' ABDUL QADEER CHAUDHRY, J.---These appeals by leave of the Court are directed against the common judgment of the High Court dated 13-5-1992.
2. The facts in brief are that two real brothers Aurangzeb and Dureaz Khan sons of Baz Khan sold the suit land to the respondents. The appellant preempted the sale and filed a suit for possession.
The appellant claimed superior right on the ground that he is son of Dureaz Khan and nephew of Aurangzeb. The suit was contested. The learned Trial Court decreed the suit of the appellant on payment of Rs,64,000. The appeal filed by the respondents was dismissed by the Additional District Judge. Three Regular Second Appeals were filed before the High Court, which were disposed of by the impugned judgment. The orders of the lower Courts were set aside and the case was remanded to the Trial Court for recording evidence on the additional issue.
3. The operative part of the leave granting order reads as under:- "The right of pre-emption of the plaintiff/petitioner on the ground of his close relationship with the vendors as alleged by him in the plaint is not disputed. However, the case of the petitioner is that all the defendants/vendees were not tenants of the suit land and on account of inclusion of the non- tenants in the transaction of sale the principle of sinker had come into play depriving the vendee from claiming right of pre-emption on the ground of tenancy as provided for in para.25(iii)(d) of Martial Law Regulation 115 and that the Trial Court as well as the Appellate Court had rightly negative their claim and decreed the suit of the plaintiff/petitioner. The learned counsel for the respondents addressed that some of the defendants/vendees were not recorded as tenants in the tenancy of the suit land at the time of purchase but contends that the share of each vendee was specifically recorded in the registered deed and that the each vendee had contributed his share towards the sale consideration, but since there were no allegations in the plaint that the defendants/vendees had lost their right of preemption on the ground of tenancy on account of sinker or an issue was framed they could not be made conscious of producing evidence on this aspect of the case and that the remand of the case in the circumstances was inevitable.
' To consider the important legal point, leave to appeal is granted in all the three petitions.
' The trial of the case shall continue but the judgment shall not be announced. If, however, arguments are heard, judgment prepared by the Trial Court, the same with other record, in sealed cover, shall be sent to this Court. The Trial Court shall conclude the proceedings within six months to avoid delay in the hearing of this Court. The Trial Court shall conclude the proceedings within six months to avoid delay in the hearing of this appeal and the party who creates hurdle in the disposal of the remand, shall be reported against to this Court."
4. It has been stated by both the learned counsel that the evidence has since been recorded by the Trial Judge and he has only to pronounce the judgment. The learned counsel for the appellant has submitted that the order of remand is not justified on the facts of the case, the additional issue framed by the High Court is not necessary because the entire evidence has already been recorded. The appellant had himself urged at the leave stage that the principle of sinker would apply. The High Court while 'setting aside the judgment of the two Courts below has observed as under:-- "However, in the written statement the factum of tenancy was specifically pleaded and it was averred that the appellants had got superior right of pre-emption as compared to the respondents. No issue qua the applicability of the principle of sinker was framed. They were not given any opportunity to lead the evidence to establish the divisibility of the sale as per condition laid down by the superior Courts. They have simply been non-suited on the ground that the money was paid in lump sum. Had they been given any opportunity the matter would have been properly decided. The appellants in spite of the fact that their tenancy qua the disputed property in their possession in a specified share had been admitted even then they have been deprived of their valuable rights by the application of principle of sinker as they had joined strangers alongwith them in the sale."
Though no issue was framed by the Trial Court, yet a finding was recorded against the respondents. The respondents had not been given any opportunity to lead evidence. The judgment of the High Court is perfectly legal.
' For the foregoing reasons, these appeals are dismissed with no order as to costs.