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1985 Supreme(Cal) 236
High Court Of Calcutta
CHITTATOSH MUKHERJEE, SHAMSUDDIN AHMED
SUKHAMOY BAJ - Appellant
Versus
NEMAI MONDAL - Respondent
C. O. 2639 Of 1983
Decided On : 06/14/1985
TARUN CHATTEJEE
After the vesting of intermediary interests under the West Bengal Estates Acquisition Act, 1953, the co-sharer raiyats of a holding ceased to be co-sharers and each raiyat became a direct tenant under the state. The status of the co-sharer tenants after vesting would depend on the nature of the user of the particular land at the date of vesting.
Headnote:
WEST BENGAL ESTATES ACQUISITION ACT, 1953 - VESTING OF INTERMEDIARY INTERESTS - STATUS OF CO-SHARER TENANTS AFTER VESTING - PRE-EMPTION UNDER WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1949 - MAINTAINABILITY - DETERMINATION OF AGRICULTURAL OR NON-AGRICULTURAL CHARACTER OF HOLDING.
Fact of the Case:
The dispute arose from a pre-emption application under the West Bengal Non-agricultural Tenancy Act, 1949, for the transfer of a fractional interest in a tank recorded as 'raiyati Sthitiban' in the cadastral and revisional survey settlement records. The main issue was whether the tank was non-agricultural or agricultural, and whether the pre-emption application was maintainable.
Finding of the Court:
The court held that the disputed property was a non-agricultural land and that the petitioners, who were stranger purchasers, were not entitled to pre-empt under the West Bengal Non-agricultural Tenancy Act, 1949.
Issues: 1. Whether the disputed tank was non-agricultural or agricultural in character. 2. Whether the pre-emption application under the West Bengal Non-agricultural Tenancy Act, 1949 was maintainable.
Ratio Decidendi: 1. The court held that after the vesting of intermediary interests, including raiyati and under-raiyati interests, under the West Bengal Estates Acquisition Act, 1953, the co-sharer raiyats of a holding ceased to be co-sharers and each raiyat became a direct tenant under the state. 2. The court further held that the status of the co-sharer tenants after vesting would depend on the nature of the user of the particular land at the date of vesting. If the land was being ordinarily used for non-agricultural purposes, the intermediary, including raiyat or under raiyat, upon retaining the same would be deemed to be a non-agricultural tenant. Similarly, if the land was being ordinarily used for agricultural purposes, the intermediary would be deemed to be a raiyat in respect of the said land. 3. The court also held that the nature of the original tenancy, and not the character of the parcel included in the sub-tenancy, would determine whether the sub-tenancy was to be governed by the Bengal Tenancy Act or by the Transfer of Property Act.
Final Decision: The court allowed the revision application in part, set aside the orders of the trial court and the lower appellate court, and remitted the case back to the trial court for fresh disposal in accordance with the observations contained in the judgment.
( 1 ) THIS Revision Application arises out of a proceeding under S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949 for preempting transfer of a fractional interest in a tank measuring 14. 48 acres in Plot No. 397, mouza plassey P. S. Majia, Dist. Birbhum. Both in the Cadastral Survey Records and also in the Revisional Survey Settlement Records the status of the Co-sharer tenants of the said tank which was described as Ram Dhanger Pukur was recorded as "raiyati Sthitiban. " The principal point in the case was whether the said rank recorded in Plot No. 397 in mouza plassey, P. S. Majia, Dist. Birbhum was non-agriculture ural or an agricultural holding and whether the pre-emption application under S. 24 of the west Bengal Non-agricultural Tenancy Act, 1949 was maintainable in law.
( 2 ) ON 7th November 1977 opposite parties 12 to 16 of the application under S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949 purported to transfer 6 annas 10 gonads share in the aforesaid plot No. 397 in favor of 13 purchasers including the petitioner of this Revision Application. Out of the said purchasers, Rabilochan Pramanik and Nibaran Ghosh were already recorded as co-shares of the said plot and, therefore, the preemptors after excluding their 2/13 shares prayed for pre-emption under S. 24 of the said Act in respect of the remaining 11/13 shares of the rest of the purchasers. There was a compromise between the pre-emptor and the purchaser opposite parties 1, 5 and 11 of the pre-emption application and as between the said set of parties the case was disposed of in terms of settlement. The Present petitioners contested the pre-emption case, inter alias, claiming that the disputed tank was an agricultural land and therefore the preemption proceeding under S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949 was not maintainable.
( 3 ) THE learned Munsif, 2nd Court, Bankura, inter alias, held that the disputed property was a non-agricultural land and the present petitioner were stranger purchasers and accordingly he allowed the preemption application under S. 24 of the West Bengal Non-agricultural Tenancy Act. The learned subordinate Judge, Additional Court, Bankura dismissed the appeal preferred by the present petitioner against the said order of he learned Munsif. Thereafter, they have filed the present Revision Application, which has been heard as a contested one in the presence of the contesting opposite parties to the Rule.
( 4 ) MR. Saktinath Mukherjee, learned advocate for the petitioners, has submitted that both the learned Munsif and the learned Subordinate Judge committed errors of jurisdiction by not considering the statutory presumption attaching to the C. S. and R. S. Records, which showed the status of the recorded tenants as 'raiyati Sthittiban'. According to Mr. Mukherjee, the learned Munsif and the learned Subordinate Judge failed to appreciate the in pot of he decisions of this court in the case of Mishri show v. Belur Nikunjamoyee Gadar Institution and or. s 1978 (1) CLJ 532, Eyachhin Ali Naskar and anr. v. Gopol Gaz 83 Calwn 87 and Badal Chandra Das v. Kinkar Chandra Das 87 Calwn 543. Mr. Mukherjee has submitted that before the vesting of intermediary interests under the West Bengal Estates Acquisition Act it was settled law that if the lease was governed by the provisions of the Bengal Tenancy Act then sub-leases of portions of properties included in the main lease would be deemed to be agriculture leases. The nature of the main tenancy and not the character of the parcel included in the sub-tenancy would determine whether the sub-tenancy was to be governed by the Bengal Tenancy or the Transfer of Property Act. Mr. Mukherjee's contention is that the persons were recorded in the C. S. Records as co-sharer-tenants of the disputed tank were 'raiyati Sthitiban' tenants and, therefore, after the notification under S. 4 of the West Bengal Estates Acquisition Act in r
