1. KHAWAJA MUHAMMAD SHARIF C J.-This is an appeal against the judgment of the learned Single Judge of this Court dated 14-11-71 by which the plaintiff's appeal against the appellate judgment and decree of the District Judge, Muzaffarabad, dated 4-5-1971 was dismissed with costs.
2. The facts giving rise to this civil appeal are that Omar Din brought a suit in the Court of the Additional Sub-Judge, Muzaffarabad, against Abdul Karim on the basis of the right of prior purchase claiming that his land was contiguous to the suit land. The learned Sub-Judge decreed the plaintiff's suit holding the property, the subject of pre-emption, to be 'urban immovable property'. On appeal by Abdul Karim the learned District Judge of Muzaffarabad set aside the judgment and decree of the trial Court holding that the property was "agricultural land" and not "urban immovable property" and, therefore, gave -no right of prior purchase to the plaintiff on the ground of contiguity. Omar Din then came up in appeal to the High Court and the learned Single Judge of this Court dismissing his appeal held the property to be "agricultural land" and not "urban immovable property". He has now come up in second appeal before the Division Bench.
3. The only question involved in this appeal is whether the suit land is "agricultural land" and, therefore, the right of prior purchase is governed by section 14 of the Jammu & Kashmir Right of Prior Purchase Act or whether it is "urban immovable property" and, therefore, the right of prior purchase is governed by section 15. Mr. Farooqi, learned counsel for the plaintiff---appellant, has pointed out that there is a difference in the definition of `urban immovable property' as given in the Punjab Pre-emption Act and the Jammu & Kashmir Right of Prior Purchase Act. Section 3, subsection (3) of the Punjab Pre-emption Act defines 'urban immovable property' to mean immovable property within the limits of a town, other than an agricultural land whereas in the definition of 'urban immovable property' as given in the Jammu & Kashmir Right of Prior Purchase Act the words `other than agricultural land' are missing Learned counsel argued that this omission was pertinent and was meant to include all sorts of immovable property whether agricultural or otherwise in the definition of the term 'urban immovable property'. Learned counsel argued that consequently the right of prior purchase would be governed by section 15 of the Right of Prior Purchase Act and not by section 14 as has been held by the Courts below.
4. The learned District Judge wrote in his judgment that the suit land was situate within the limits of village Ranjata which -had been included within the municipal limits of Muzaffarabad. Town by a Government Notification and that the land retained its character as an agricultural land in spite of its inclusion within the municipal limits of Mazaffarabad Town. The learned District Judge, therefore, held that the right of prior purchase in respect of the suit land would be governed by section 14 and not by section 15 of the Right of Prior Purchase Act. Learned counsel for the respondent referred to a citation in the Commentary on the Punjab Pre-emption Act by Sardar Muhammad lqbal Khan Mokal. In the commentary under section 3 it is written that: "The mere fact that the local Government has included an area within the limits of a municipality does not change the character of the land, the situation of land is immaterial so Tong as agricultural character is retained."
5. Section 3 of the Jammu & Kashmir Right of Prior Purchase Act, 1993-Bikrimi defines 'agricultural land' to mean land as defined in the Jammu & Kashmir Alienation of Land Act but not to include the right of a mortgagee whether usufructuary or not in such land. "village immovable property" has been defined to mean immovable property within the limits of a village other than agricultural land and 'urban immovable property' has been defined to mean 'immovable property' within the limits of a town. Section 2, subsection (2) of the Jammu & Kashmir Alienation ofLand Act, 1995-Bikrimi, defines land asunder: "The expression 'land' means land which 9s not occupied as: the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture."
6. According to this definition agricultural land would mean 'land' which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or purposes subservient to agriculture or for pasture. So land if it is not occupied as the site of any building whether in a town or villager is "agricultural land" provided it is occupied for purposes as-- enunciated in section 2, subsection (2) of the Jammu & Kashmir Alienation of Land Act.
7. The Jammu & Kashmir Right of Prior Purchase Act divides all immovable property into three categories s
(i) agricultural land ;
(ii) village immovable property ; and
(iii) urban immovable property.
8. The right of prior purchase with respect to agricultural land and. Village immovable property is given in section 14 while the right of prior purchase with respect to urban immovable property is given in section 15 of the Right of Prior Purchase Act. The. Right of prior purchase under section 14 is based on the customary law and is given to the heirs and collaterals and the proprietary body whereas the right of prior purchase under section 15 Is, based on the Muhammadan Law of Pre- emption and is given not to the heirs or the collaterals or the proprietary body but to the neighbours so that they can avoid an unpleasant man who, happens to purchase property contiguous to theirs. From the scheme of the Act itself it is apparent that the Legislative Authority did not mean to treat "agricultural land" on par with "urban immovable property." The absence of the words 'other --than agricultural land' in the Jammu & Kashmir Right of Prior Purchase Act but which figured in the definition given in the Punjab Pre-emption Act, to us makes no difference. Our opinion is that these words were unnecessary and the right of prior purchase in respect of agricultural land would have been governed by section 14 of the Right of Prior Purchase Act even If the words 'other than agricultural land' had been or had not been used in the definition of urban immovable property.
9. Section 14 of the Jammu & Kashmir Right of Prior Purchase Act provides that subject to, the provisions of section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest in the persons enumerated therein while under section 15 the right of prior purchase in respect of urban immovable property shall vest in the persons enumerated therein. The Act itself makes it clear that the right of prior purchase in respect of "agricultural land" is to be, governed by section 14 and not by section 15. We hold that agricultural land if it is not occupied as the site of any building whether in a town or village and is used for purposes of agriculture is a class by itself and is governed by section 14 and not by section 15. The absence of the words 'other than agri--cultural land' in the definition of 'urban immovable property' would not turn agricultural land into urban immovable property. We are supported in our view by a judgment of the J & K High Court reported as 7 J & IG L R 162 which lays down that "section 14 of the Right of Prior Purchase Act does not exclude agricultural land even if it is urban".
10. The appeal fails and is dismissed with costs.