Transfer of portion of holding of raiyat under S. 8 of the West Bengal Land Reforms Act, 1955, does not confer right of pre-emption if the land is not used for agricultural purposes.

This Rule is directed against an appellate order where by an appeal from a decision of the learned Munsif in a pre-emption proceeding was allowed in part. The pre-emption proceeding arises out of an application under S. 8 of the West Bengal Land Reforms Act, 1955. The present opposite party No.1 as the pre-emptor filed an application under S. 8 of the said Act praying for an order enabling him to exercise his right of pre-emption in respect of .02 acres of land which was transferred by one of the co-sharers of the holding in question to the present petitioners. The learned Munsif allowed the application for pre-emption. He however found that the consideration that passed at the time of the lflll1sfer on the basis whereof the pre-emption is claimed was Rs. 1000/- and not Rs. 3000/- as stated in the kobala in question.

2. On appeal by the present petitioners before the court of appeal below, it was held that Rs. 3000/- was the consideration and not Rs. 1000/- as found by the learned Munsif. The appellate court however affirmed the learned Munsif's order granting pre-emption.

3. Mr. Saktinath Mukherjee, learned Advocate appearing in support of the Rule contends, in the first place, flat the application under S. 8 does not disclose such materials as are pre-requisites of an application under S. 8 of the said Act and that on that ground alone the application for pre-emption should have been dismissed. Mr. Mukherjee further contends that the land in question was not agricultural land and that accordingly the application under section S of the said Act will not lie.

4. In support of the first contention of his, Mr. Mukherjee relies on the decision in Saranan Mondal & Anr. v. Bejoy Bhusan Ghosh, AIR 1979 Cal 174; In that case it is held that before an application under S. 8 of the said Act may lie it is incumbent on the petitioner to state that there was transfer of either a portion or a share of the holding of a raiyat and that in the absence of the such an averment the application should be dismissed. In the said application under S. 8 it is stated, inter alia, that the land in question originally belonged to the father of the applicant and others, that though at the time of preparation of the Record of Rights that land was recorded as sali the father of the applicant constructed several shop rooms on the land which was by the side of a big thoroughfare known as Benaras Road and that after the death of the father of the applicant his heirs and legal representatives were possessing the same by realising rents. It is further case of the applicant appearing from paragraph 2 of the said application under S. 8 that after the Government demolished those rooms for the purpose of widening the said big thoroughfare, the applicant at a considerable cost built new rooms in 1975 including five shop rooms and has been in possession of the same by realising rents from the tenants. Thus the case of the applicant is that even though at the time of the settlement record the land in question was recorded as sali laud which means agricultural land, it was not used as such but it was used for purposes non-agricultural by constructing shop rooms thereon and by inducting tenants in those rooms. Nowhere in the said application under S. 8 did the applicant state that the transfer made by the O.P. No. 3 Sabitri Bala, who was one of the co sharers in respect of the land, to the present petitioner was a transfer of a share or a portion of a holding of a raiyat. On the other hand the averments referred to above would show that there were room, constructed on the land in question and those rooms were let out to tenants and were being used as shop rooms.

5. Mr. Bankim Chandra Dutta, learned Advocate appearing for the opposite party contends that the character of the land should be determined with reference to its user at the time of the Record of Rights. According to Mr. Dutta, when the land was recorded as sali in the R.S. Record the courts below rightly he