1. ' This appeal is directed against the judgment and decree of learned District Judge, Mirpur, dated 28-2-1998, whereby the appeal of the respondent-plaintiff was accepted and the judgment and decree passed by the learned Sub-Judge, dated 24-2-1997, was set aside.
2. ' The precise facts giving rise to the instant appeal are that the land measuring 30 Kanals comprising survey Nos.320/min present No,55 (15 Kanals 6 Marlas), 320/min present 55/2 (2 Kanals 14 Marlass), No,320/Min, present 55/1 (4 Kanals 13 Marlas), No,320/Min present 55/3 (7 Kanals 13 Marlas), Khewat No,17/1, Khatta No,52/62, 53/62/Min, situated in village Nakka Chan Shah, Tehsil Mirpur, was alienated by defendant No,1, to defendant No,2 in lieu of Rs,65,000. The appellant- plaintiff pre-empted the aforesaid sale-deed. He claimed the right of prior purchase on the grounds:---
(i) that he is co-sharer;
(ii) that he is owner in the village;
(iii) the land sold is adjacent to the land of the plaintiff and
(iv) plaintiff and vendor have common path.
3. ' After the trial, the learned Sub-Judge vide judgment and decree, dated 24-2-1997, decreed the suit.
4. ' Feeling aggrieved from the Judgment and decree of the learned Sub-Judge, the respondent filed an appeal before the learned District Judge, who accepted it and set aside the judgment and decree of the Trial Court. Resultantly, the suit was dismissed by the learned District Judge. The instant appeal has been filed against this judgment and decree of the said Court.
5. ' The learned counsel for the appellant contended that the learned District Judge has wrongly held that the respondent being the son of a displaced person, was entitle to exemption applicable to the displaced persons from the construction of Mangla Dam. He referred PLD 1982 Azad J&K 32, PLD
(sic) Azad J&K 7 and PLD 1976 Azad J&K 68, in support of his contentions.
6. ' While controverting the arguments of the learned counsel for the appellant, Haji Munsif Dad, the learned counsel for the respondent, strenuously argued that the plaintiff has no right of prior purchase against the defendant-vendee. He referred section 13 of the Right of Prior Purchase Act, 1993 B.K. (hereinafter to be referred as Act, 1993 B.K.), and submitted that section 13 contained that no person other than a member of the agricultural class, shall have a right of prior purchase in respect of agricultural land sold by another member of an agricultural class. He also submitted that a member of the agricultural class was defined in section 2(4) of the Act, 1993 B.K. According to the aforesaid definition, the meaning assigned to the agricultural class in J&K Land Alienation Regulations, 1990 BK, shall be construed as agricultural class. He further submitted that the J&K Land Alienation Regulations, 1990 B.K. Were repealed by the J&K Alienation of Land Act, 1995, therefore, the agricultural class defined in J&K Land Alienation Act, shall refer to section 13 of the Prior Purchase Act. While, emphasising on this point, he referred section 8 of the General Clauses Act and submitted that the agricultural class defined in J&K Alienation of Land Act, 1995 B.K., shall refer to section 2(4) of Azad J&K Right of Prior Purchase Act, 1993 B.K. It was next contend by the learned counsel that under section 6 of Azad J&K Alienation of Land Act, 1995 B.K., the agricultural class was defined through a Notification by the Council. It was also submitted by the learned counsel that the list of the agricultural class under section 6 of Jammu and Kashmir Alienation of Land Act, 1995 B.K., was notified. He referred the list and submitted that in District, Mirpur, Shaikhs were not included in the agricultural class, therefore, the plaintiff has no right to claim preemption.
7. He referred the Notification.
8. ' It was further submitted by the learned counsel that no doubt, the father of the respondent was displaced by the construction of Mangla Dam. He was displaced but he had died, therefore, the present respondent is a displaced person. He referred an unreported judgment of the Lahore High Court decided in Appeal No,148 titled "Muhammad Jamil v. Muhammad Iqbal etc." He also referred PLD 1981 SC 51 in support of his contentions.
9. ' I have heard the learned counsel for the parties, perused the relevant record and given my utmost muse to the respective arguments advanced by the learned counsel for the parties.
10. ' The ,primary question requiring determination in the instant case is that:--- "When J&K Land Alienation Regulation 1990 BK was repealed through Act, 1995 BK, then, the agricultural class defined in J&K Alienation of Land Act, 1995 BK shall refer to sections 3(4) and 13 of Right of Prior Purchase Act?
11. ' Section 13 of J&K Right of Prior Purchase Act (hereinafter to be referred as Prior Purchase Act) conveys that non-member of an agricultural class shall not enjoy the right of prior purchase against the member of agricultural class. For having true perception, I would like to reproduce section 13 of Right of Prior Purchase Act which is as under:--- "13. Limit of exercise of right in respect of land sold by member of an agricultural class:-- ' No person other than a person who was at the date of sale a member of an agricultural class shall have a right of prior purchase in respect of agricultural land sold by another member of an agricultural class".
12. ' The aforesaid provision clearly denotes that only a member of agricultural class can claim right of prior purchase against the other member of an agricultural class.
13. ' Now, the question arises that how the agricultural class shall be determined. The agricultural class was defined in section 3(4) of the Prior Purchase Act. It contained that the agricultural class means, the agricultural class defined in Jammu and Kashmir Alienation of Land Regulations, 1990 BK. I would like to reproduce section 3(4) of the Prior Purchase Act which reads as under:--- "Member of an agricultural class" and "agricultural classes" shall have the meanings assigned to them respectively in the Jammu and Kashmir Land Alienation Regulations of 1990 BK".
14. ' The aforesaid provision clearly conveys that the agricultural class means the agricultural class defined in J&K Land Alienation Regulations, 1990 BK. Now, we have to divert towards the "Jammu and Kashmir Land Alienation Regulations 1990". The aforesaid Regulations 1990 BK were repealed by the J&K Alienation of Land Act, 1995 BK and was replaced by the said Act, as it was provided in section 1(4) of J&K Alienation of Land Act, 1995, BK. The agricultural class was defined in section 6 of J&K Alienation of Land Act, 1995, BK.
15. ' Now, the next question emerges that when in section 3(4) of Prior Purchase Act, the agricultural class was defined as defined in Regulations, 1990 B.K., and these Regulations were repealed and replaced by the J&K Alienation of Land Act, 1995 BK, then the definition of the agricultural class provided in the J&K Alienation of Land Act, 1995 BK could be referred to the agricultural class provided in sections 3(4> and 13 of the Prior Purchase Act?
16. ' Section 38 of the General Clauses Act, postulates that where any Act is repealed or re-enacted, any reference to the repealed enactment shall be construed a reference to the re-enacted or replaced Act, unless a different intention appears. In the presence of section 8 of the General Clauses Act, any reference to the repealed Act, in any other piece of legislation, shall be construed as a reference to the re-enacted or replaced Act unless a different intention appears to be. I would like to reproduce section 8 of the General Clauses Act which is as under:-- "8. Construction of the references to repealed enactments (1) where this Act, or any (Central Act) or Regulations, made after the conferment of this Act, repeals, and re-enacts, with or without modifications, any provision of a former enactments to the provision so repealed shall, unless a different intention appears be construed as reference to the provisions so reenacted.
(2) Where before the Fifteenth day of August, 47, any Act of Parliament of the United Kingdom repealed or re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provisions so repealed, shall unless a different intention appears, be construed as references to the provision so repealed, shall unless a different intention appears to be construed as reference to the provision so reenacted."
17. ' The same like proposition arose before the Supreme Court of India in case titled "State of Uttar Pradesh v. M.P. Singh etc., reported in AIR 1960 SC (India) 569 and the Supreme Court held as under:--- "It is true that the reference in the definition by which clerical and other establishments of factories are included is to the Factories Act of 1934, but by virtue of section 8 of the General Clauses Act, X of 1897, it must be construed as a reference to the provisions of the Factories Act LXIII of 1948 which repealed the Factories Act of 1934, and reenacted it."
18. ' In the aforesaid case, the "Commercial Establishment" was defined in the Factories Act, 1934 but subsequently the Factories Act, 1934 was repealed and replaced by the Factories Act, 1948. It was held by the Supreme Court that any reference to the Factories Act, 1934 would be construed as a reference to the Factories Act, 1948.
19. ' The same view also finds support from PLD. 1982 Lahore 729 relevant page 469 which is as under:- -- "Reference in any other enactment or in any instrument to the provisions so repealed unless a different intention appears, is to be construed as references to the provisions so reenacted".
20. ' The same view further finds support from AIR 1959 Punjab 291 relevant page 293 which is as under:-- "There is no doubt that the provision contained in section 107 of the 1915 Act was repealed by the 1935 Act and section 224 of 1935 Act has been repealed by Article 395 of the present Constitution and the provision has been re-enacted in Article 227 with modifications. It, therefore, follows that reference to section 107 of the 1915 Act in Clause 10 of the Letters Patent must be construed as reference to Article 227 of the Constitution."
21. In the aforesaid reports, it was held by the Courts that where a reference was given of a particular enactment which was repealed subsequently and replaced by some other enactment, then, the reference should be construed as reference to the subsequent reenacted Act.
22. ' In the instant case, the definition of the agricultural class provided in section 3(4) of Prior Purchase Act, was as defined in Regulations 1990 BK. The Regulations of 1990 BK were repealed and replaced by J&K Alienation of Land Act, 1995 BK, thus, the definition of the agricultural class provided in J&K Alienation of Land Act, 1995 BK, shall be construed, as referred in sections 3(4) and 13 of the Prior Purchase Act.
23. ' Section 6 of the J&K Alienation of Land Act, 1995 BK, contained the definition of the agricultural class which is as under:-- "Agricultural classes.--The council shall, by notification, in the J&K Government Gazette, determine what persons or classes of persons in any district or group of districts are to be deemed to belong to agricultural classes for the purposes of this Act."
24. ' According to the aforesaid provision, the agricultural class was defined by a Notification in Jammu and Kashmir Gazette by the Council on June 20, 1939 which is as follows:--- AGRICULTURAL CLASSES OF JAMMU AND KASHMIR STATE (Council Order No,546/C of 1939)
25. ' Subject: -Revenue Minister's Memo. No . S688, dated 28th November, 1939, regarding notification of agricultural classes under the consolidated Jammu and Kashmir Alienation of Land Act of 1995.
26. ' It is ordered that the consolidated list of agricultural classes forming an annexure to this order be notified in the Government Gazette as required under section 6 of the Jammu and Kashmir Alienation of Land Act No,V of 1995.
27. ' By order in Council.
28. ' R-XXXI, Sd/- ' 20th June, 1939. No, Gopalaswa mi, ' Prime Minister.
29. ' (Annexure to Council Order No,546/C).
30. ' LIST OF AGRICLLTURAL CLASSES IN THE KASHMIR PROVINCE UNDER SECTION 6 OF ACT.
31. KASHMIR VALLEY.
(1) Sarswa t Brahmins recorded in the Census as Kashmir Pandits-State subjects, excluding---
(1) Bazaz, (2) Bagati, (3) Bonyu, (4) Bohru (Attar), (5) Cherev, (6) Channa, (7) Choudri, (8) Chiken,
(9) Dasi, (10) Gurtu Seraf of Sringar, (11) Hashia, (12) Jad, (13) Kashwa, (14) Kantru, (15) Kothidar (Koul in Sringar, (16) Mantu, (17) Manwal, (18) Photographer (Kampasi), (19) Punjabi, (20) Padar, (21) Pattu,
(22) Shair, (23) Shesh, (24) Saraf, (25) Saqqi, (26) Sultan, (21) Teng, (28) Tangan, (29) Zarrow, (30)
32. Owapha, (31) Khardori .
(2) Other Kashmiri and non-Kashmiri Hindus State subjects excluding---
(1) Mahajan, (2) Bhabra, (3) Arora, Khatri, (5) Kayasth, (6) Jhiwars.
(3) Kashmiri and non-Kashmiri Sikhs--State Subjects encluding Sikh money-lenders of---(1)
33. Pattan, (2) Bandipur, (3) Aramullah, (4) Sopore, (5) Anantnag, (6) Shpian and (7) Srinagar.
34. ' Kashmiri Mohammadans and nonKashmiri Mohammadans (including Shias and agriculturist Hanjis) State Subjects, excluding---
(a) Muhammadans: Agu, Alaqband, Attar, Basru, Bakal, Bazaz, Bichu, Bachh, Baldev, Baqaya, Bed, Chak, Chanak, Chichru, Chikan, Chini, Baqal, Chaddah, Chlak Dalal, Drabi, Dabagh, Dayak, Dev, Darrow, Barel-Kothidar, Guzarban, Hargah, Hafiz, (non-Kashmiri), Kummoo, Kantroo, Kuchru, Kawosah, Kak, Katal, Khoja (non-Kashmiri), Khan (non-Kashmiri) Kinah, Kocchik, Kishu, Kathz, Kala (Kothidar) Mam, Mariku, Moon, Mashki, Manjikhal, Maharza, Nanwai, Pattigaru, Purazagar, Qasab, Sowdagar, Siraj, Said-maker, Shopu, Shadad, Sarat, Shalu, Shawlbaf, Tufangsaz, Taj, Tarfrosh, Tak, Thug, Tabardar, Watth Zainpuri and Pakhtuni of Ganderball Illaqa (Criminal Tribe).
35. Explanation:--(i) "Non-Kashmiri Khoja", Kashmiri Khan" Non-Kashmir, Hafiz means nonhereditary State Subjects of the first class.
(ii) "Khawaja" and "Khoja" are two distinct terms, the former representing title of respect and the latter refering to a non-agricultural class. These should not be confused with each other.
(iii) To clear certain doubts, it is pointed out that Wat Lohar, Ganais, Khans and Hafiz (Ist Class hereditary State subject), Kullo and Muslim Bakhshi are not non-agriculturist in the Kashmir Valley.
(b) Non-Agricultural and money lenders Hanji Class Anitu, Bagav, Bilaw, Balru, Bohru, Papri (Thag), Bathi, Hanji, Basu, Batwa, Bachlu, Chhadilu, Chth, Chontu, Drabu, Doshaba, Dag, Digoo, Dullo, DagHanji, Dagseru, Der-Hanji, Fafa, Tateng, Gooru, Gadd GadehHanji, Ganju, Gasi, Ghani, Gashru, Gilloo, Goglu, Conchu, Gargru, Gangu, Galah, Haroon Hindu, Janda, Khan Hanji, Khuru, Karnawi, Kakpuri, Kanji, Khundroo, Khur, Kalawithu, Kalu, Kachlu, Kamrazi Khutru, Kalash; Lichu, Lattu, Makru, Mandu, Mandij I , Matta-Hanji, Matta, Mar, Miskeen, Mahajan, Mandlu, Nath, Narwari, Nav, Narachur, Pattha, Pulaw, Rah, Rawaloo, Salaru, Shakru, Sumji, Sangram, Shagoo, Shigan, Turri, Trambu, Vachku, Vaid Vangnu and Vandku.
36. MUZAFFARABAD WAZARAT.
(1) Kashmiri Hindus and Non-Kashmiri Hindus State Subjects excepting--- ' Burhoo and all those stated as exceptions under parts 1 and 2 of Kashmir Valley.
(2) Kashmiri Mohammadans and NonKashmiri Mohammadans--hereditary State Subjects Ist Class excepting:--- ' Banjara, Teli, Julaha, Khoja, Zargar, Qasab, Ganai, Minganoo, Trumba, and those stated as exceptions under part 4 of Kashmir Valley.
(3) Kashmiri Sikhs and Non-Kashmir Sikhs State Subjects excepting-- ' Sikh-money lenders of Rui, Rampur, Mohera, Salamabad, Upi, Chakothi, Chinari, Hatyan, Dopatta, Ghari, Domel, Muzaffarabad, Baramula and Teetwal.
37. LIST OF AGRICULTURAL CLASSES IN THE JAMMU PROVINCE UNDER SECTION 6 OF THE ACT.
(1) Schedule ' District Classes.
38. ' Jammu(1) Brahmans, (2) Rajputs including Thakkars, 3, Lobanas, (4) Saini, (5) Megh, (6) Sau Muslamans, including salahrias, Manhas, Chibs, Bhaoos, (7) Gujjars, (8) Syed, (9) Jats, (10) Awans,
(11) Pathans, (12) Arains, (13) Harni, (14) Teli, (15) Jogi, (16) Sadh Beragi, (17) Chamar, (18) Lohar, (19)
39. Tarkhan, (20) Doom (Mahasha) and Batwal.
40. ' Mirpur (1) Rajputs including Thakkars, (2) Brahmans, (3) Megh and Basiths, (4) Lobanas, (5)
41. Gujjars, (6) Qureshis, (7) Jats, (8) Awans, (9) Sau Muslamans including Kalotref Maghral, Gakhar Jaral, Dudial, Khakrols, Sohlan, Sudhan, Mahleh, Narmas, Bhaoo, Chib, Demal, Manhas, Salahria, Kul, Chandral, Parmisial, Jandial, Janjuas, Kaharwal, Janhals, (10) Bains, (11) Arains (Malyars), (12)
42. Mughals, Pathans, (14) Maliks and Kakezais, (15) Syed, (16) Jhumat, (17) Harrars, (18) Bhatti and Bhatteys, (19) Gag, (20) Lohar, (21) Tarkhan, (22) Jogi, (23) Chamar, (24) Doom, Barwalas, (25)
43. Muslim Kherar Khatries of Bhimber Tehsil, (26) Khokhar).
44. ' Kathua(1) Rajputs including Thakkars, (2) Brahmans, (3) Saini (4) Gaddis, (5) Meghs, (6) Lobanas,
(7) Gujjars, (8) Jats, (9) Kashmiri Musalmans other than Khojas, (10) Arain, (11) Teli, (12) Doom (Mahasha), (13) Lohar, Tarkhans, (15) Julah and Koli, (16) Sipis, Barwalas, Saryaras, Batwals, Jogis, and Beldars.
45. ' Reasi (1) Brahmins, (2) Rajput including Thakkars, (3) Meghs including Tahars and Basiths, (4)
46. Lobanas, (5) Gujjar, (6) Jarals, (7) Kashmiris (other than Khojas) (8) Jats, (9) Sau Musalmans including Khokhar, Manial, Domial, Bhatti and Jaral, (10) Doom, (11) Chamar, (12) Tarkhan, (13) Lohar,
(14) Malik Rajputs of Tehsil Rajouri.
47. ' Udhampur. (1) Rajputs including Thakars, (2) Brahamass, (3) Meghs, (4) Gaddies, (5) Bohds, (6)
48. Gujjars, (7) Kashmiri Muslmans, (other than Khojas) (8) Sau Musalmans, including Chundels, (9)
49. Pathans, (10) Koli, (11) Jogi, (12) Lohars, (13) Tarkhans, (14) Chamars, (15) Doom (Mohasha), (16) Jats of Ramnagar Tehsil, (17) Arains.
(2) All persons who have obtained certificates of being hereditary agriculturists up to the end of Samvat year 1984 under the provisions of the Ailan of the Revenue Department No,10 of 25th Bhadon, 1972 shall be deemed to belong to agricultural classes for the purposes of this Act."
50. In the present case, the land in dispute is situated in district Mirpur. The caste of the pre-emptor is Shaikh. Shaikhs are not included in the agricultural class in district, Mirpur, while the vendor is Gujjar by caste and the vendee is Jat by caste, and both are included in the agricultural class. In the instant case, the land in dispute was sold by a member of agricultural class to another member of the agricultural class. The preemptor does not belong to the agricultural class, therefore, he has no right of prior purchase under section 13 of the Prior Purchase Act.
51. ' As the contention of the learned counsel for the appellant is concerned that respondent being a son of displaced person from the construction of Mangla Dam, was not entitle to any exemption, it has substance. The learned counsel for the respondent referred unreported Judgment of Lahore High Court titled "Muhammad Jamil v. Muhammad Iqbal etc." I have gone through the judgment.
52. This case was disposed of through a short order. Even the judgment did not contain the facts of the case. Thus, this judgment has no bearing on the facts of the present case. The exemption was only provided to the persons who have been displaced from the construction of Mangla Dam. The respondent was not displaced directly by the construction of Mangla Dam. If, at all, his father was displaced by the construction of Mangla Dam, then, he could not claim the exemption available to his father.
53. The crux of the above discussion is that the appellant-plaintiff has no right of prior purchase as he does not belong to the agricultural class, as provided in section 13 of the Prior Purchase Act. Thus, this appeal has no force, it is hereby dismissed.