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1958 Supreme(Cal) 291
HIGH COURT OF CALCUTTA
LAHIRI, BANERJEE, JJ.
Klnuram Sadhukhan - Appellant
Versus
Hazi Md Yusuf - Respondent
Decided on : Dec 24, 1958
Abinash Chandra Ghosh, Apurbadhan Mukherjee, Chundidas Roy Choudhury, Jahnabi Charan Das Gupta.
A sub-lease granted by an occupancy raiyat for non-agricultural purposes is an under-raiyati lease within the meaning of section 4 (3) of the Bengal Tenancy Act, and the under-lessee is an under-raiyat under the Bengal Tenancy Act, regardless of the purpose of the lease.
Headnote:
NON-AGRICULTURAL TENANCY ACT - APPLICABILITY - OCCUPANCY RAIYAT - SUB-LEASE FOR NON-AGRICULTURAL PURPOSES - STATUS OF SUB-LESSEE - WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1949, SEC. 24 - BENGAL TENANCY ACT, 1885, SEC. 4 (3).
Fact of the Case:
The petitioners, Kinuram and his wife, sold the disputed lands to Monohar Chandra Dass, who executed an agreement of reconveyance to recover the property if the petitioners repaid the consideration money. The petitioners repaid the stipulated amount and Monohar executed deeds of reconveyance in their favor. Opposite party No. 1, Hazi Mahammad Yusuf, filed an application for pre-emption under section 24 of the Non-Agricultural Tenancy Act, claiming that the petitioners were non-agricultural tenants under him and that he was entitled to pre-empt the sale. The petitioners objected, arguing that their tenancy was governed by the Bengal Tenancy Act, that the transfer to Monohar was no longer in existence due to the reconveyance, and that the opposite party No. 1 was an intermediary whose interest had vested in the State of West Bengal.
Finding of the Court:
The court held that the petitioners were under-raiyats within the meaning of the Bengal Tenancy Act and were governed by its provisions, and that section 24 of the Non-Agricultural Tenancy Act had no application. The court also held that the opposite party No. 1 was an intermediary within the meaning of the West Bengal Estates Acquisition (Amendment) Act of 1957 and that his interest had vested in the State of West Bengal, and therefore he was not the immediate landlord of the petitioners.
Issues: 1. Whether the Non-Agricultural Tenancy Act applies to the case where an occupancy raiyat grants a sub-lease for non-agricultural purposes. 2. Whether the opposite party No. 1 is an intermediary within the meaning of the West Bengal Estates Acquisition (Amendment) Act of 1957 and his interest has vested in the State of West Bengal.
Ratio Decidendi: 1. The court held that the definition of a raiyat in section 5 (2) of the Bengal Tenancy Act, which defines a raiyat as primarily a person who cultivates land, is the sole determining factor in determining whether a person is a raiyat, and that the purpose of the lease is immaterial in determining the status of an under-raiyat. Therefore, a sub-lease granted by a raiyat for non-agricultural purposes is an under-raiyati lease within the meaning of section 4 (3) of the Bengal Tenancy Act, and the under-lessee is an under-raiyat under the Bengal Tenancy Act, regardless of the purpose of the lease. 2. The court held that the opposite party No. 1, who was recorded in the record-of-rights as an occupancy raiyat, was an intermediary within the meaning of section 2 (2) (i) of the West Bengal Estates Acquisition (Amendment) Act of 1957, and that his interest had vested in the State of West Bengal upon the publication of the notification under section 4 of the Act.
Final Decision: The court made the Rule absolute, set aside the orders of the lower courts, and dismissed the application filed by the opposite party No. 1. The petitioners were awarded costs in all the courts from the opposite party No. 1.
1. THE order that is challenged in this case is one for preemption under section 24 of the West Bengal Non-Agricultural Tenancy Act (West Bengal Act XX of 1949) made by the Second Munsif at Baruipur and affirmed on appeal by the Sixth Court of Subordinate Judge, Alipur, and the petitioner before us is the objector. The facts which are undisputed are these: On August 8, 1955 the petitioners Kinuram and his wife sold the lands in dispute together with the structures standing thereon to opposite party No. 2, Monohar Chandra Dass. . Simultaneously with the execution of the conveyance Monohar executed an agreement of reconveyance by which he agreed to recovery the property to the petitioners provided the petitioners repaid the consideration money together with interest within a certain period. In pursuance of this agreement the petitioners repaid the stipulated amount to Monohar who in his turn executed deeds of reconveyance in favour of the petitioners on September 28, 1955. On December 7, 1955, opposite party No. 1 Hazi Mahammad Yusuf filed an application for pre-emption under section 24 of the Non-Agricultural Tenancy Act making the necessary allegations under that section. This claim was resisted by the petitioners Kinuram and his wife on the ground that his tenancy is governed by the Bengal Tenancy Act, and as such the Non-Agricultural Tenancy Act has no application; that on the date of the application for preemption the transfer in favour of opposite party No. 2 Monohar, was not in existence, because it had been wiped out by the reconveyance executed by Monohar in favour of the petitioners long before the filing of the application for pre-emption; that the opposite party No. 1 being an intermediary within the meaning of the West Bengal Estates Acquisition Act his interest had vested in the State of West Bengal, and as such he was not the petitioners' immediate landlord within the meaning of section 24 of the Non-Agricultural Tenancy Act. Two other minor points were also raised by the petitioners but it is not necessary to state them for the purposes of the present Rule. All the points raised by the petitioners have been overruled by both the courts below and the application of the opposite party No. 1 has been granted and against the concurrent orders of the courts below the petitioners have obtained this Rule.
2. MR. Apurbadhan Mukherjee appearing in support of the Rule has pressed all the points raised by the petitioners in the petition of objection. The first point relates to the applicability of the Non-Agricultural Tenancy Act. According to the petitioners their tenancy is governed by the Bengal Tenancy Act whereas according to the opposite party No. 1 the tenancy is governed by the Non-Agricultural Tenancy Act. The land which forms the subject-matter of the tenancy has been found to be chandina or bazar land; but the status of the opposite party No. 1 has been recorded in the record-of-rights as that of an occupancy raiyat and the interest of the opposite party No. 2 (Monohar) has been recorded in the recent revisional survey records as a korfa tenancy. The lower appellate Court accepts these entries as correct and observes:-
"it is undisputed that the status of the petitioner (opposite party No. 1 in this Rule) is that of an occupancy raiyat";
but nevertheless since the land was let out to the petitioners for construction of shop rooms, that lease was for non-agricultural purposes and since the purpose of the lease determines the nature of the tenancy the petitioners' tenancy must be governed by the Non-Agricultural Tenancy Act. Upon these findings the position is that though the petitioners' immediate landlord is an occupancy raiyat the petitioners are non-agricultural tenants under him.
The learned Subordinate Judge has held that if an occupancy raiyat grants a sub-lease in respect of a portion of his holding for non-agricultural purposes the sub-lease will not be governed by the Bengal Tenancy Act but by the N
