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HIGH COURT OF CALCUTTA
C. MOOKERJEE, AMITABHA DUTTA, JJ.
Bankim Behari Maity - Appellant
Versus
Ganesh Ch Dhal - Respondent
Civil Rule No. 3073 of 1980
Decided on : Feb 09, 1983
LAND REFORMS - PRE-EMPTION - HOLDING - DEFINITION - INCLUDES BOTH AGRICULTURAL AND NON-AGRICULTURAL LAND - DIVISION OF HOLDING INTO SEPARATE HOLDINGS FOR AGRICULTURAL AND NON-AGRICULTURAL LAND UNDER SECTION 51(4) OF THE ACT - NECESSARY BEFORE CEILING LIMIT UNDER SECTION 14M OF THE ACT CAN BE DETERMINED.
Fact of the Case:
Petitioner filed an application under Section 8 of the West Bengal Land Reforms Act for pre-emption of a portion of the raiyat holding. The appellate court reversed the decision of the trial court, holding that the disputed holding was not a holding as defined in Section 2(6) read with Section 2(7) of the Act, and the petitioner and the transferor were not raiyats as defined in Section 2(10) of the Act at the time of the transfer.
Finding of the Court:
The High Court held that the impugned order of reversal passed by the learned Additional District Judge cannot be sustained as he has acted in exercise of his jurisdiction illegally or with material irregularity in making such order. The Court held that a holding of a raiyat does not cease to be a holding for the purpose of Section 8 of the Act even if a part of it is non-agricultural land. In such case the raiyat will hold as a raiyat the agricultural land within the holding and the operation of section 8 of the Act will be attracted to a transfer in so far as it relates to transfer of agricultural- land within the holding.
Issues: Whether the disputed holding was a holding as defined in Section 2(6) read with Section 2(7) of the Act, and whether the petitioner and the transferor were raiyats as defined in Section 2(10) of the Act at the time of the transfer.
Ratio Decidendi: The Court held that the definition of holding in Section 2(6) of the Act contemplates cases where the holding of a raiyat comprises agricultural land as well as non-agricultural land and the key note of the definition of holding is that it is the unit of assessment of revenue. A holding of a raiyat does not cease to be a holding for the purpose of Section 8 of the Act even if a part of it is non-agricultural land. In such case the raiyat will hold as a raiyat the agricultural land within the holding and the operation of section 8 of the Act will be attracted to a transfer in so far as it relates to transfer of agricultural- land within the holding. That would be the position till the holding is divided by the Revenue officer to constitute separate holdings for agricultural land, and non agricultural land under Section 51 (4) of the act and, the existing revenue or rent as the case may be is apportioned.
Final Decision: The revisional application was allowed, the impugned order passed by the learned Additional District Judge was set aside and the order of the learned munsif was restored.
1. THIS revisional application, is directed against an appellate order dated 23. 6. 80 passed by the learned Additional District Judge, 5th Court, Midnapore reversing an order of the learned Munsif 3rd Court, midnapore who had allowed the petitioner's application under Section 8 of the west Bengal Land Reforms Act (hereinafter called the Act) for pre-emption of a portion of the raiyat holding recorded in R. S. Khatian No. 69 of Mouja Mathpukur.
2. IT appears that the raiyat holding appertaining to R. S. Khatian No. 69 of mouja Mathpukur belonged to Rajandra Nath Maity and devolved after his death on Bankins, the petitioner and amulya who became co-sharers by [inheritance Thereafter Amulya transferred 54 acre land out of Plot No. 1197 measuring 94 acre of the said holding to the opposite party Nos. 1 and 2 by a kobala dated 23. 4. 74 which was registered on 26. 7. 74. No notice under Section 5 (4) of the Act was served on the petitioner. The petitioner came to know of the said transfer on 7. 1. 77 and applied for pre-emption on 21. 2. 77.
The opposite parties contested the application by pleading that as there was previous partition of the disputed holding between the petitioner and Amulya they were not co sharers at the time of transfer in question and that the disputed transaction was a loan in substance as it was subject to an agreement far re-conveyance.
3. THE learned Munsif after considering the evidence adduced by the parties allowed the petitioner's application for pre-emption repelling the contention of the opposite parties. In appeal the learned District Judge has reversed the decision of the Court of first instance as according to him the tenancy appertaining to R. S. Khatim Nos. of Mouja Mathpukar comprises six plots of which four plots including the disputed plot No. 197 are paddy lands and the other two plots are tanks being non agricultural land and so it was not a holding as denned in section 2 (6) read with Section 2 (7) of the Act and the petitioner and Amulya were not raiyats as defined in Section 2 (10) of the Act at the time of the transfer in question of the disputed lard.
4. THE appeal court has also referred to the conflict of decisions in Asraf Hussain v. Jehangir 1978 (2) CLJ. 343 and Kali Pada Ghosh v. Dulal 1978 (2)C. L. J. 155 on the question wheter or not the Munsif before making an order for pre-emption under Section 8 should determine the area and description of land that can be retained by the pre emptor within the ceiling limit under section 14m of the Act applicable to him.
After hearing the learned advocates appearing for the parties and considering the material on record we find that the impugned order of reversal passed by the learned Additional District Judge cannot be sustained as he has acted in exercise of his jurisdiction illegally or with material irregularity in making suck order.
5. "HOLDING" has been denned in Section 2 (6) of the Act as follows:-"HOLDING means the land or lands held by a raiyat and treated as a unit for assessment of revenue". As defined in Section 2 (7) of the act "land" means agricultural land other than land comprised in a tea garden which is retained under sub-section (3)of Section 6 of the West Bengal Estates Acquisition Act 1953 and include homestead but does not include tank. According to Section 2 (10) of the act "raiyat" means a person or an institution HOLDING land for purpose of agriculture. Section 51 of the Act deals with the revision or preparation of record of rights in respect of a district of part of a district after the State Government makes an order directing the same and sub-section (4) thereof provides follows : -
"(4). Notwithstanding anything contained in the West Bengal Non agricultural Tenancy 1949, where any non agricultural land is comprised in the HOLDING of a raiyat or where any agricultural land is comprised in any non-agricultural tenancy the revenue officer shall - (a) divide the HOLDING of tenancy as the case may be so as
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