KAMALESWAR SINGHA Vs. BIJOLI BHATTACHARYA AND OTHERS

JUDGEMENT

(1.) This Rule is directed against the order dated July 17, 1978 passed by the learned Additional District Judge, 5th Court at Midnapore in Misc. Appeal No. 43 of 1978 affirming the order No. 27 dated Jan. 31, 1978 passed by the learned Munsif, Second Court, Midnapore in Misc. Case No 60 of 1975. The petitioner made an application for preemption of .03 acre of land being the eastern portion of plots Nos. 551 and 552 appertaining to Revisional Settlement Khatian No. 29 within Mouza Dhekia, P S. Kharagpur in the district of Midnapore. The plaintiff based his claim for pre-emption on the ground that the plaintiff was a co-sharer in respect of the holding in question and the plaintiff also held contiguous to the land in respect of which the said right of preemption was made. The trial Court on consideration of the materials on record and evidences adduced by the parties came to the finding that the petitioner was not a co-sharer because he had purchased some land in the holding in question prior to the vesting of estates under the West land Bengal Estates Acquisition Act, 1953 and the petitioner was also not entitled to claim for pre-emption on the ground of vicinage because the in question was not an agricultural land but a non-agricultural land and as such the same was not 'land' within the meaning of the Land Reforms Act. In that view of the matter, the trial court held that an application for pre-emtion under section 8 of the West Bengal Land Reforms Act was not maintainable and the said application for preemption was dismissed by the trial court. The pre - emptor petitioner thereafter preferred an appeal being the said Misc. Appeal No. 43 of 1978 pending in the 5th Court of the learned Additional District Judge, Midnapore and as aforesaid the learned Additional District Judge dismissed the said appeal and affirmed the order of the learned Munsif rejecting the application for pre-emption. It, however, appears that the Court of Appeal below held that the land in question was an agricultural land but the Court of Appeal below held that although it was an agricultural land the petitioner was not entitled to pre-emption on the ground of vicinage and the right of pre-emption on the ground of vicinage under section 8 of the Land Reforms Act can be made if a person holds not any portion of the land sought to be pre-empted, but & different land contiguous to the land in question.

(2.) Mr. Saktinath Mukherjee, the learned Counsel appearing on behalf of the petitioner submitted that the court of appeal below having come to the finding that the land in question was an agricultural land, it should have allowed the application for pre-emption because admittedly the pre-emptor petitioner was owner of a portion of the plots in question. Mr. Mukherjee submitted in his usual fairness that homestead ipso facto will not determine the question as to whether the land is agricultural or non - agricultural. Mr. Mukherjee contended that if a person holds any land for agricultural purpose and also holds a homestead then such homestead of a person holding any land for agricultural put pose is an agricultural land. Mr. Mukherjee submitted that it has not been found by any of the Courts below that the petitioner does not hold any land for agricultural purpose. It has only been held by the trial court that the lands in question were not held for agricultural purpose but such land consisted of structures meant for residential purpose. Mr. Mukherjee submitted that a house for residential purpose is not an agricultural land ordinarily but if a raiyal holds other lands for agricultural purpose and also holds a plot comprising his homestead then the said homestead becomes an agricultural land, although the dwelling house and the lands appertaining thereto as such are not actually utilised for cultivation. Mr. Mukherjee in this connection referred to a Bench decision of this Court made in the case of Khantamuyee Vs. Rukmini, reported in 48 CWN at page 759. It was held in the said decision that lands actually used for raising by cultivation food grains, vegetables and fodder as also other marketable commodities such as jute, hemp, cotton, lac, etc.; lands lying unused but capable of being used for the above purposes ; lands used for purposes accessory to cultivation, e.g , the thrashing floor and irrigation tanks; lands containing cattle sheds and sheds for ploughs, etc ; lands used for orchards or for farming purposes ; i.e., raising or feeding of cattle or other live - stock ; pathways, khals, nullas serving the agricultural lands and sites of dwelling houses of cultivators are agricultural lands for the purposes of Item No. 21 of List II of the Government of India Act, 1925 but dwelling houses other than those used for the residence of cultivators or farmers ; lands which are being actually used for raising minerals; lands covered by forest : Debasthanas and possibly lands used for planting trees for the purposes of fuel are non-agricultural lands. It was also held that "Dwelling house" would include adjacent buildings or outhouses, curtilage, garden, courtyard, orchard within the compound of the house and all that is necessary for the convenient use thereof. Relying on the aforesaid decision, Mr. Mukherjee contended that there is no material which establishes that the pre-emptor petitioner does not hold any land for agricultural purpose. On the contrary the interest relating to the land in question was recorded as that of a raiyats sithiban. Accordingly it must be held that it was an agricultural land. Mr. Mukherjee also contended that actual user of land on the date of vesting must determine the nature of the land under the West Bengal Estate Acquisition Act. It is immaterial as to for what purpose the land was settled earlier and the legal principle that the purpose of original settlement of the land will govern the nature of the tenancy has undergone a change because of the provisions of West Bengal Estates Acquisition Act, 1953. It is the actual user of the land on the date of vesting which will determine the nature of the land, namely, whether the land is agricultural or non-agricultural under the West Bengal Estates II Acquisition Act. For this contention Mr. Mukherjee referred to the decision of this Court made in the case of Mishri Shaw Vs. Belur Nikunjamayee Gadar, reported in 1978 (1) CLJ at page 532. Mr. Mukherjee also referred to another Bench decision of this Court made in the case of Ram Kumar Kojaria Vs. Messrs. Chandra Engineering (India) Ltd. reported in 76 CWN at page 426. It was held in the said decision that Sec. 2(10) of the West Bengal Land Reforms Act defines the term 'Raiyat'. 'Raiyat' means a person who holds land for purposes of agriculture. It is clear from the definition of the term 'Raiyat' that the only test whether a person is a raiyat or not is the purpose for which the land was settled. If the purpose for which the settlement was made is agricultural purpose, p the person in whose favour such settlement was made, is raiyat. On the other hand if the purpose is other than agricultural purpose for which the land was settled, in that case, the settlement cannot be said to be a raiyati settlement and the person in whose favour the settlement was made cannot be regarded as a raiyat within the meaning of Sec. 2(10) of the Act, even though the land is actually used for agricultural purpose. Cultivation of the land or actual user of the same for agricultural purpose by a co-sharer raiyat is not a condition precedent for enforcing the right of pre-emption under section 8(1) of the Act. Relying on the aforesaid decision Mr. Mukherjee submitted that the right of pre-emption will not depend upon the actual user of the land but the purpose for which the land was settled. Mr. Mukherjee submitted that it will appear from the revisional record of rights that the interest recorded in respect of the said land was that of a raiyat sithiban which indicates the purpose of settlement of the land in question. Accordingly even assuming that the land was a bastu land comprising structure thereon it cannot be held that it was not a raiyati land and as such it is not an agricultural land within the meaning of the Land Reforms Act.

(3.) Mr. Monomohan Mukherjee, the learned Counsel appearing for the opposite party however submitted that the pre-emptor himself deposed in the proceeding and had admitted that the plots appertaining to the holding in question do not contain any agricultural land and in view of such clear admission made by the pre-emptor, it must be held that the lauds appertaining to the holding in question are non-agricultural lands and the trial court was quite justified in holding that the lands in question are non-agricultural lauds and as such section 8 of the Land Reforms Act was not attracted in the facts of the case. Mr. Mukherjee submitted that the Court of appeal below did not consider the intrinsic evidence on record but held that the land was agricultural land simply because the interest was recorded in the Revisional Record of Right as that of a Raiyatf Sitluban. In this connection Mr. Mukherjee referred to a decision of this Court made in the case of the Eyachhin Ali Naskar and Anr. Vs. Gopal Gazi reported in 83 CWN at page 87. In the said case the right of pre-emtion in respect of a land comprising the bastu with hut standing thereon was taken into consideration by this Court. The interest of the tenant in respect of the land was recorded as that of Raiyati Sithiban as in the instance case. But S.K. Datta, J. held that under the West Bengal Land Reforms Act, raiyat has been defined as a person who holds for the purpose of agriculture. When a raiyat, who holds land for purpose of agriculture, has also homestead in such holding, in such a case, a homestead will be agricultural land. But in case where the holding is recorded as bastu and, the non-agriculture user is evident as appearing from the Revisional Record of Rights wherein it has been abated that there are two huts standing thereon, the land cannot be treated as agricultural lands to which the provisions of the Land Reforms Act will be applicable inasmuch as the Land Reforms Act applies only to agricultural lands. It was also held by His Lordship that under Sec. 8 of the Land Reforms Act if a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, it is liable to be pre-empted under certain conditions by a co-sharer raiyat or by a raiyat possessing land adjoining such holding. The right of preemption is thus confined to portion or share of a holding of the raiyat and not to any other kind of holding. Relying on the aforesaid decision Mr. Monomohan Mukherjee submitted that in the instant case it will appear from the Revisional Record of Rights that the land is a Bastu land and there are residential structures on the said land and non-agricultural user is manifest from the nature of the land recorded in the Revisional Record of Rights Mr. Mukherjee submitted that under certain circumstances the homestead may become agricultural lands if within the holding in question there are lands used for agricultural purpose or used in connection with agriculture but in the instant case the pre-emptor himself has stated in his evidence to the effect that lands appertaining to the holding in question are not used for agricultural purpose. Mr. Mukherjee submitted that a Bastu will not ipso facto become a homestead within the meaning of the Land Reforms Act and as such an agricultural land simply because the person holding a share in the bastu also holds land in some other holding for agricultural purpose. Mr. Mukherjee also submitted that is the user on the date of vesting which will determine the nature of land for the purpose of West Bengal Estates Acquisition Act as was held by this Court in the aforesaid case of Mishri Shaw. Mr. Mukherjee submitted that in the facts and circumstances of the case when admittedly no land appertaining to the holding in question was used for agricultural purpose the land in question cannot be held to be an agricultural land and as such the application for pre-emption under Sec. 8 of the Land Reforms Act must fail and no interference is called for in this Rule.