KLNURAM SADHUKHAN Vs. HAZI MD YUSUF

JUDGEMENT

(1.) THE order that is challenged in this case is one for preemption under section 24 of the West Bengal Non-Agricultural Tenancy Act (West Bengal Act XX of 1949) made by the Second Munsif at Baruipur and affirmed on appeal by the Sixth Court of Subordinate Judge, Alipur, and the petitioner before us is the objector. The facts which are undisputed are these: On August 8, 1955 the petitioners Kinuram and his wife sold the lands in dispute together with the structures standing thereon to opposite party No. 2, Monohar Chandra Dass. . Simultaneously with the execution of the conveyance Monohar executed an agreement of reconveyance by which he agreed to recovery the property to the petitioners provided the petitioners repaid the consideration money together with interest within a certain period. In pursuance of this agreement the petitioners repaid the stipulated amount to Monohar who in his turn executed deeds of reconveyance in favour of the petitioners on September 28, 1955. On December 7, 1955, opposite party No. 1 Hazi Mahammad Yusuf filed an application for pre-emption under section 24 of the Non-Agricultural Tenancy Act making the necessary allegations under that section. This claim was resisted by the petitioners Kinuram and his wife on the ground that his tenancy is governed by the Bengal Tenancy Act, and as such the Non-Agricultural Tenancy Act has no application; that on the date of the application for preemption the transfer in favour of opposite party No. 2 Monohar, was not in existence, because it had been wiped out by the reconveyance executed by Monohar in favour of the petitioners long before the filing of the application for pre-emption; that the opposite party No. 1 being an intermediary within the meaning of the West Bengal Estates Acquisition Act his interest had vested in the State of West Bengal, and as such he was not the petitioners' immediate landlord within the meaning of section 24 of the Non-Agricultural Tenancy Act. Two other minor points were also raised by the petitioners but it is not necessary to state them for the purposes of the present Rule. All the points raised by the petitioners have been overruled by both the courts below and the application of the opposite party No. 1 has been granted and against the concurrent orders of the courts below the petitioners have obtained this Rule.

(2.) MR. Apurbadhan Mukherjee appearing in support of the Rule has pressed all the points raised by the petitioners in the petition of objection. The first point relates to the applicability of the Non-Agricultural Tenancy Act. According to the petitioners their tenancy is governed by the Bengal Tenancy Act whereas according to the opposite party No. 1 the tenancy is governed by the Non-Agricultural Tenancy Act. The land which forms the subject-matter of the tenancy has been found to be chandina or bazar land; but the status of the opposite party No. 1 has been recorded in the record-of-rights as that of an occupancy raiyat and the interest of the opposite party No. 2 (Monohar) has been recorded in the recent revisional survey records as a korfa tenancy. The lower appellate Court accepts these entries as correct and observes:-

(3.) THE learned Subordinate Judge has held that if an occupancy raiyat grants a sub-lease in respect of a portion of his holding for non-agricultural purposes the sub-lease will not be governed by the Bengal Tenancy Act but by the Non-Agricultural Tenancy Act. It is the legality of this view that is the subject-matter of the first point. Section 5 (2) of the Bengal Tenancy Act defines a "raiyat" as "primarily a person who has acquired a; right to hold land for the purpose of cultivating it by himself or by the members of his family or by servants or laborers or with the aid of partners. . . . . . . . . . . . ". The essence of a raiyati lease is, according to this definition, cultivation and the purpose of the lease is the sole determining factor on the question whether a person is a raiyat. The definition of an under-raiyat as given in section 4 (3) is a tenant "whether holding immediately or mediately under raiyats". It is remarkable that though the purpose at the lease is the all important factor in determining whether a. person is a raiyat there is no reference to the purpose of the lease, in the definition of an under-raiyat. In order to be an under-raiyat the only thing that is necessary according to the definition is that he should hold "immediately or mediately under a raiyat", the purpose of the lease being wholly immaterial. Consequently a sub-lease granted by a raiyat for non-agricultural purposes is as much an under-raiyati tease within the meaning of section 4j (3) of the Bengal Tenancy Act as a sub-lease granted for agricultural purposes. In other words, if the head-lessee be a raiyat the under-lessee will be an under-raiyat under the Bengal Tenancy Act, no matter whether the under-raiyat holds the land for agricultural or non-agricultural purposes. This view has been consistently held by this Court ever since the year 1904 when Babu Ram's case (1) (8 C. W. N 454) was decided. In the last reported decision on this point in the case of Arun Kumar v. Durga Charan (2) 45 C. W. N. 805, Mukherjea and Roxburg, JJ. struck a discordant note but in view of the fact that the definition of under-raiyat had not been altered by the legislature in spite of numerous amendments of the Bengal Tenancy Act in other respects, they followed the principle laid down in Babu Ram's case (1 ). If the principle of these decisions be applied to the facts of the present case there is no escape from the conclusion that the petitioners are under-raiyats as defined by section 4 (3) of the Bengal Tenancy Act not withstanding the fact that they hold the land for non-agricultural purposes. The learned Subordinate Judge has relied on the case of Munshi Alauddin (3) 41 C. W. N. 1001, decided by Henderson and Biswas, JJ. where it was held that if the initial letting be for non-agricultural purposes, e. g. collection of rents, the Bengal Tenancy Act has no application in spite of the; fact that the land is agricultural land. This case has no bearing on the status of an under-lessee of a raiyat and is wholly irrelevant for the purpose of determining the status of the petitioners Mukherjea, J. in Arun Kumar's case (2) also distinguished Munshi Alauddin's case (3) on this ground.