JUDGMENT

RAY, J.:— Special leave granted. Heard learned counsel for both the parties.

2. This appeal on special leave arises out of an application for pre-emption filed under the provisions of Section 8 of West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956) by the respondent, Md. Nasiruddin to pre-empt the land sold to the appellant, Abdullah Kabir by a Kobala dated May 16, 1974 by a co-sharer having 1/4th interest in plot No. 115/852 appertaining to Khatian No. 1944 on the ground of his being co-sharer in the said holding. The land in question i.e. plot No. 115/852 measuring 0. 3 cents was owned by one Sarat Chandra Dutta, son of Amulaya Ratan. Sarat Chandra Dutta was an agriculturist and he used to keep his agricultural implements in the said property. He also possessed along with the said land other agricultural lands as agriculturist and in occupancy raiyati interest. During R. S. operation also the said property was recorded in his name as Raiyat sthitiban and the classification of land was recorded as Bari i.e. homestead of the said agriculturist. On September 20, 1967, Sarat Chandra Dutta, owner of the said plot of land, sold the same by a registered kobala to four persons namely Sisir Kumar Mondal, Naba Kumar Mondal. Madhusudan Mondal and Purnalakshmi Mondal. Thereafter on October 28,1968 Sisir Kumar Mondal and Naba Kumar Mondal sold their shares to Nurunessa Khatun, predecessor of the respondent-petitioner. On the basis of this kobala Nurenessa Khatun became co-sharer in respect of the said land. After the death of Nurenessa Khatun her heirs including the eldest son, the respondent petitioner, inherited the right of occupancy as co-sharer. On May 16, 1974, Purnalakshmi sold her 1/4th interest to the appellant, Abdullah Kabir by Kobala (Exh. l(b)). It is the case of the respondent-petitioner that as no notice of the said sale was served on his mother, Nurunessa Khatun, he could not know of the said sale earlier. However, on taking certified copy of the said sale on May 3, 1977, the respondent-petitioner filed an application for pre-emption under Section 8 of the West Bengal Land Reforms Act after depositing the requisite sum as required to be deposited under the said Act. This application was registered as Misc. Case No. 36 of 1977 in the Court of Munsif, 2nd Court, Bolput. The appellant contested the case, by filing a written objection contending inter alia that the respondent-petitioner was neither co-sharer of the holding nor an adjoining land owner. The disputed property is non-agricultural tenancy. The petition for pre-emption is barred by limitation as the respondent-petitioner was all along aware of the said sale and the story of his coming to know of such sale after taking copy of sale deed on May 3, 1977 was absolutely false. The disputed deed does not contain the recital that the respondent-petitioner was an adjoining land owner. The petition for pre-emption in such circumstances was liable to be dismissed. Three issues were framed by the Trial Court i.e. :

(1) Whether the case land is non-agricultural and whether Section 8 of the West Bengal Land Reforms Act will be applicable in this case;

(2) Whether the petitioner was a co-sharer in respect of case holding from before purchase of the disputed land;

(3) Whether the case is barred by limitation?

3. The Trial Court held that the petitioner-respondent was a co-sharer and was entitled to pre-empt; the application for pre-emption was not barred by limitation as it was filed within a period of three years of knowledge of the same as no notice of sale was served on the petitioner-respondent. The trial Court further held that the subject matter of the sale was recorded as "Bastu" in the Kobala dated May 16, 1974 (Exh. 1 (b)) and "Bari" in the R. S. Record of Right (Exh. 3(h)) and though Sarat Chandra Dutta, the owner of the land was an agriculturist yet this homestead land being not included in the raiyat holding could not be treated as agricultural land a