RAJ KUMAR MONDAL Vs. SHIB CHANDRA MONDAL

JUDGEMENT

(1.) This Rule raises an interesting question with regard to the construction of Section 182, Ben. Ten. Act, as amended. There was a cultivator of the name of Sonatan Rai Bashia and he had a holding in a certain village, In the same village he held a homestead otherwise than as part of his holding. He transferred that homestead to the petitioners before me. The landlord of the homestead has applied to the Munsif to enforce the right of preemption which is given to landlords in the case of transfers of occupancy holdings by Section 26-F, Ben. Ten. Act. The opposite parties maintain that by reason of Section 182, where a raiyat or an under-raiyat has both a holding and a homestead in the same village all the incidents of the holding are attached to the homestead.

(2.) The learned advocate who has appeared in support of the Rule argues that, even if this is so, there is nothing on the record to indicate what is the nature of the holding held by the deceased transferee. On the other hand I have been referred to the record and for the purposes of my decision I will observe it that the exhibit to which I have been referred proves that the holding is an occupancy holding. The learned Munsif has hold that by reason of Section 182, the opposite parties are entitled to enforce the right of preemption given them in the case of an occupancy holding by Section 26-F. It therefore becomes necessary to examine the language of Section 182. As I have said the learned advocate who has appeared to show cause, maintains that the effect of the section is that the position of the raiyat or under-raiyat with regard to homestead is regulated by his position with regard to his holding in the same village, I agree that the construction would seem to be in accord with the policy upon which Section 182 appears to be based, but my difficulty is that I cannot get that construction out of the language of the section because the section makes the position of the raiyat or the under- raiyat with regard to the homestead dependent not upon his position with regard to his holding, but upon the stains of the landlord of the! homestead. There is no evidence in this case as to the status of the landlord and I feel quite unable to find any justification in the section for saying that the right of landlord's preemption which exists with (regard to the holding also exists with regard to the homestead. If the intention of the legislature had been what Mr. Sen maintains it was, that intention could have been easily expressed in clear language. An it is, the language of Section 182 looks as if it is expressly designed to exclude that construction. Therefore, in the circumstances it appears to me that the Munsif is wrong in coming to the conclusion that the landlord is entitled to exorcise the right of preemption.

(3.) It has been argued that oven if this is so the ease is not one that can be dealt with under Section 115, Civil P. C. I do not (agree because it appears to me that if Section 182 was not effective to bring the homestead in question within the scope (of Section 26-F the learned Munsif had no (jurisdiction to enforce the landlord's right of preemption with regard to it. The conclusion therefore to which I have come is that the Rule must be made absolute and the order of the learned Munsif must be set aside. The petitioner is entitled to his costs. I assess the hearing fee at one gold mohur.