AMJAD KHAN, J" House No- B-X-15-S-7, situated in Mohallah Sheikhan West, Wazirabad Town, having been purchased by the respondent Hassan Raza lor a consideration of Rs. 15,000/- by a registered sale-deed dated 18-1-1975; Nabi Bakhsh, father of the petitioners brought a suit on 21-6- 1975 to pre-empt the sale on the ground of contiguity of his own house to its west, having a common wall therewith. The original plaintiff died and his two sons and three daughters, the petitioners herein, got themselves impleaded in his stead and continued the suit which was contested by the vendee on the basis of his written-statement dated 19-2-1977 wherein while admitting that the town of Wazirabad was founded in the times of Moughal Emperors, he asserted that the right of pre-emption exists in only some of its localities but not in the rest of the town. He also denied that there may be any house of the plaintiffs contiguous to the house in suit and, consequently, contested even the right asserted in the suit which was accordingly set down to be tried on a total of 6 issues covering the questions of the locus- standi of the plaintiffs, their superior right of pre-emption, the existence of custom thereabout and the price and market value of the suit-house. Parties led their evidence on the basis whereof, trial Court held with reference to the deed Exh. P.7 (relating to the sale in suit) that the house of the plaintiffs adjoins the house in suit on its west and held under issue No. 3 that the plaintiffs have got a superior right of preemption on that score. It also found the existence of the custom of preemption to have been established on the basis of documentary evidence and the statement made by Atta Muhammad D.W. 4, as attorney of the vendee defendant. The sale price of Rs. 15,000/- was admitted as correct by the counsel for the plaintiffs and the trial Court decreed the suit in their . Favour by its judgment dated 25-3-1981.
2. An appeal thereagainst filed by the vendee had been assigned to an Additional District Judge who heard the arguments on 18-1-1984 and put the appeal off to 22-1-1984 for announcement of judgment and in the' 3 intervening days he purported to visit the spot for such reasons and in stich circumstances whereabout there is no indication available on the record, so much so that neither does any notice appear to have been ordered to issue to the parties for such a purpose nor was any issue in fact and he did not even record any note of his site- inspection and yet he proceeded to give findings on the basis of his alleged observation on the spot that-the house which the plaintiffs claim to have been owned by them is in fact in an area of about 2 marlas against the area thereof claimed by the plaintiffs be.5 marlas whereat exists a three-roomed house having only one main gate and a portion of this house had been sold by Nabi Bakhsh to one Abdull Aziz who, hence, could have the right of pre-emption but not Nabi Bakhsh or his sons. In consequence, he reversed the trial Court's finding under issue No. 2 and proceeded to decide even issue No. 3 against the plaintiffs by recording a finding, without assigning any reason at all, that no custom of preemption exists in Guli Sheikhan. In consequence, he accepted the appeal by his judgment dated 22-1-1984 and dismissed the suit of the plaintiffs who have now come up to this Court on revision.
3. There is no doubt that the impugned judgment recorded in the appeal below does not have the support of any evidence or material available on the record so far as issue No, 2 is concerned and, in addition to its being liable to be reversed as being merely conjectural, it is rendered unsustainable for the reason also that neither had the reasons stated by the trial Court been adverted to nor was the evidence existing on the record attended to by the appellate judge who also did not give any opportunity to the plaintiffs for contesting the correctness either of the premises or even of the reasons whereupon he intended to proceed and therein he clearly condemned the plaintiffs only unheard. Apart therefrom, his conclusion is simply irrational and rather suffers from perversity because the transfer merely of one room out of a house of 3, even if accepted as correct, would not per its own force destroy the right and title in the remaining house which has even in that event to still be regarded as an unbroken entity including the portion so transferred which can be considered a separate property only upon a partition by metes and bounds proved to have taken place between the owners of the joint unit of the house to separate off such a portion from the rest of the house. Since such was not the stand of the vendee nor is claimed even by the appellate judge below to have anywise been established before him, therefore, the qualification based on the contiguity of the house of the plaintiffs which is established on the basis of Exh. P.7, the very document of title of the vendee- defendant, does not get affected anywise even by the unlawful treatment given to the case by the Additional District Judge whose finding under issue No. 3 with regard to the absence of custom has to fall to the ground for his omission to give any reason in its support and his failure to advert to the documentary evidence existing on the record. Moreover, the question of the existence of the custom for pre-emption has been wrongly approached by him for the reason that under the provisions of Section 7 of the Act, it is the existence of such a custom in the town or a sub-division thereof which had to be considered by him and not with regard merely to a Gali or a Mohallah and in proceeding in the manner that he has, clearly he has misdirected himself in addition to disregarding the legal presumptions arising in favour of the existence of such a custom on account of antiquity of the Abadi and absence of proof with regard to its division into separate sub- divisions. The case reported as Karim Ahmad v. Rahmat Elahi and others (A.I.R. 1946 Lahore 432) Is the precedent in point. Superior right of preemption of the plaintiffs had been duly proved alongwith the existence of custom of pre-emption in the town of Wazirabad and the findings to the contrary recorded in the appeal below under issues No. 2 and 3 have resulted from grievous errors of jurisdiction and are, hence, not sustainable. They are accordingly set aside.
4. In result of the foregoing, this civil revision is accepted and the judgment as well as the decree passed in the appeal below on 22-1-1984 is set aside and those of the trial Court passed on 25-3- 1,981 are restored with costs throughout.