DHANI RAM SHAH Vs. BHAG DEI

JUDGEMENT

(1.) THIS seemingly simple but mysteriously com ­plex civil second appeal which is directed against the judgment and decree dated 16 -7 -1966 of the learned District Judge, Badarwah, whereby he affirmed the decree for possession of the suit land on the basis of the right of prior purchase has wended its way to this bench in the following circumstances. Devi Saran, respondent No. 2 sold land measuring 3 kanals and 9 Marias comprised in Khasra No. 1402. Khewat No. 1910 Min, situate in the town of Kishtwar in favour of Dhani Ram appellant in lieu of Rs. 4000/ - vide sale deed dated 1 -10 -1960. Smt. Bhag Dei, respondent No. 1 there ­upon instituted a suit for possession of the said land asserting inter -alia that she being the wife of and as such the lawful heir of the vendor was en. titled to a right of prior purchase in respect of the said land in preference to Dhani Ram appellant vender who was a stranger. The appellant resisted the suit not on the ground that the plaintiff -respondent had no right of prior purchase but on the ground that she hav ­ing assented to the sale in his favour was not entitled to enforce her right. Ir was further averred that the land being situate within the town area limits and having been purchased for the purpose of construction had lost its argicultural character. On the pleadings of the parties, the following issues were struck in the case.

(2.) THE contesting defendant i. e. Dhani Ram appellant examined Padam Nabh Amer Nath and Ram Lal while the plaintiff appeared as a witness on her own behalf. On a consideration of the evidence adduced in the case, the learned Sub Judge decree the suit holding that there was no evidence to prove that the plaintiff had waived her superior right of pre -emption and that though the land was situate in the town of Kishtwar there vas no evidence to show that it had ceased to be used as agricultural land. On appeal the learned District Judge, Bhaderwah, affirmed the findings recorded by the trial court and dismissed the appeal holding that the mere fact that the land in question was situate within the town area limits of Kishtwar was not sufficient to destory its character as agri ­cultural land and the same was governed by the provisions of Section 14 of the Right of prior pur ­chase Act The defendant thereupon preferred a further appeal to this court which came up before my Lord fehe Honble Chief Justice who by his order dated 13th December 1968 referred it to a full Bench as in his Lordships opinion the appeal raised substantial question of law of great public importance relating to the interpretation of sec. 14 and 15 of the Right of Prior Purchase Act, here ­inafter referred to as the Act and the view of the law expounded in the Judgment of the Board of Judicial Advisors reported in 10 J&K Law Reports 168 required reconsideration. On the matter coming up before the Full Bench consisting of Honble Chief Justice and my learned brothers Honble Bhat J. and Honble Anant Singh J., it decided to place the appeal for decision before a bench of five judges as its opinion it also involved the question as to the binding nature of the decisions rendered by his Highness Board of Judicial Advisors and this Bench was constituted in consequence. Appearing for the appellant Shri Ishwar Singh has contended that the land in question being situate within Town Area Limits of Kishtwar, it was urban immovable property within the meaning of Section 3 (3) of the Right of Prior Purchase Act and was, therefore, governed not by the provisions of Section 14 (as hold by the courts below) but by Section 15 of the Act. While elucidating his submission he has placed before us in Juxtaposition the definitions of the expression "Urban immovable property" as occuring in our local Act and as contained in the Punjab Pre -emption Act and has tried to impress upon us that agricultural land situate within the town area limits falls within the ambit of urban immovable property and is therefore, governed by Section 15 of the Act He has also referred to the recitals in the sale deed and contended that the land in question having been purchased for purpose of construction it cannot in any event be deemed to be agricultural land and must be treated as Urban Immovable Property and hence governed by Section 15 of the Act. He has further contended that the view of the law expresed by His Highness Board of Judicial Advisors in 10 J&K Law Reports 168, is neither correct nor has it any binding force after the 13th May 1954 i e. from the 4th of May, 1954, the date from which the jurisdiction of the Supreme Court was extended to the State of Jammu and Kashmir and the jurisdiction of the authority functioning as Privy Council in the State i.e. of His Highness Board of Judicial Advisors was abolished by means of the Constitution (Application to Jammu and Kashmir) order, 1954. He has in this connection drawn our attention to a single Bench decision of the Andhara Pradesh High Court reported in AIR 1955 Andhra Pradesh, 491.

(3.) SHRI S P Gupta, learned counsel for the respondent, has on the other hand, submitted that the land in question was agricultural and right of prior purchase in respect of argicultural land where ever situate is governed not by Section 15 but by Section 14 of the Act and the courts below were right in applying the said provision to the instant case. He has further submitted that the view of the law expressed by the Board of Judicial Advisors in 10 J.&. K Law Reports, 168, having been accepted by and merged in the Command Order of His Highness the same was binding on all courts in the State unless it was over -ruled by the Supreme Court. He has further contended that the said Command Order had the force of law and has to be followed until repealed or amended by an Act of Legislature. He has in this connection invited our attention to a Full Bench decision of the Assam High Court reported in AIR 1954 Assam 139. The crucial point for determination in this case is whether the sale of agricultural land situated within town area limits is governed by Section 14 or 15 of the Jammu and Kashmir Right of Prior Purchase Act No. 11 of 1993 (1963 A. D.) The determination of this question assumes importance because the line of preemptors in a case governed by Section 14 is different from that governed by Section 15 of the Act. While construing these Sections we have to keep in view the three cate ­gories of immovale properties as envisaged by the Act. These categories are "agricultural land" "village immovable property and urban immov ­able property." Let us now see the meaning assign ­ed to each one of the expressions by the Act. A reference to Section 3(1) of the Act would reveal that for the purposes of the Act, the definition of "agricultural land" as contained in the Jammu Alienation of Land Act of 1990 (now The Jammu and Kashmir Alienation of Land Act V of 1995 (1938 A. D.) has been adopted by the framer of the former Act The expression is defined in the latter Act as under: - "The expression "Land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes subservient to agriculture or for pasture and includes.