A non-agricultural tenant who holds non-agricultural land under another person and is or but for a special contract would be liable to pay rent to such person for that land, can exercise the right of pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949.

B.C. Chakrabarti, J.

This revisional application under S. 115 of the Code of Civil Procedure is directed against an appellate Order affirming an order for pro-emption passed in Mis. Case No. 60 of 1967 of the 1st Court of Subordinate Judge at Hooghly.

2. The petitioner before us is the pre-emptee. The application for pre-emption under S. 24 of the West Bengal Non-Agricultural Tenancy Act was filed by the Opposite Party Kshirodabala in respect of a sale dated October 15, 1966 whereby the proforma O.P.2 Bejoy Krishna Deb sold plot No. 1324/1410 appertaining to Khatian No. 369 to Nikhil Chandra Sanyal, the petitioner before us.

3. The case of the pre-emptor briefly was as follows :-

Plot No. 1324 was a big garden measuring 185 decimals of land, different portions of which were purchased by different persons at different times. During the revisional settlement operations the plot was sub-divided into several Bata plots in the names of the purchasers. Bata plot Nos. 1324/1411, 1324/1412, 1324/1414, and 1324/1415 have been recorded in the same of the pre-emptor. She has constructed a house on plot 1324/1411 and has been residing there since 1953. Plot No. 1324/1410 was recorded in the name of O.P. Bejoy Krishna Deb. He sold away the said plot to Nikhil Ch. Sanyal by a deed of sale dated October 15, 1966 without any notice or intimation to the pre-emptor Kshirodabala. The property sold is to the contiguous west of her plot. She therefore claimed to pre-empt the Sale under S 24 of the Non Agricultural Tenancy Act.

4. This application was initially filed before the learned Munsif, 1st Court. Hooghly, who not having the pecuniary jurisdiction to entertain the application, returned the same to the filing lawyer for presentation to proper Court. It was later filed before the Learned Subordinate Judge, 1st Court, and registered as Mis. Case No. 60/1967.

5. The petitioner before us, Nikhil Ch. Sanyal and his vendor Bejoy Kr. Deb opposed the prayer for pre-emption by filing a written objection. The principal objections raised by them were that the disputed property did not appertain to a non-agricultural tenancy, that the status of the owners of khatian 369 was that of a proprietor and that the application was otherwise barred by limitation.

6. There was no dispute that one Shyamlal Ganguly originally held the lands of Khatian 369. There was also no dispute that the pre-emptor and preemptee's vendor Bijoy Deb purchased different portions from Shyamlal on different dates. The pre-emptor Kshirodabala (O.P. No. 1) purchased from Shyamlal on August 13, 1953. The petitioner's vendor purchased from Shyamlal on August 20, 1953. The impugned transfer to the petitioner from Bejoy Deb is dated October, 1966. The principal point on which the prayer for pre-emption was contested in the Courts below was that holding recorded under khatian no. 369 is not a non-agricultural holding and that therefore the application under S. 24 of the Non Agricultural Tenancy Act was not maintainable. No other bar except a plea of limitation was pleaded.

7. Curiously however, the certified copies of the revisional settlement records produced by the parties appeared to be conflicting. The records produced by the pre emptor (Ext 1a and 1b) indicated a non-agricultural holding the expression Dakhalkar appearing therein being a clear pointer. Strange though it may seem, in the records produced by the contenting purchaser (petr.) the expression Dakhalkar was not written and what was written instead was "malik". The ld. Subordinate Judge attempted to resolve the conflict by calling for the original record from the settlement office. Unfortunately it proved futile because the material portion of that record also was found mutilated. Upon a reference to the C.S. record and other document produced at the trial the ld. Subordinate Judge found that the property appertained to a non-agricultural holding and that the application for pre-emption was maintainable.

8. It was also contended