This revision calls in question the judgment dated 14th June, 1980 delivered by the learned Senior Civil Judge, Gujranwala.
2. The facts necessary for the purposes of this revision petition, briefly stated, are that the respondent-plaintiff Jameel Ahmad Khan instituted a suit against the petitioner defendant Muhammad Ahmad, on 19th January, 1974, in the Court of the Senior Civil Judge. Gujranwala for possession of the property and land in dispute in all measuring 32 kanals 13 marlas, 5 sarsahis, situate in the estate of Qilla Chand, Tehsil and District Gujranwala through pre-emption of the sale made by the brother of the respondent Jaleel Ahmad Khan in favour of the petitioner through a registered sale-deed dated 21st January, 1973.
3. The petitioner resisted the suit and on the divergent pleadings of the parties 10 issues were framed by the learned trial Court. Issue No. 2 which is in controversy in the present revision petition reads as under "Whether the suit is not maintainable in law as alleged in objection No. 1 ? 0. P. D."
4. The objection as set up in the written statement is that the property in dispute is a "Factory" and no suit for pre-emption of the sale pertaining thereto was maintainable and as such the suit was liable to be dismissed.
5. The learned trial Court by its impugned judgment dated 14th June, 1980 recorded the finding that the suit land is a village immovable pro--perty and thus subject to the law of pre-emption. The issue was decided against the petitioner-defendant and in favour of the respondent-- plaintiff.
6. Feeling aggrieved the petitioner-defendant has come up in revision td this Court.
7. The learned counsel for the petitioner contended: firstly, that the finding of the learned trial Court that the property in dispute is village immovable property is based on misreading/non-- reading of the material available on the record.
Elaborating his contention the learned counsel submitted that the learned trial Court while answering the issue did not at all advert to Exh. D. 1 the plan of Jaleel Town, Khasra-girdawaris Exh.
D. 7 to Exh. D. 12 and all other documents placed on record by the petitioner which were Exh. D. 14 to Exh. D. 53 and consisted of the contribution to the. Employees Social Security Fund, telephone contract and other documents showing that the property was a `factory'. He also argued that the oral evidence on record was also not considered at all. He referred to the statement of the plaintiff himself made before the trial Court to show that there were admissions therein which clearly establish that the property in dispute is not a village immovable property or agricultural land but a factory situate in the suburbs of Gujranwal'a and just adjoining a newly set up colony of Jaleel Town together with all the ingredients of a property situate in town. The learned counsel submitted that in the context of the evidence on record the finding as recorded by the learned trial Court on the issue in question could nor have been arrived at: secondly, that the property in dispute clearly fell within the definition of urban immovable property and had been established by the material on record to be a factory and as such not amenable to pre-emption as agricultural land/village immovable property. According to the learned counsel, the description of the land as given in the sale-deed itself and the plaint also excluded major portion thereof from the purview of agricultural land/village immovable property and thus the finding of the learned trial Court is liable to be reversed ; and thirdly, that the learned trial Court while recording a finding on the issue in question did not advert to the various authorities cited before the learned trial Court as is evident from the written arguments submit--ted by the petitioner which are available on the record. The learned counsel in this regard referred to Ch. Ghulam Ahmad Khan v. Diwan Sheikh Ghulam Qutub ud Din (PLD 1960 Lah. 461) 16th Ind. Cas. 580, 71 Indian Cases 145 and 1890 Punjab Record 87. The learned counsel submitted that apart from the above citations it has also been held in Mst. Maysooda Begum v.
Maulvi Abdul Haq and others (PLD 1968 Lah. 897.) that right of pre-emption would not extend to towns or outgrowths or suburbs of tows thought custom may be existing in such areas. He also referred to Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 Lah. 359) to contend that the learned trial Court before answering the issue in question should have adverted to the whole record before it and first decided whether the site in question is a town or a village for the purposes of the Pre-emption Act and that mere description of the property in the Revenue record and to some extent in the sale-deed was not sufficient to hold that the land is pre-emptible as agricultural land. Continuing his arguments the learned counsel submitted that it was obvious from the sale-deed that the alienation was for construction of a factory and that property being admittedly situate in the suburb of a town was urban immovable property and not amenable to pre-emption under section 6 of the Pre-emption Act. Reference was also made to Mst. Kapuri v.
Kanshi Ram and another (AIR 1927 Lah. 799.) to submit that in a similar situation as in the present case it was held that when the property situated in rural areas in the vicinity of a town grows into a suburb of the town then it does not remain pre-emptible under section 6 but such areas are governed by rules applying to urban properties. In the above context reference was also made to Umar Bakhsh v. Abdul Karim and others ((1898) 70 P R 239), Kishan Dial v. Ali Bakhsh and others ((1890) 87 P R 265) and Muhammad Din v. Shah Din and another ((1907) 90 P R 435).
Lastly, that the property in dispute was not pre-emptible even as urban immovable property as it is established to be situate in the suburb of the Gujranwala Town where no custom of pre-emption was existing. He referred to Gopal Singh and another v. Mool Raj and others (AIR 1924 Lah. 557) and submitted that this was also a case of the outgrowth of Gujranwala as is the case in hand in which it was held that no custom of pre-emption in a business quarter of recent growth which lies outside the walls of the Town of Gujranwala exists. Concluding his arguments the learned counsel submitted that in the light of the above submissions it can be safely said that the findings of the learned trial Court are arbitrary and based op complete disregard of the record.
4. The learned counsel for the respondent, on the other hand, made the following submissions
(1) The finding challenged in this revision is a finding of fact and there being no jurisdictional defect in the order the revision petition is not maintainable ; (;i) that the question whether the property in dispute is situate in village, town or suburb of a town is a finding of fact and as such could not be questioned in a civil revision ; (i.e) that the learned trial Court had referred to Exh. P. 1 and Exh. P.2 which were the only relevant documents for the purposes of record--ing a finding on this issue and as such no misreading or non-reading could be attributed ;
(iv) that the petitioner is on using dilatory tactics in that he first filed a revision for having this issue tried as a preliminary issue to which the respondent conceded only to have the matter concluded at an early date and now again the petitioner has challen--ged the finding on that issue to prolong the matter. The learned counsel submitted that in case the finding of the learned trial Court on the issue in question is not sustained all the issues in the suit should be tried together and a judgment on all of them deliver--ed once for all.
5. In reply, the learned counsel for the petitioner submitted that the grievance of the petitioner precisely is that before holding the property as village immovable property the learned Court below did not give a finding whether it is situate in a village, town, or suburb of a town which it should have done. The learned counsel for the petitioner also submitted that now that the matter is pending for a long time he will have no objec--tion if after setting aside the finding on issue No. 2 the matter is remitted to the Court below for recording a fresh finding on the issue in question and this issue is also decided along with other issues framed in the suit.
6. Having given consideration to the controversy involved I find that the submissions made on behalf of the petitioner have force, especially the ones whereby the finding of the Court below on the issue in question has been challenged on the basis of misreading/non-reading of the record. I am of the view that before holding the property as village immovable property/agricultural land it was incumbent upon the Court below to have adverted to the whole of the material placed on record by both the parties. It is manifest from the impugned judgment that nothing else has been taken into consideration by the Court below except Exh. P. 1 and Exh. P. 2 i.e. The-jamabandi and the sale-deed. Now, as is shown by the trend of authorities on the subject these two documents are not the only things which could conclude the controversy. It was required of the Court below to have seen the other documents which were germane to the issue such as the khasra-girdawaris which gave description against some of the khasra numbers as karkhana. The location of the property as to whether it is in the vicinity or outgrowth of Gujranwala Town as attempted to be established through production of Exh. D. 1 and from the oral evidence on record which have been completely kept out of consideration has also not been determined.
7. It may also be observed that the finding as to whether the property is village immovable property bad to follow the determination of the point whether it is situate in a village as envisaged by the Punjab Pre--emption Act or is situate in a town, suburb or outgrowth of a town. This aspect of the matter-was all the more called for to be determined in view g of section 3 (3) of the Punjab Pre-emption Act which provides that to determine whether a property. Is urban immovable property within the meaning of the Pre-emption Act it is either to be determined by the Board of Revenue by a notification in the official Gazette or to be found by the Courts.
8. In the light of the above discussion it is manifest that the finding of the learned trial Court on the issue in question cannot be sustained. Since I intend to remit the case back to the learned trial Court I do not want to further discuss the contentions on merits of the issue inasmuch as any observation that may be made by me on the point may not prejudice the case of either party before the learned trial Court and suffice by saying that the judgment of the learned trial Court suffers from a material irregularity and illegality having been delivered by misreading/non-- reading of the record.
9. It being the consensus that in view of the inordinate delay that has occurred in the matter all the issues, including the issue in question in this revision, be determined together, it is- directed that the learned trial Court shall put the parties to trial on all the issues and , decide the matter as a whole.
10. In view of the foregoing discussion, accepting this revision I set aside the judgment of the learned trial Court dated 14th June, 1980 and remit the case back to the learned Senior Civil Judge, Gujranwala for decision of the whole of the suit afresh in accordance with law.
There will, however, be no order as to costs.
11. The learned trial Court is further directed to expeditiously dispose of the matter.