The user of land at the date of vesting under the West Bengal Estates Acquisition Act determines its character as agricultural or non-agricultural, and the transfer of a share or portion of a holding does not give rise to a right of preemption under Section 8 of the West Bengal Land Reforms Act.

Chittatosh Mookerjee, J.

1. This Rule arises out of a proceeding under Section 8 of the West Bengal Land Reforms Act. The Subject matter of the said proceeding was Dag No. 208/726, Khatian No. 447, Mouza Kumardhi, Police Station Kulti, measuring 10 decimals of land. The applicants, who are opposite parties to this Rule claimed that they were the owners of the contiguous lands. On 26.2.1971 the petitioner had purchased by a registered kobala the said 10 decimals of land in Dag No. 208/726 from one Ram Ashis Singh for a consideration of Rs. 2000/- (Rupees Two thousand only). The learned Munsif dismissed the application under Section 8 of the West Bengal Land Reform Act, inter alia, upon a finding that the land in question was non-agricultural land, therefore, the application for preemption under Section 8 of the Act was not maintainable. The learned Subordinate Judge, Asansol, allowed the appeal of the applicants and granted their prayers for preemption under Section 8 of the West Bengal Land Reforms Act, inter alia, upon a finding that the land in question was agricultural.

2. In my view, this Rule is bound to succeed for the reasons presently indicated. It was proved that originally the Rays of Belrui were recorded in C.S. Khatian No. 110 as "Madhyasathadhikari" in respect of Dag No. 208. Thereafter, Pranshankar Chakravorty and Nikhil Chandra Chakravorty had taken from them settlement of 10 decimals of land in Dag No. 208. In the finally published R.S. Khatian No. 447 the names of the said two Chakravorty were recorded as Dakhalkar in respect of 10 decimals contained in Bata Dug No. 208/726. In the remarks column the description of the said Bata plot was stated to be Danga. Pranshankar Chakravorty and Nikhil Chandra Chakravorty had sold the said 10 decimals of land to one Om Prokash Singh by a registered kobala dated 12.12.1960. Om Prokash, in his turn, transferred the suit property to Ram Ashish Singh, the vendor of the petitioner on 14.11.1967. It has already been stated that the petitioner has purchased the land in question from the said Ram Ashish Singh on 26.2.1971. The applicants who happened to be the members of a Managing Committee of a School were recorded in a separate R.S. Khatian in respect of the remaining portion of original C.S. Dag No. 208, but their status was recorded as agricultural tenants.

3. In my view, the lower appellate court committed a jurisdictional error by over-looking the consequences of the provisions of the West Bengal Estates Acquisition Act coming into force. It is true that before the vesting the purpose of the letting and not the user of a particular land was the sure criterion for determination of the nature of a tenancy. Before the commencement of the West Bengal Estates Acquisition Act it was the settled law that if the main lease was governed by the provisions of the Bengal Tenancy Act, then it must be held that all sub-leases of portions of the properties included in the said main lease would be deemed to be agricultural leases. The earliest decision on the point was Baburam Roy vs. Mohendra Nath Samanta, (1904) 8 CWN 454. A long series of decisions re-affirmed this principle that the nature of the original tenancy and not the character of the parcel included in the sub-tenancy would determine whether the sub-tenancy was to be governed by the Bengal Tenancy Act or the Transfer of Property Act. The Supreme Court in Nirshi Dhobin vs. Dr. Sudhir Kumar Mukherjee, AIR 1969 SC 864, declined to re-open the said question be cause the above rule laid down in Baburam Roy vs. Mohendra Nath Samanta case (supra) had become stare decisis.

4. But the provisions of the West Bengal Estates Acquisition Act brought about a material change in the legal position. Clauses (b) and (j) of Section 2 of the West Bengal Estates Acquisition Act defined the expressions agricultural land and non-agricultural land solely with reference to the user of the particular lands. A land ordinarily used for purposes of