The right of pre-emption under the West Bengal Land Reforms Act is subject to the conditions that the subject matter of pre-emption is agricultural land, the pre-emptor retains the right to pre-empt at the time of the passing of the judgment, and the pre-emption is sought for a portion or share of a holding, and not the entire property.

1. THIS rule was obtained against an order dated the 18th of August, 1976 passed by the learned Additional Sessions Judge, burdwan in Misc. Appeal no. 55, 56, 57 and 58 of 75 (heard analogously) reversing an order dated the 26th of april, 1975 passed by the learned Munsif, Kalna in pre-emption case no. 57, 58, 59 and 61 of 72.

2. THE four miscellaneous cases (nos. 57, 58, 59 and 61 of 72) before the learned Munsif of Kalna with regard to pre-emption were originally filed before the S. L. R. O. The property in dispute forms part of plot nos. 317, 318 and 330 of mouja Jharbati appertaining to khatian no. 346. There were tour sale deeds executed on the same day by the same person but to different person. The opposite party no. 1 claimed right of pre-emption as he had lands adjoining plot no. 318 which is a tank comprising an area of 2. 09 decimal, plot no. 317 which is a bank of the said tank and includes another area of 63 decimal and plot no. 313 which is also a bank of a tank with an area of. 80 decimal, when the owner of the aforesaid plots sold his interest to four different persons which were registered in four different sale deeds on the same day. Thus the opposite party's claim was preferred on account of vicinage. The present petitioner resisted the claim for pre-emption on the ground, inter alia that the property in dispute was non-agricultural land as they were mainly tank and bank of the tank. The learned Munsif disallowed the claim on the ground that the land was agricultural and that the claimant was a big raiyat against whom a B. R. case had been started. The learned appellate court noted that a Civil Rule No. 4. 40 of 69 was obtained in a big raiyat case and this court ultimately directed title pre-emptor to submit 'b' form along with some other directions. In the said circumstances, the appellate Court thought that it could not be conclusively held that the pre-emptor was having land above the ceiling. The learned appellate Court also noted that the land was 'settled with a raiyat'. He held that "actual use of the land for agricultural purpose was not a condition precedent" to enforce the right of preemption. The court also thought that under Section 8 (1) of the West Bengal land Reforms Act the nature of the land transferred was not to be taken into consideration. "the entire property held by the raiyat" was to be treated as a unit. On those considerations he allowed the claim for pre-emption and the same is challenged in this rule.

Mr. Ranjit Kumar Banerjee, appearing in support of the Rule contended that as the subject-matter of conveyance was only a tank and its bank, comprising 3. 52 acres (2. 09 +. 63 +. 80) it would not be treated as agricultural land. Section 2 (7) of the West bengal Land Reforms Act provides that "land" means agricultural land. Moreover, by a later amendment, firstly by the president's Act 3 of 1971 and thereafter by the West Bengal Land reforms (Amendment) Act, 1972 (Act XII of 72) it was provided that land does not include a tank. In the case of Fakir Chandra Chakraborty v. L. K. Jha, reported in 74 C. W. N. 946 a Division Bench of this court held that the tank would come within the definition of non-agricultural land as contained in Section 2 (3) of the West bengal Estates Acquisition Act. In a later case B. K. Saha vs. Revenue Officer, reported in 76 C. W. N. 367 it was also held that as a tank was not used ordinarily for the purpose of agriculture or horticulture it is not agricultural land, even though it may be used for drinking purpose or other purposes including irrigation. In this connection mr. Banerjee drew the attention of the court to the R. S. Record in which the tank was referred to be meant for "shecher Jannay" (for the purpose of irrigation ). Even so the tank can be regarded as nothing else than non-agricultural land by virtue of the amended provision and the said decision in 76 C. W. N. 367. The expression 'agriculture' came to be considered at some length by