Homestead land is not agricultural land and is therefore not subject to pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955.

1. THIS Rule is directed against an appellate order allowing an application for preemption made under Section 8 of the west Bengal Land Reforms Act, 1955. The impugned order was in reversal of the order of the learned munsif dated November 15, 1975 dismissing the Mis Case No. 42 of 1975 arising out of the said pre-emption proceedings.

2. THE petitioners who are the precmptees, purchased the 4 decimals of land of plot no. 249, khatian no 29 of mouza Makrampur, P. S. Sonarpur, district-24-Parganas by a conveyance dated February 15, 1975. The pre-emptor opposite party became a co-sharer of the land in respect of. 11/2decimals of land by virtue of his purchase dated December 21, 1959. It may be mentioned here that the connected jama as recorded in R. S. Khatian No. 29 comprises only of dag No. 249 which is recorded as bastu having an area of 5 decimals. The application for pre-emption was rejected by the earned Munsif on the ground that in his evidence the pre-emptor stated that he did not purchase any part of the plot measuring :5 decimals obviously on a misunderstanding. Accordingly, it was held, he never became a co-sharer so that his application under section 8 was not maintainable in law.

Before the appellate court the main contention was about the genuineness of the kobala dated December 21, 1959 whereby the pre-emptor opposite party purchased a portion of the dag of the jama. It was held that by the kobala of December 21, 1959, the opposite party became a co-sharer of the holding and as such he was emitted to pre-empt, the disputed property. In this view the application was held maintainable and the pre-emption was accordingly allowed.

3. IN this Rule Mr. Mandal, learned Advocate appearing for the petitioners submitted that the application under section 8 of the Land Reforms Act, 1955 was not maintainable on the ground that the holding was not an agricultural holding. He referred to the revisional record of right wherein the tenancy has been recorded as raiyati dakhaisatta bisista and the nature of the land has been described as bastu in respect of the single dag of the jama with two huts standing thereon.

4. IT must be stated that, though in the petition of objection to preemption there is a reference that the preemption is not available against bastu land, the trial in the courts below did not proceed on that basis. Even so, the question at issue involves a point of law on the basis of facts which are not really in dispute. I think the petitioner can be permitted to urge the point in the form raised in this Court.

Mr. Mondal referred to a decision in Ansurekha Dutta -versus-Dipti may Pal, 70 C. W. N. 1079, in which it was held that a dakhalkar is not, and cannot be, a raiyat and plainly he is a non-agricultural tenant. The position was considered in Misri Show versus belur Nikunjamoyee Gadar Institution, 1978 (1) CLJ 532. It was noted in that case that a long series of decisions reaffirmed the principle that the nature of the original tenancy and not the character of the parcel included in the subtenlancy would determine whether the sub-tenancy was to be governed by the bengal Tenancy Act or by the Transfer of Property Act. This has been the position since the decision in Baouram roy. v. Mohendra Nath Samanta (1904)8 C. W. N. 454 and in effect reaffirmed in Nirshi Dhobin v. Sudhir Kumar mukrerjee AIR 1969 S. C. 864 as stare decisis.

5. UNDER the West Bengal Estates acquisition Act, 1953 as was also noted in the above decision, there was a change in the legal position. Under section 2 (b) the expression of the Act, "agricultural land" means land ordinarily used for purposes of agriculture or horticulture and includes such land, notwithstanding that it may be lying fallow for the time being. Under clause (i) the expression "non-agricultural land" means land other than agricultural land or other than land comprised in a forest. It is thus obvious that the nature of the holding has to be determined with reference to t