10. ' The question as to the priority between the two documents, of course, is to be determined with reference to the provisions of section 47 of the Registration Act but the rule would not affect the right of a third person whose right of pre-emption comes into existence only on the date-the sale- deed is completed. In Ragho v. Sakharam (1) a similar question came up before the Court for examination and it was observed as follows : "For a right of pre-emption to arise the sale must be complete, that is, there must be an entire cessation of right on the part of the vendor: Buksha Ali v. Tofer All 20 W R 216. Until a registered deed is executed there cannot be such cessation of right and no right of pre-emption can arise. In fact if a suit had been brought between the dates of the execution and the registration of the sale-deed it would have been liable to be defeated by plea, on the defendant's part, that no right of pre- emption had arisen as the sale had not (1) AIR 1922 Nag. 200 been perfected, that is, that the vendor's right had not ceased and the vendee's right had not come into existence.
11. ' If the defendant could defeat the plaintiff's claim as above I do not think that he could, when it suits him, plead that the right arose at the date of the execution of the sale-deed. It would be inequitable to apply section 47, Registration Act, in such a case to give rise, retrospectively, to a right of pre-emption.
12. ' Moreover, if Article 10 is strictly construed, as a matter of fact no possession was taken under the sale, and the first part of that article would be inapplicable. As the second part is also admittedly inapplicable, Article 120 would be the only Article governing the case.", ' In Ram Gopal v. Dr. Baikunth Nath Sharma (1) of course the starting point of cause was held to be the date on which the possession was delivered to the vendee. Bennett, J. Who decided the case, seems to have been influenced by section 47 of J., Registration Act but we have held above that section 47 is effective only for the determination of the right of the parties to the document, therefore, this rule would not apply in the instant case.
13. ' In Mst. Sardar Begum v. Syed Masoom Shah (2) it was held that "for purposes of Article 10 the limitation in every case whether the sale-deed is compulsorily registrable or not begins from the date when the sale-deed is registered under section 60, Registration Act". In this judgment Mir Ahmed, J., who wrote the judgment, examining section 47 and section 75 of the Registration Act came to the conclusion that the words 'shall take effect' in clause (3) of section 75 have the same meaning as the words 'shall operate' in section 47 and that for the purpose of Article 10, Limitation Act, the limitation in every case shall begin from the date when the document is registered under section 60, Registration Act. As the right of pre-emptor comes into being only when the sale is completed, it would be illogical to say that the limitation starts running before the right for pre- emption comes into existence.
14. ' As regard the second point it was not controverted before this Court that Muhammad Azam was not clothed with equal right of prior purchase ; so assuming that Muhammad Azam, one of the vendees, had equal right of pre-emption with the pre-emptor even then, would he be deemed to have lost that right for associating, Daswandi, a stranger in the sale-deed ? Qazi Abdul Ghafoor did not seriously challenge the proposition thus put forth. His contention, however, is that the sale in the instant case being divisible, Muhammad Azam, one of the vendees, would not be hit by the mischief of the rule of sinker. The rule of 'sinker' is well settled by judicial pronouncements spreading over a long period. In Imam-ud-din and another v. Nur Khan and another (3) the facts were that one vendee having a right of pre-emption superior to the plaintiff had joined in purchase with a person who had no such right. It was held that in these circumstances the purchaser could not be allowed to rely on his own right so as to defeat the claim of the plaintiff for pre-emption.
15. Murad v. Mine Khan and others (4) and Achhru and others v. Labbu and others (5) also express the same view that `if a purchaser having equal right of pre-emption associates with himself in the purchase a person with the rights inferior to those of the pre-emptor, (1) AIR 1947 All. 252 (2) A I-R 1945 Pesh. 9 (3) 10 P R 1884 (4) 94 P R 1895 (5) 48 P R 1907 he is not entitled to resist the claim of such pre-emption to enforce his rights even as to.-his share'. This view was also confirmed in Yakub Khan v. Karman and others (1). It was observed that 'if a purchaser having an equal right of pre-emption associates with himself, in a transaction, that is indivisible, a person with rights inferior to those of pre-emptor, he is not entitled to resist the claim of such pre-emptor to enforce his rights even as to his own share of the purchase'. In Bhagwana and others v. Shadi and others (2) it was maintained that `if a purchaser having an equal right of pre-emption associates with himself in the .Purchase a person with rights inferior to that of the pre-emptor, he is not entitled to resist the claim of such pre-emptor to enforce his rights even as to his share of the purchase'. This view was followed with approval by Din Muhammad, J., in Pandit Harbangwan Dad v. Sardar Partap Singh and others (3). This view has also been taken in Mst. Fateh Bibi v. Ahmed Khan and 6 others (4) where after examining various authorities it was observed that 'the status of Allah Dad defendant No, 4 must be considered to have sunk down to the level of a mere stranger by joining with defendant No,
5. He was, therefore, not entitled to resist the suit of the plaintiffs-pre-emptors on this ground even qua his share'. It has thus become a well-settled law that if a purchaser having an equal or superior right of pre-emption associates with himself in the purchase a person having no right or right inferior to that of a preemptor he loses his title to resist the claim of a pre-emptor even to the extent of his share provided the sale is indivisible ; but in case of a sale where the share of each vendee is specified and also the price contributed by each one is specified, the rule of sinker would not apply because in such a case the transaction would be deemed as consisting of two sales and the sale being divisible in such a case a vendee having equal or superior right in spite of associating a stranger would still be entitled to resist the claim of the pre-emptor as to his share of the purchase.
16. Qazi Abdul Ghafoor, learned Advocate for the respondent, referred to Ram Nath and others v. Badri Narain and others (5) wherein it is observed that 'the object of pre-emption is to exclude strangers from the village and not co-sharers of equal rights. Where from the sale-deed it can be ascertained what is the share, area of property or interest in the village which the stranger has purchased, that share, area or interest alone can be the object of pre-emption in the suit. Where the share purchased and the proportionate price to be paid by each vendee are specified in the sale-deed it would not be necessary to make the co-sharer vendee a defendant in the suit; but where there is no such separate specification of the proportionate part of the purchase-money to be paid by each vendee, the co-sharer vendee would be a necessary party to the suit for pre- emption, as the proportionate part of the purchase-money of each vendee would have to be ascertained'. This ruling has been referred with approval by the Supreme Court of Pakistan in Abdullah and others v. Abdul Karim and others (6). At page 143 it has been observed that "according to the High Court the settled principle governing this question was that if the sale was divisible then the different vendees would retain their rights, that is to say, the sale to each vendee would be regarded as a separate sale. Upon this principle it became necessary next to consider as to whether the sale sought to be pre-empted (1) 66 I C 466 (2) AIR 1934 Lah. 878 (3) AIR 1938 Lah.
17. 242 (4) PLD 1971 Lab. 171 (5) I IL R 19 All. 148=(1897) 17 A W N 20 (6) PLD 1968 SC (Pak.) 140 in the present case was so divisible or not. Learned counsel appearing for the appellants in the High Court accepted the proposition that the sale would be divisible only if : (1) the shares of the different vendees were specified and (2) the different vendees had contributed proportionately towards the sale price". The facts of the instant case are identical as it would appear from the record.
18. ' The learned Sub-Judge, Mirpur, who decided the case found that Muhammad Azam vendee who had equal right of pre-emption, by associating Daswandi in the sale, had sunk himself to the level of a stranger. Consequently a decree for possession of the entire land was passed in favour of pre- emptor on payment of Rs, 2,000 the sale price. The first appellate Court relying on Ahmed Din v.
19. Siraj-ud-Din (I) came to the conclusion that the sale being divisible the entire claim could not be decreed and as a result thereof the judgment and the decree of the trial Court was maintained to the extent of the share of Daswa ndi but as regard the share of Muhammad Azam the suit was dismissed. The plaintiff-pre-emptor was, therefore, held entitled to the possession of half of the land i,e,, the share of Daswa ndi, on payment of Rs, 1,000. This price of Rs, 1,000 was ascertained by the first appellate Court on the basis of documentary evidence on the record, such as khasra Girdawari and Jamabandi which show that the entire land sold vide the sale was 'Mehra Awwal, bearing the same quality. The High Court, on second appeal, did not disturb the finding of the first appellate Court on the point of divisibility of the sale though it dismissed the suit as barred by limitation for having been instituted after expiry of one year from the date of delivery of possession taking place at the time of execution before registration. The first appellate Court, considering the quality of the land, came to the conclusion that the purchase price in the instant case was also paid in equal share. We quite agree that 'there can be no, presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendee took the property in specified share if consideration was mentioned as a lump sum'. But in view of the finding of the facts on the basis of record by first appellate Court which was confirmed by the High Court that the price for the purchase of the land was also contributed by the vendees in equal shares, we would not interfere with such finding of facts in civil matters unless there is misreading of evidence or it is given without evidence. No such mistake has been pointed out by the learned counsel for the appellant. We, therefore, accept the finding given by the first appellate Court regarding the contribution of consideration that it was contributed in equal share. In case of sale where share of different vendees is specified in the sale-deed and it is ascertained that price was also contributed proportionately the sale being thus divisible the purchaser having equal or superior right with pre- emptor shall be entitled to resist the claim of pre-emptor to the extent of his share in the purchase.
20. ' We, therefore, accept the appeal to the extent of the share purchased by Daswandi and set aside the finding of the High Court and restore that of the first appellate Court. The pre-emption amount, if not paid so far, shall be deposited within three months from the date of announcement of the judgment.