' This second appeal, by Mst. Gul Adam, plaintiff-appellant, challenges the judgment and decree dated 5-12-1978 of the learned Additional District Judge, Bannu at Lakki whereby the findings of the Civil Judge, Lakki on issue No. 1 vide judgment dated 6-5-1978 was reversed and the suit of the plaintiff-appellant was dismissed.
2. The facts of the case, briefly stated, are that the defendants-respondents had purchased the suit land measuring 1 Kanaland 15 Merles and the plaintiff-appellant had pre-empted it vide Suit No, 235/1 of 1976 on the grounds of 'co-ownership, contiguity and participation in immunities and appendages, the defendants-respondents contested the suit and the trial was held on the following issues.
(1) Whether the plaintiff has got superior right of pre-emption ? 0. P. P.
(2) Whether the plaintiff has estopped by his conduct to bring the present suit : 0. P. P.
(3) Whether the suit is within time ? 0. P. P.
(4) Whether the suit is bad for the purposes of court-fee and jurisdiction : ? 0. P. P.
(5) Whether the defendants have effected any improvements if so, how much and with what effect ? 0. P. P.
(6) Whether the transaction is exempt from pre-emption ? 0. P. P.
(7) Whether the suit is benami, if so with what effect ? O. P. D.
(8) Whether a sum of Rs, 15,000 was paid actually ? 0. P. D.
(9) What is the market value ? 0. P. P.
(10) Relief.
3. After recording the evidence as produced by the parties the learned Civil Judge, Lakki decided Issues Nos. 1 to 4 and 6 to 8 in favour of the plaintiff, and for the determination of extent of improvements, if any, made by the defendants and to find out market value of the suit land (issues Nos. 5 and 9) appointed a Commissioner. On receipt of report of the Commissioner, the learned trial Court decreed the suit of the plaintiff- on payment of Rs, 15,445 as price of land and compensation for improvements. Feeling aggrieved, the defendants filed an appeal before the learned Additional District Judge Bannu at Lakki who reversed the finding of the trial Court on Issue No. 1 and dismissed the suit of the plaintiff.
4. It is admitted on the side of the plaintiff-appellant that the suit land is situate inside the limits of Town Committee, Lakki, that at presently it is not under cultivation, and there is one house constructed by Haqdad Khan etc. In the north-west side in this Khata, and that the area purchased by the defendants-respondents and the area owned by the plaintiff-appellant are lying vacant.
The learned Additional District Judge has proceeded on the presumption that although this parcel of land is mentioned, agricultural property in the revenue record, but it has ceased to be so and some houses are standing on it, and that a private partition has taken between the owners, as such the plaintiff did not remain a co-sharer and she had not led any evidence regarding any other superior pre-emptive rights, hence she could not claim any superior right of pre-emption.
5. I have very minutely gone through the record of the case and have heard the learned counsel for the parties at length, and I have come to the conclusion that the learned Additional District Judge has proceeded on wrong premises in this case. No doubt, the entire parcel of this land is not presently under cultivation and one house also stands on a portion of it, but it is also a fact that the other area of this parcel purchased by the respondents and owned by the appellant, is still jointly shown in the site plan which was prepared by the Patwari (P. W. 1).
6. A local Commissioner was appointed by the trial Court for limited purpose of assessing the market value and any improvements made by respondents in the suit land. He was not appointed to find out if any partition had taken place at the spot or that any person was in exclusive possession of any definite area. The wall which is alleged to have been built in this parcel of land was actually built by the respondents after the purchase and previously no wall or any other sign of partition was existing in the suit area and the area owned by the appellant. The learned Additional District Judge has erroneously taken into consideration the statement of the local Commissioner regarding matters about which he had no mandate from the trial Court. A landed property cannot become plots simply for the reason that it is not brought under cultivation for a period of time. The vacant portion would still be agricultural property although it could be termed as Banjer. It has also come in evidence that lands lying adjacent to this parcel of land are still under cultivation. How could it be assumed that this parcel of land has become residential area. I cannot find myself in agreement - with the presumption drawn by the learned Additional District Judge. This parcel of land is still assessed to be land revenue and the revenue record does not show that it has become a "Ghair Mumkin Abadi". It still come under the definition of agricultural land. It has been proved from the statement of the Patwari that the appellant is a co-sharer in the estate and the respondents do not enjoy any such right. Naturally, a plaintiff, being a co-sharer in the estate, would have a preferential right of pre-emption.
7. I, therefore, set aside the findings of the learned Additional District fi Judge, on issue No. 1 and restore the findings of the learned trial Court on this issue. This second appeal is accepted and the impugned judgment of the learned Additional District Judge is set aside. It is a pity that the learned lower Appellate Court had not given findings on the other points raised in the memorandum of appeal before it, and for that matter, the case had to be remanded again to him. His failure to give decision on all the points involved in the appeal has resulted in delay in the disposal of this case as also the parties have been put to unnecessary financial burden. It should be kept in mind by the lower Courts that they should decide all the issue raised before them so that the necessity of frequent remands does not arise. ' One factor of delay of civil proceedings is that conduct of the lower Courts in not deciding all the points at one and the same time. I would, therefore, remand this case back to the learned Additional District Judge, Bannu at Lakki to give findings on other points raised in the memorandum of appeal if argued before him after notice to the parties. In view of the peculiar nature of this case, I would make no order as to costs.