' SHAFIUR RAHMAN, J.---A direct appeal under Article 185 of the Constitution has been filed against the judgment and decree of reversal passed by the Lahore High Court on 16-5-1992 whereby a suit of pre-emption filed by the respondent was decreed against them.
2. The factual background of the case is that land measuring 49 Kanals 8 Marlas which happened to be 563/672 shares was sold by a brother of the respondent/pre-emptor Mst. Nisar Fatima in favour of three sets of appellants in varied shares. The first group of appellants purchased 368/988 shares (18 Kanals 8 Marlas), the other group purchased 160/988 shares (8 Kanals) and the third purchased 460/988 shares (23 Kanals). The purchase price was not divided proportionately to the shares purchased but shown to be Rs, 90,000 for the entire. It is the case of the appellants that it was shared by each set of purchasers proportionate to the shares purchased by them.
3. A suit of pre-emption was instituted by the respondent on the ground that she was the sister as well as co-sharer in the property and had a superior right of pre-emption as against the vendees.
The suit was resisted on a number of grounds and these are reflected in the issues framed which are as hereunder:-- "(1) Whether the plaintiff has superior right of pre-emption? OPP.
(2) Whether the suit land has not been properly described? If so its effect? OPD
(3) Whether the plaintiff had not thumb-marked the plaint or power of attorney? If so, its effect?
OPD
(4) Has the suit been properly valued for the purposes of court-fee? If so, what is the correct valuation and its effect? OPD
(5) Whether the ostensible price of Rs,90,000 was fixed in good faith or actually paid? OPD.
(6) What was the market value of the suit land at the time of sale? OPP
(7) Whether the vendee defendants had paid an additional amount of Rs,45,000 for the building situated in the suit land? If so, its effect? OPD
(8) What was the market value of this building at the time of sale?
(9) Relief."
4. The trial Court on the material issue of the superiority of the right of pre-emption held as hereunder:- "The defendants have also placed copies of Khasra Girdawaris on the record as Exh.D-5 and. Exh.D- 6 but these documents are not helpful for the defendants due to the reasons firstly that no specific portion of land was sold by the vendor to the defendants and it was share out of a Khata which was sold to the defendants, secondly that according to Exhs.D-5 and D-6 the defendants were not collectively in possession of the Khasra Nos. At the time of sale in dispute. Some defendants were in possession of a Khasra No, while the remaining defendants were not in possession of these numbers. Same is the state of affairs regarding the other defendants as the law of sinker shall be fully applicable in the present case. Keeping in view these circumstances, I am constrained to hold that the plaintiff being the real sister of the vendor a co-sharer has a superior right of pre-emption qua the defendants hence this issue is decided in favour of the plaintiff."
' On the other issues the pleas of the appellants were negative and the suit was decreed on payment of Rs,90,000 including Zar-e-Panjum.
5. On appeal, the Additional District Judge reversed the finding on issue No,1 i,e,, the superior right of pre-emption of the respondent on the reasoning as hereunder:--- "On the basis of the above authority (1980 CLC 1817 SC (AJK), I find that whip according to the sale- deed each appellant has purchased a specified share in the suit property so the principle of sinker will not apply in the present case, although according to the sale-deed, there is no mention that the sale price was paid by each separately. As the sate-deed was registered jointly so it is quite evident that each vendee would have paid the price according to the shares of the land purchased by him and in these circumstances, I do not find myself in agreement with the findings of the learned trial Court so far as this aspect of the issue is concerned."
' The result was that the suit of the plaintiff was dismissed with costs.
6. The High Court by the impugned judgment placed reliance on the case of Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and came to the conclusion that the payment of proportionate price separately by each set of purchasers was not proved either from the documents or from the oral evidence led at the trial and applied the doctrine of sinker and restored the judgment of the trial Court.
7. Mr. M. Munir Peracha, Advocate, the learned counsel for the appellants has contended that the sale agreement was executed in this case on 8-9-1977. It was renovated on 10-12-1977. The purchasers had obtained possession under this agreement to sell. The sale-deed was got registered on 27-12-1977. The suit for pre-emption was filed on 23-12-1978. On the basis of decision of this Court in Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 the learned counsel contended that the suit was barred by time as the possession under the sale was obtained prior to a year of the institution of the suit. On the main ground whether the purchasers enjoyed on any part of the land purchased tenancy rights prior to the agreement to purchase, the learned counsel conceded that there was no record or evidence of their having come into possession from an earlier date as tenant or to have remained in possession in that capacity. Their possession is traceable to the agreement to purchase.
8. It is correct that the law laid down in the case of Barkhurdar fully supports the legal ground taken up for the first time before us. This question has not been debated in the trial Court, the first appellate Court and the second appellate Court and for that reason neither an issue exists, nor a finding has been recorded by any of these Courts. However, there is an earlier decision of a larger Bench of this Court Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCM R 1206 in which the author Judge was also included. In that case clearly a different proposition had been advanced and this question had been answered in the following words:--- "Section 30 of the pre-emption Act prescribing the limitation provides for possession under the sale. If the sale could not be completed without registration, possession obtained before registration of the sale could not be under the sale. Admittedly, the suit was within one year of the registration of the deed. Hence, it was within time, the possession obtained earlier to the sale being immaterial."
9. In this case it is not disputed that the parties had expressed and intended that the sale would be complete only on the registration of the sale-deed and not earlier. Such being the intention and the content of the document, the sale cannot be said to be complete with the execution of the agreement to sell nor possession obtained under the agreement to sell was possession obtained under the sale so as to afford a cause of action to the preemptor to bring a suit.
10. In view of the legal position explained above no case is made out for our interference in appeal which is dismissed with costs.