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Kiriti Bhushan Saha Mandal Vs. Tarubala Dasi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 3599 of 1955
Judge
Reported inAIR1957Cal511,61CWN572
ActsTenancy Law; ;West Bengal Non-Agricultural Tenancy Act, 1949 - Sections 2(4), 2(5), 3(2) and 24(1); ;Bengal Tenancy Act, 1885 - Sections 5(1), 5(2), 5(3) and 182; ;West Bengal Estate Acquisition Act, 1953 - Sections 3 and 5
AppellantKiriti Bhushan Saha Mandal
RespondentTarubala Dasi
Appellant AdvocateBalai Lal Pal, Adv.
Respondent AdvocateLala Hemanta Kumar and ;Amulya Kumar Mukherjee, Advs.
DispositionApplication dismissed
Cases ReferredJute Mills Co. Ltd. v. Kali Prasad Sana
Excerpt:
- .....facie, therefore, the land is non-agricultural land within the meaning of section 2(4) of the west bengal non-agricultural tenancy act. 6. the opposite party purchaser contends that the land is homestead to which the provisions cf section 182 of the bengal tenancy act, 1885, applied and that, therefore, the land is non-agricultural within the meaning of that sub-section. 7. both courts have dismissed the application for pre-emption. 8. the learned munsif held that the land is not a homestead. he, howevre, held that a tenure holder is not a tenant and on that ground dismissed the application. 9. the learned subordinate judge held that a tenure-holder is a tenant. he, however, affirmed the order of the learned munsif dismissing the application on the ground that the land is homestead.....
Judgment:
ORDER

Bachawat, J.

1. This revision petition arises out of an application for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act. By a kobala Ext. A dated 17th July, 1952 one Dhani Bala sold in favour of the opposite party four annas share of her interest in C. S. plot No. 2515 of C. S. Khatian No. 15, mouja Purandarpur. The applicant for pre-emption has 12 annas share in the property sold by Ext. A.

2. Ext. 2 khatian shows that plot No. 2515 is part of a tenure with land of a total area of 177 decimal of which plots 2513 and 2515 cover 18 decimal and are khas lands of tenure holders. Plots Nos. 2513 are recorded as bhiti and the rest as tenanted.

3. Both Ext. 2 as also the kobala show that the interest of Dhani Bala is that of 'Madhya Sattadhikari Niskardar' 'Madhya Satta' clearly means and signifies a tenure. The term is used for the technical word tenure only; see Guide and Glossary to Survey and Settlement Records in Bengal, 1917.

4. Prima facie Dhani Bala's interest is that of a tenure-holder within the meaning of the Bengal Tenancy Act. The presumption arising from the record-of-rights that Dhani Bala is a tenure-holder has not been rebutted by the evidence on the record.

5. The land in dispute is now used for purposes not connected with agriculture or horticulture. Prima facie, therefore, the land is non-agricultural land within the meaning of Section 2(4) of the West Bengal Non-Agricultural Tenancy Act.

6. The opposite party purchaser contends that the land is homestead to which the provisions cf Section 182 of the Bengal Tenancy Act, 1885, applied and that, therefore, the land is non-agricultural within the meaning of that sub-section.

7. Both courts have dismissed the application for pre-emption.

8. The learned Munsif held that the land is not a homestead. He, howevre, held that a tenure holder is not a tenant and on that ground dismissed the application.

9. The learned Subordinate Judge held that a tenure-holder is a tenant. He, however, affirmed the order of the learned Munsif dismissing the application on the ground that the land is homestead and, therefore, not non-agricultural land.

10. I think on both points the judgment of the learned Munsif is correct and that the judgment of the learned Subordinate Judge is erroneous.

11. The evidence on the record shows that Dhanibala held another land of the same village under the same landlord as a mukrari raiyat and that there was a hut and a granary on the land in dispute where Dhani Bala's mother used to reside. The structure on the land fell down 30 or 32 years ago. On the date when the West Bengal Non-Agricultural Tenancy Act came into force the land was not used as a homestead. Neither Dhani Bala nor anybody else was residing there. In my opinion in these circumstances the land was not a homestead to which the provisions of Section 182 of the Bengal Tenancy Act applied on the date when the West Bengal Non-Agricultural Tenancy Act came into force. In the Nai-hati Jute Mills Co. Ltd. v. Kali Prasad Sana, 53 Cal W N 82 at p. 90: (AIR 1949 Cal 259 at pp. 264-265) (A), the Court referring to Section 182 of the Bengal Tenancy Act observed:

'The use of the present tense 'holds' cannot in our opinion be overlooked. That indicates that both the elements must be present at the time when the protection of the section is sought to be invoked by the tenant. He must be a raiyat at that time, that is to say, have the arable lands, and must be using the other land for his residence. It is the co-existence of these two elements that would bring in that section. ..... It would follow that if the aforesaid two elements became dissociated later on, Section 182 would cease to be applicable from the moment when either of these two elements disappeared in relation to the tenant concerned. ..... We hold that the moment when ..... the tenant abandons his residence in the homestead land, he goes out of the old and also of the amended Section 182 of the Act .....'.

On the date when the West Bengal Non-Agricultural Tenancy Act came into force the element of residence on the land had disappeared and ceased to exist. Consequently the land was not a homestead to which the provisions of Section 182 of the Bengal Tenancy Act applied, Consequently the land was not such that it could be said to come within Exception (a) to Sub-section (4) of Section 2 of the West Bengal Non-Agricultural Tenancy Act. I am satisfied that the case is non-agricultural land within the meaning of that sub-section.

12. An application for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act is maintainable at the instance of a co-sharer tenant if there is transfer of the entirety or a part of the non-agricultural land in a non-agricultural tenancy. In my opinion a tenure is not non-agricultural tenancy and therefore, an application for pre-emption is not maintainable in the case of transfer of the entirety or part of a tenure.

13. The material part of Section 2 (5) and Section 3 of the West Bengal Non-Agricultural Tenancy Act are as follows:

'2. In this Act, unless there is anything repugnant in the subject or context,--

'(5) 'non-agricultural tenant' means a person who holds non-agricultural land under another person and is, or but for a special contract would be, liable to pay rent to such person for that land but does not include any person who holds any such land on which any premises occu-pied by such person are situated if such premises have been erected, or are owned, by the person to whom such occupier is, or but for P special contract would be, liable to pay rent fcr such occupation.'

'3. (1) There shall be, for the purposes of this Act, the following classes of non-agricultural tenants, namely:

(a) tenants, and

(b) under-tenants.

(2) 'Tenant' means a person who has acquired from a proprietor or a tenure-holder a right to hold non-agricultural land for any of the purposes provided in this Act, and includes also the successors in interest of persons who have acquired such a right.

(3) 'Under-tenant' means a person who has acquired a right to hold non-agricultural land for any of the purposes provided in this Act either immediately or mediately under a tenant and includes also the successors in interest of persons who have acquired such a right.'

14. The definition in Section 2(5) is very wide. Literally read it may appear that a tenure-holder is a tenant within the meaning of Section 2(5) and Section 3 (2) of the Act.

15. The land comprised in a tenure may be actually used for purposes not connected with agriculture and horticulture and may, therefore, be non-agricultural land. The tenure-holder may be a person who has acquired from the proprietor a right to hold such land for the purposes of the Act as defined in Section 4 (c) read with Section 5 (c) of the Act.

16. Section 3 (1), however, shows that for the purposes of the Act there are only two classes of tenants. If the tenure-holder does not belong to either of these classes of tenants, then clearly the tenure-holder is not a tenant for the purposes of the Act.

17. Assume that A is the proprietor. B is the tenure-holder who has acquired from A the right to hold non-agricultural land comprised in the tenure for the purposes of the Act. Assume further that C has acquired the right to hold such land under B for the purposes defined in the Act

18. It is contended by Mr. Pal that B the tenure-holder is a tenant. If this contention is correct, let us see what are the consequences.

If B the tenure-holder is a tenant, then C satisfies the definition in s. 3 (3) of the Act. C then is a person who has acquired the right to hold non-agricultural land for the purposes provided in the Act under a tenant. C is, therefore, an under-tenant.

But C having acquired his right to hold non-agricultural land for the purposes provided in the Act under a tenure-holder is also a tenant as defined in Section 3 (2) of the Act.

19. If Mr. Pal's contention is accepted, the consequence is that G is both a tenant and an, under-tenant in respect of the same holding at the same time. This is 'reductio ad absurdum' and an impossibility. The tenants and undertenants form two separate classes. Chapter III, Sections 6 to 15 define the rights of tenants, Chapter IV, Sections 16 to 22 define the rights of under-tenants. Their status and rights are different. C cannot be a tenant and an under-tenant at the same time in respect of the same holding.

20. The tenure-holder, therefore, is not a tenant. Clearly, the tenure-holder is not an under-tenant for he holds under a proprietor who clearly is not a tenant. A tenure-holder is, therefore, neither a tenant nor an under-tenant.

21. In my opinion the word 'person' in Section 2 (5) and Section 3 (2) must be read as a

'person other than the proprietor or tenure- holder'. 'Tenant' and 'under-tenant' of the West BengalNon-agricultural Tenancy Act correspond to'raiyat' and 'under-raiyat' of the Bengal Tenancy Act. Obviously the definition of 'tenant' in Section 3 (2) of the West Bengal Non-Agricultural Tenancy Act is modelled on the definition of 'raiyat'in Section 5 (3) of the Bengal Tenancy Act.

22. Having regard to Sub-sections (1) and (2) of Section 5 of the Bengal Tenancy Act, a 'tenure-holder' could not be a raiyat. I am satisfied that the intention of the Legislature in enacting the West Bengal Non-Agrilcuttural Tenancy Act was similarly to exclude tenure-holder from the definition of 'tenant' in that Act. The intention clearly appears from Section 3 read as a whole though Sections 2 (5) and 3 (2) literally read may appear to show that a tenure-holder is a tenant.

23. The definition of 'Non-Agricultural tenant' in the West Bengal Non-Agricultural Tenancy Act in material respects varies from the definition of 'non-agricultural tenant' in the West Bengal Estates Acquisition Act, 1953.

It is, however, interesting to note that a tenure-holder is not a non-agricultural tenant within the meaning of the West Bengal Estates Acquisition Act, 1953. This will appear to be clear from Sections 3 (i), 3 (k) and 5 (c) of the West Bengal Estates Acquisition Act, 1953. A tenure-holder is an intermediary above a non-agricultural tenant within the meaning of that Act.

24. I am of the opinion that a tenure-holder is net a tenant for the purposes of the West Bengal Non-Agricultural Tenancy Act. Therefore, the applicant is not a co-sharer tenant and there has been no transfer of land in a non-agricultural tenancy within the meaning of Section 24 of the West Bengal Non-Agricultural Tenancy Act.

25. The applicant has no locus standi to maintain the application for pre-emption and his application must, therefore, be dismissed. On this ground the impugned order must be affirm-ed.

26. I pass the following order:--

The Rule is discharged. There will be no order as to costs in this Rule.


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