' NAIMUDDIN, J.--The facts giving rise to these appeals, by leave, are as follows:-
1. One Sajjad Haider Shah sold the disputed 'haveli' built on 18 Marlas of land situate at Talagang through four registered sale-deeds all dated 2-10-1979 to the four appellants in the above- mentioned four appeals, namely, Nasir Abbas, Nazar Abbas, Muhammad Ibrahim and Mst. Sahib Noor.
2. The respondent who is the brother of the vendor filed against the appellants four separate pre- emption suits for possession on the basis of 'yak jaddi' of Sajjad Haider Shah in the Court of Civil Judge, 1st Class, Talagang, claiming that onsiderznon for eachsale was Rs,3,000 though in each sale-deed it was shown I1s.10,000. The appellants contested the suits and claimed that the property lies within the urban limits of Talagang Tdwn and was not, therefore, pre-emptible.
3. The trial Court framed necessary issues one of them being "Whether the suit property lies within the urban limits of Talagang Town and, thus, this property is not pre-emptible? OPD" and the decision thereof resulted in the dismissal of all the suits.
4. Aggrieved by the judgment and decree respondent filed four appeals with the Additional District Judge, Attock, who allowed the same by a common judgment dated 9-6-1981 and consequently decreed the suits. Against it the appellants filed separate revision petitions in the Lahore High Court but failed.
5. Leave to appeal was granted in all the four appeals to consider the question whether the disputed property is within the urban area so as to be non-pre-emptible.
6. In deciding the above issue in favour of the appellants the learned Civil Judge relied on the following pieces of evidence:-
(i) the evidence of appellants who deposed that the suit 'haveli' is situated in Ward No,15 within the Town Committee Talagang and that (a) locality has been provided with water supply from Town Committee; (0) situated at a distance of one furlong from the Court; and (c) the houses of the respondents Nawazish Ali Shah and Muhammad Khan are situated in the same Ward i.e, No,15'
(ii) a Certificate from the Chairman, Town Committee, Talagang (Ex.D.8) to the effect that 'haveli' was situated in Ward No,15 within the Town Committee Talagang;
(iii) copy of Punjab Gazette (Extraordinary) dated 5-11-1979 (Ex. D.7) declaring the names of the persons securing the highest number of votes as Members of Talagang Town Committee and in the list at Serial No,15 one Syed Azhar All Shah son of Syed Fateh Ali Shah was declared elected uncontested from Ward No,15;
(iv) the said Member was then the Vice-Chairman of Town Committee, Talagang, and is an Advocate of Talagang Bar as deposed to by the respondent;
(v) receipts of payment of tax(Exhs. D.9 to D.12) which were levied by the Town Committee for getting the sale-deeds registered with the Sub-Registrar, Talagang;
(vi) copies of Forms PTI (Exhs.D.13 to Ex.D.16);
(vii) statement of the appellant that the suit 'haveli' and that of the respondent have a common wall,
(viii) admission of the respondent that he had only one 'haveli' in the Town and that haveli has been described vide Ex.D.15, and
(ix) the evidence of Khalid Mahmud Malik, Secretary, Town Committee, Talagang (D.W.2) who deposed that in the Local Bodies Elections of 1979 Syed Azhar Ali Shah was elected as Member of the Town Committee Talagang from Ward No,15 wherein in 1965 street light of the Committee was provided and still continuing in the said area and a tender had been opened with the contractors for laying 'pucca' streets in the said Ward. He further deposed that only for the purposes of Local Bodies Elections 1975 the disputed Ward No,15 was made part of the Town Committee but in 1975 on the basis of Election Rules this was excluded from the limits of the Town Committee vide Notification dated 10-1-1975 (Ex.D.5).
' The learned trial Court also relied on the evidence of Khan Zaman (D.W.3) who was an independent witness and who was resident of Ward No,15 and got ration quota from -Talagang as the urban quota and who deposed that there were two 'pucca' streets laid by the Committee and that the locality was adjacent to Talagang Town. The trial Court also relied on the Notification issued by the Local Government and Social Welfare Department (No,S.0.1. (BD)-I-37/64 (Campbellpur dated 30-12-1965) declaring the area as Urban area. The trial Court also took note of the subsequent Notification dated 10-1-1975 whereby the Governor delimited the boundaries of Talagang Town Committee and exclued Ward No,15 from it for the purposes of Basic Democracies Order. After hearing the evidence of the respondent who was his own sole witness the trial Court dismissed the suit as stated before.
7. The trial Court also relied on Lal and others v. Muhammad Sharif (PLD 1961 (W.P) Lah.47) wherein it was held that the character of the property is to be decided in the circumstances of each case having the overall picture in view as to whether the site retained its rural character or has been absorbed in town.
8. The learned Additional District Judge after noting the respective submissions of the learned counsel for the parties and the case of Salamat Rai v. Kanshi Ram (30 P.L.R.1918) observed as follows:- "In the present case it has not come on record that the disputed property is surrounded by the roads, factories having Government buildings occupied by Government employees and other buildings in occupation of different classes of people. There are no metal roads near the disputed property and electric poles have not been installed by the municipal committee and even the Tehsil Courts are not near the disputed property."
' And taking the above factors into account expressed the opinion that the property does not have the character of urban immovable property and therefore found that the property in dispute is village immovable property which is pre-emptible.
9. The High Court in the impugned judgment after noting the contentions' of the learned counsel for the appellants and the cases of Lal and others (supra) and Sh. Abdur Rahman and another v. Khan Sahib Haji Rashid. Ahmed (A.I.R.1937 Lah.182) cited by him and also the submissions of the learned counsel for the respondent while confirming the finding of the learned Additional District Judge observed as follows:- "The learned Additional District Judge appeared right in taking note of the fact that the absence of the factories and artisans/ labourers creeping in as new inhabitants was quite material and that the society's continuing original homogeneity clearly suggested that it was not an urban area.
Although this was a finding contrary to that of the trial Court, yet on legal plane, no fault could be found with it."
' The High Court referring to the notification (Ex.D.5) and the evidence of the Secretary of the Municipal Committee further observed as follows:- ' Notification Exh.D-5 and the evidence of the Secretary of the Municipal Committee showed that this area had been lately taken out of the Municipal limits and hence the argument that it was once within these limits, did not appear much inspiring. Conversely, it may well mean that its original position as a village was restored."
' However, the main reason which weighed with the High Court for dismissing the revision was that the revisional powers under section 115 C.P.C. Are primarily intended for correcting the errors made by the subordinate Courts in the exercise of their jurisdiction but erroneous decision of facts is not revisable except in case where it was based on no evidence or inadmissible evidence or is so perverse that injustice would result therefrom and in support relied upon Muhammad Umar Beg v.
Sultan Mahmood Khan (PLD 1970 S.C.139) and Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).
10:' We have heard the learned counsel for the parties. The lean ad counsel for the appellants submitted that if the material evidence nas not been considered or omitted from consideration that would be a procedural or jurisdictional defect. He pointed out that the learned Additional District Judge failed to consider many pieces of evidence and their effect while upsetting the decree. He further submitted that the High Court has not considered this error of the Additional District Judge which is a jurisdictional defect. He submitted that the learned Additional District Judge and the High Court have only noted the respective submissions of the counsel for the parties and have not discussed the entire evidence. He also submitted that the learned Additional District' Judge and the learned Judge in chamber misdirected themselves when they considered only some of the factors on which character of the proper Could be determined.
' On the other hand, the learned counsel for the respondent submitted that the finding arrived at by the learned Additional District Judge that the property was village immovable property was a finding of fact and therefore it could not be interfered with.
11. The submission of the learned counsel for the appellants is correct that except noting the submissions of the learned counsel for the parties and referring to the certain pieces of evidence which have been mentioned hereinbefore the first appellate Court has not considered the entire evidence which was referred to and discussed by the trial Court in its judgment. Nowhere the first appellate Court has referred to or discussed the evidence of Khan Zaman (D.W.3) which has been mentioned above and the evidence of Khalid Mahmud Malik fully. It is settled that if the evidence on the record has not been fully weighed and considered, that does not fulfil,the requirements! Of 0.41, R.31, and is liable to be set aside on revision. See Mathra, Dass and. Others v. Muharram Din and others (AIR 1915 Lah. 242). It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See Dwarika v. Bagawati (A.I.R.1939 Rangoon 413) and Fut Chong v. Maung Po Cho (A.I.R.1929 Rangoon 145).
12. The test for deciding the question whether a property is a village immovable property or urban immovable property was laid down by a Division Bench of Lahore High Court in Lal and others v .
Muhammad Sharif (P L 0 1961 (W.P) Lah.47) to which reference has been made by the learned counsel for the appellants and its is: "What is required is to have an overall picture and then to assess whether the locality retains its rural area or has been absorbed in the town."
' Examining "thefacts in the light of the above test we find that the following factors are in favour of holding the disputed property as urban immovable property:-
(i) the locality has been provided with water supply from Town Committee;
(ii) It situates at a distance of 1 furlong from the Courts;
(iii) many houses including the houses of different persons are adjacent to the disputed property;
(iv) the house of Syed Azhar Ali Shah who was declared elected unopposed to the Town Committee from Ward No,15 is in the locality ;
(v) the houses of respondents Nawazish Ali Shah and Muhammad Khan are in the same locality;
(vi) the Town Committee has provided street lights in the locality;
(vii) Town Committee treated the property as urban property and charged tax on its transfer to the appellants.
(viii) At the relevant time the Committee had given contract for construction of metalled lane in the ward. The locality was included in the Town committee in 1965 though it was done under the Basic Democracies Order.
(ix) Khan Zaman (D.W.3) was getting his ration quota from Talagang as the urban quota.
According to his deposition there were two 'pucca' streets laid by the Committee and the locality was adjacent to the Town Committee.
13. As against the above evidence the fact that subsequently in 1975 the area was excluded again for the purposes of elections would not change the character of the property once the locality in which the property situates was considered and declared by the Court itself as part of Town Committee because the character of the property does not depend on Government declaration. It is correct that there are no houses adjacent in occupation of Government employees or artisans or factories in the locality nonetheless the houses are occupied by persons one of whom was member and the Vice-Chairman of the Town Committee and then it is not the necessary or the only factor in determining the character of the property that there must be factories or buildings occupied by Government employees in the locality. Further, there is no evidence except respondent's own words that . The area in dispute was still a village occupied by a body of men mainly dependant upon agriculture or occupations subservient thereto.
14. There are cases wherein rural areas in the vicinity of a town which have ceased to be rural and have grown into a suburb of the town have been held to be governed by rules applying to urban properties. However, reference may be made to a short judgment of a Division Bench of Lahore High Court reported as Diwan Chand v. Nizam Din and others (78 I.C.991), the main part whereof reads as follows: - "The question, upon which we are invited to express our opinion, is whether the property in dispute is to be deemed to be village immovable property as contemplated by the Punjab Pre-emption Act. There can be no doubt that the land now occupied by the Machine Mohalla, including the property in dispute, was at one time a part of the village Pira Ghaib, but the facts found by the Courts-below justify the inference that it has ceased to be a part of the village and must now be regarded as urban property. The expression "village" connotes ordinarily an area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto. Now, the Mohalla in question is within the limits of Municipality of Jhelum and is occupied by persons who are engaged mainly in commercial pursuits. The reported cases contain many instances of rural areas in the vicinity of a town which have ceased to be rural and have grown into a suburb of the town. Such areas have been held to be governed by rules applying to urban properties."
15. The learned Additional District Judge ignored the evidence of D.W.2 and D.W.3 when he held that there are no metalled roads or electric poles near the disputed property or even the Tehsil Courts.
The learned Additional District Judge completely ignored the evidence on record as mentioned hereinbefore as well as the findings of the trial Court. Similarly the High Court fell into error.
16. Taking an overall view of the evidence that has been produced by the parties we are satisfied that the finding of trial Court was H correct that disputed property is urban immovable property.
17. Accordingly we allow these appeals and set aside the impugned judgments of the learned Additional District Judge and the High Court and restore the judgments and decrees of the trial Court whereby the 'respondent's suits were dismissed. We, however, in the circumstances of the case leave the parties to bear their own costs.
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