A homestead is not ipso facto an agricultural land and it may become an agricultural land only if the lands comprising the holding where the homestead appertains are also used for agricultural purpose.

1. This Rule is directed against the order dated July 17, 1978 passed by the learned Additional District Judge. 5th Court at Midnapore in Misc Appeal No 43 of 1978 affirming the order No. 27 dated January 31, 1978 passed by the learned Munsif, Second Court. Midnapore in J. Misc. Case No. 60 of 1975. The petitioner made an application for pre-emption of 03 acre of land being the eastern portion of plots No 551 and 552 appertaining to Revision" Settlement Khattan No. 29 within Mouza Dhekia, P.S. Khragpur in the district of Midnapore file plaintiff based his claim for pre-emption on the ground that the plaintiff was a co-share in respect of the holding in question and the plaint if also held land contiguous to the land in respect of which the said right of pre-emption was made. The trial Court on consideration of the materials on record and evidences adduced by the parties came to the finding that the petitioner was not a co-sharer because he had purchased some land in the holding in question prior to the vesting of estates under the West Bengal Estates Acquisition Act. 1953 and the petitioner was also not entitled to claim for pre emption on the ground of vicinage because the land in question was not an agricultural and but a not an agricultural land and as such the same was not 'land' within the meaning of the Land Reforms Act. In that view of the matter the trial court held that an application for pre-emption under S. 8 of the West Bengal Land Reforms Act was not maintainable and the said application "for pre-emption was dismissed by the trial court. The pre-emptor petitioner thereafter preferred an appeal being the Said Misc. Appeal No. 43 of 1978 pending in the 5th Court of the learned Additional District Judge. Midnapore and as aforesaid the learned Additional District Judge dismissed the said appeal and affirmed the order of the learned Munsif rejecting the application for preemption. It, however, appears that the Court of Appeal below held that the land in question was an agricultural land but the Court of Appeal below held that although it was an agricultural land the petitioner was not entitled to pre-emption on the ground of vicinage and the right of pre emption on the ground of vicinage under S. 8 of the Land Reforms Act can be made of a person holds not any petition of the and sought to be preempted but a different land contiguous to the land in question.

2. Mr. Satinath Mukherjee the learned Counsel appearing on behalf of the petitioner submitted that the court of appeal below having come to the finding that the land in question was an agricultural land it should have allowed the application for pre-emption because admittedly the pre-emptor petitioner was owner of a portion of the plots in question, Mr. Mukherjee submitted in his usual fairness that homestead ipso facto will not determine the question as to whether the land is agricultural or non agricultural Mr. Mukherjee contended that if it person holds any land for agricultural purpose and also holds a homesteaded then such homestead of a person holding any land for agricultural purpose is an agricultural land Mr. Mukherjee submitted that it has not been found by any of the courts below that the petitioner does not hold any land for agricultural purpose. It has only been held by the trial court that the lands in question were not held for agricultural purpose but such land consisted of structures meant for residential purpose. Mr. Mukherjee submitted that a house for residential purpose is not an agricultural land ordinarily but if a raiyat holds other lands for agricultural purpose and also holds a plot comprising his homestead then the said homestead becomes an agricultural land although the awaking house and the lands appertaining thereto as such are not actually utilised for cultivation. Mr. Mukherjee in this connection referred to a Bench decision of this Court made in the case of Khantamayee v. Rukmini reported in 48 CWN at page 759. It was held i