A tenure-holder is not a tenant for the purposes of the West Bengal Non-Agricultural Tenancy Act, 1949.

( 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 als