Klnuram Sadhukhan v. Hazi Md Yusuf — 1958 DIGILAW 295 (CAL)

JUDGMENT 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. 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 Non-Agricultural Tenancy Act. It is the legality of this view that is the subject-matter of the first point. Section 5 (2) of the Bengal Tenancy Act defines a "raiyat" as "primarily a person who has acquired a; right to hold land for the purpose of cultivating it by himself or by the members of his family or by servants or laborers or with the aid of partners. . . . . . . . . . . . ". . . . . . . . . . . . ". The essence of a raiyati lease is, according to this definition, cultivation and the purpose of the lease is the sole determining factor on the question whether a person is a raiyat. The definition of an under-raiyat as given in section 4 (3) is a tenant "whether holding immediately or mediately under raiyats". It is remarkable that though the purpose at the lease is the all important factor in determining whether a. person is a raiyat there is no reference to the purpose of the lease, in the definition of an under-raiyat. In order to be an under-raiyat the only thing that is necessary according to the definition is that he should hold "immediately or mediately under a raiyat", the purpose of the lease being wholly immaterial. Consequently a sub-lease granted by a raiyat for non-agricultural purposes is as much an under-raiyati tease within the meaning of section 4j (3) of the Bengal Tenancy Act as a sub-lease granted for agricultural purposes. In other words, if the head-lessee be a raiyat the under-lessee will be an under-raiyat under the Bengal Tenancy Act, no matter whether the under-raiyat holds the land for agricultural or non-agricultural purposes. This view has been consistently held by this Court ever since the year 1904 when Babu Ram's case (1) (8 C. W. N 454) was decided. In the last reported decision on this point in the case of Arun Kumar v. Durga Charan (2) 45 C. W. N. 805, Mukherjea and Roxburg, JJ. struck a discordant note but in view of the fact that the definition of under-raiyat had not been altered by the legislature in spite of numerous amendments of the Bengal Tenancy Act in other respects, they followed the principle laid down in Babu Ram's case (1 ). If the principle of these decisions be applied to the facts of the present case there is no escape from the conclusion that the petitioners are under-raiyats as defined by section 4 (3) of the Bengal Tenancy Act not withstanding the fact that they hold the land for non-agricultural purposes. The learned Subordinate Judge has relied on the case of Munshi Alauddin (3) 41 C. W. N. 1001, decided by Henderson and Biswas, JJ. The learned Subordinate Judge has relied on the case of Munshi Alauddin (3) 41 C. W. N. 1001, decided by Henderson and Biswas, JJ. where it was held that if the initial letting be for non-agricultural purposes, e. g. collection of rents, the Bengal Tenancy Act has no application in spite of the; fact that the land is agricultural land. This case has no bearing on the status of an under-lessee of a raiyat and is wholly irrelevant for the purpose of determining the status of the petitioners Mukherjea, J. in Arun Kumar's case (2) also distinguished Munshi Alauddin's case (3) on this ground. 3. MR. Ghose, who is a great authority on the Bengal Tenancy Act, realised the difficulty of supporting the conclusion of the learned Subordinate Judge and made a strenuous attempt to establish that the opposite party No. 1 is a non-agricultural tenant as defined by section 2 (5) read with section 2 (4) and section 3 of the Non-Agricultural Tenancy Act and the petitioners are under tenants as defined by section 3 (3 ). According to section 2 (5) a non-agricultural tenant is a "person who holds non-agricultural land under another person and is. . . . . . . . . . liable to pay rent to such person for that land. . . . According to this definition the non-agricultural land must by itself constitute an independent unit of tenancy. Where the non-agricultural land is held along with other agricultural land within one tenancy and one portion is separated from the rest and is used for non-agricultural purposes without splitting up the tenancy, the requirements of the definition are not fulfilled. This is also clear from the definition of a tenant in section 3 (2 ). According to that definition "tenant" means "a person who has acquired from a proprietor or tenure-holder a right to hold non-agricultural land for any of the purposes provided in this Act", the purposes being provided for in sections 4 and 5 of the Act. There is nothing on the record to show that the opposite party No. 1 acquired from a proprietor or tenure-holder the right to held the chandina land within which the disputed land is situate for any of the purposes enumerated in section 4 or 5. There is nothing on the record to show that the opposite party No. 1 acquired from a proprietor or tenure-holder the right to held the chandina land within which the disputed land is situate for any of the purposes enumerated in section 4 or 5. If the non-agricultural land by itself does not constitute the subject-master of a separate tenancy and is a fraction of lands held partly for agricultural and partly for non-agricultural purposes, the tenant holding such a land cannot be said to be a non-agricultural tenant within the meaning of section 4 (5) or a tenant within the meaning of section 3 (2) of the Act. 4. IN the application for pre-emption filed by the opposite party No. 1 it is nowhere stated that he is a non-agricultural tenant; on the other hand, in paragraphs 2 and 3 of the application it is alleged that the two petitioners are non-agricultural tenants under him. In spite of this pleading the learned Munsif held that the opposite party No. 1 is a non-agricultural tenant and consequently the petitioners are under-tenants and in the appellate court it was conceded that the opposite party No. 1 is an occupancy raiyat. In his argument before us Mr. Ghose sought to uphold the findings of the learned Munsif. In view of this divergence between pleading and proof and the conflicting findings arrived a by the courts below on this vital point as to the status of the opposite party No. 1, I have myself examined the relevant materials on the record which consist of the description as given in the application for pre-emption and the record-of-rights. The property in dispute has been described in three schedules to the application : schedule Ka consists of 13 Chittaks 35 sq. ft. of land bearing a proportionate rental of Rs. 8-10-0 out of a chandina jama of 14 chittaks 35 sq. ft. bearing a total rent of Rs. 9-13-0 the maliki khatian being Khatian "no. 350. The maliki Khatian No. 350, Ex. C (l) shows that the opposite party No. 1 along with his co-sharers are occupancy raiyats in respect of a total area of 49 acre of land paying a rent of Rs. 4-1-0 to the superior landlord Haridas Ghose and others. 9-13-0 the maliki khatian being Khatian "no. 350. The maliki Khatian No. 350, Ex. C (l) shows that the opposite party No. 1 along with his co-sharers are occupancy raiyats in respect of a total area of 49 acre of land paying a rent of Rs. 4-1-0 to the superior landlord Haridas Ghose and others. It further shows that one plot of the jama, being plot No. 313 having an area of 38 acre is in the khas possession of the opposite party No. 1 and his co-sharers. The corresponding subordinate khatian-Ex. C (3) -shows that plot No. 313 has been subdivided into plot No. 313/1289 having an area of 02 acre and is held by petitioner No. 1 (Kinuram) as a shop room on payment of a rent of Rs. 9-13-0 to the opposite party No. 1. The net result is that out of a total area of 49 acre held by the opposite party No. 1 as an occupancy raiyat he has sublet a small portion of 02 acre to petitioner No. 1 for non-agricultural purposes. 5. SCHEDULE Kha, consists of 8 chittaks 31/2 sq. ft. of land bearing a proportionate rent of Rs. 5-8-0 out of a chandina jama of 11 chittaks 1/2 sq. ft. bearing a total rent of Rs. 6-0-9-the maliki khatian being khatian No. 350. The entries in the maliki khatian have already been stated by me in connection with Schedule Ka. The corresponding subordinate khatian-Ex. C (4)-shows that plot No. 313 has been further subdivided into plot No. 3l3/1299 having an area of 01 acre which is held by petitioner No. 2 (Surabala) as a shop room on payment of a rent of Rs 6-0-9 to opposite party. No. 1 and his co-sharers. Here, again, the result i3 that out of a total area of 40 acre held by opposite party No. 1 as an occupancy raiyat he has sublet a small portion of 01 acre to petitioner No. 2 for non-agricultural purposes. 6. SCHEDULE ka consists of 7 chittaks 9 sq. ft. of land bearing a proportionate rent of Rs. 5-8-0 out of a chandina jama of 8 Chittaks 13 1/2 sq. ft. bearing a total rent of Rs. 6-14-0 being described as plot No. 31311250 of maliki khatian No. 160. This maliki khatian -Ex. 6. SCHEDULE ka consists of 7 chittaks 9 sq. ft. of land bearing a proportionate rent of Rs. 5-8-0 out of a chandina jama of 8 Chittaks 13 1/2 sq. ft. bearing a total rent of Rs. 6-14-0 being described as plot No. 31311250 of maliki khatian No. 160. This maliki khatian -Ex. C -shows that opposite party No. 1 and his co-sharers are occupancy raiyats in respect of a total area of 1'. 52 acres of land on payment of a rent of Rs. 18-3-5 to superior landlord Out of this total area of 1. 53 acres 1. 26 acres are held in khas possession by the opposite party No. 1 and his co-sharers. These khas lands consist of four plots and one of these four plots is sub divided into plot No. 313/1250 having an area of 25 acre. The corresponding subordinate khatian, is not on the record but it is quite clear front the maliki khatian itself that a small fraction of the total land held by opposite party No. 1 and his co-sharers as occupancy raiyats has been sublet, for non-agricultural purposes. From what has been stated above it is clear that opposite party No. 1 did not acquire from the proprietor or tenure-holder the right to hold non-agricultural land for any of the purposes provided in the Non-Agricultural Tenancy Act and he is therefore not a "tenant" as defined by section 3 of the Act. Nor can he be said to be a "non-agricultural tenant" as denned by section 4 (5) of the Act, because the non-agricultural portion of the land does not form the subject matter of a separate tenancy between opposite party. No. 1 and his superior landlords. This is precisely a case where an occupancy raiyat has carved out a small portion of his entire holding and sublet that portion for non-agricultural purposes and it falls within the principle laid down in Babu Ram Roy's case (1) 8 C. W. N. 454 and followed in a series of cases ending with Arun Kumar (2) 45 C. W. N. 805. Both the courts below have relied upon the decision of Chunder, J. in the case of Achala Sundari (4) 57 C. W. N. 703 in which it was held that "land which comes within the Bengal Tenancy Act and is excluded is only land mentioned in sub-clauses (b) and (c) of clause (4)". Both the courts below have relied upon the decision of Chunder, J. in the case of Achala Sundari (4) 57 C. W. N. 703 in which it was held that "land which comes within the Bengal Tenancy Act and is excluded is only land mentioned in sub-clauses (b) and (c) of clause (4)". In other words, if a parcel of land does not fall within 1he exceptions enumerated in sub-clauses (b) and (c) of clause (4) it must be governed by the Non-Agricultural Tenancy Act. With great respect to the learned Judge who decided that case I venture to think that this decision does not give effect to the definition of a tenant in section 3 (2) according to which it must also be proved that the tenant "acquired from the proprietor or tenure-holder a right to hold non-agricultural land for any of the purposes specified in the Act". That is to say, it must first of all be proved that the land in respect of which non-agricultural tenancy is claimed forms the subject-matter of a separate tenancy. In the present case there is nothing on the record to show that opposite party No. 1 is a tenant as defined in section 3 (2); there is nothing to show that he acquired from his lessors the right to hold the land for any of the purposes provided in the Act. On the other hand, the record-of-rights which I have already discussed unmistakably points to the conclusion that he is an occupancy raiyat in respect of the land in dispute. There is still another reason why I am bound to hold that Achala Sundari's case (4) was not rightly decided. In that case the series of decisions which hold that if a raiyat carves out a portion of the land of his tenancy and sublets it for non-agricultural purposes, the sub-lessee will be an under-raiyat as defined in the Bengal Tenancy Act and the incidents of the sub-lease will be governed by the Bengal Tenancy Act, were not cited before the learned Judge and his decision is contrary to those decisions. Accordingly, I hold that the opposite party No. 1 is not a non-agricultural tenant within the meaning of the Non-Agricultural Tenancy Act. 7. MR. Accordingly, I hold that the opposite party No. 1 is not a non-agricultural tenant within the meaning of the Non-Agricultural Tenancy Act. 7. MR. Ghose also relied upon section 16 of the Non-Agricultural Tenancy Act for the purpose of establishing the proposition that whatever might be tie status of the opposite party No. 1 the petitioners are under-tenants within the meaning of the Non-Agricultural Tenancy Act whether their tenancies were created before or after the commencement of the Act. This argument is also without any substance. Section 16 merely provides that the provisions of Chapter IV will apply to all undertenants. Section 24 under which the opposite party No. 1 claims relief is not a provision of Chapter IV but of Chapter V. There is, therefore, no warrant for the proposition that the petitioners will be deemed to be under-tenants also for the purposes of section 24 of the Act. For these reasons I hold that the first point raised by the petitioners must succeed and I hold that the petitioners are under-raiyats within the meaning of the Bengal Tenancy Act and are governed by the provisions of that Act and consequently section 24 of the Non-Agricultural Tenancy Act has no application. Section 72 of the Non-Agricultural Tenancy Act provides for the conversion of an agricultural tenancy into a non-agricultural tenancy and until the opposite party No. 1 converts the chandina portion of his occupancy holding into a non agricultural tenancy by a proceeding under section 72 he is not entitled to any relief under the Non-Agricultural Tenancy Act. 8. THE second point raised in support of the Rule is that assuming that the Non-Agricultural Tenancy Act applies to this case the opposite party is an intermediary as defined by section 2 (2) (i) of the West Bengal Estate. 3 Acquisition (Amendment) Act of 1957 (West Bengal Act IV of 1957) and therefore his interest has vested in the; State of West Bengal and consequently he is not the immediate landlord of the petitioners. That section is in the following terms:- "sec. 2. In section 2 of the West Bengal Estates Acquisition Act. . . . . . . . . . . . . . . . . . . . That section is in the following terms:- "sec. 2. In section 2 of the West Bengal Estates Acquisition Act. . . . . . . . . . . . . . . . . . . . (2) for clause (i) the following clause shall be substituted and be deemed always to have been substituted, namely, (i) 'intermediary' means a proprietor, tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant. . . " The last sentenance in para. 1 of the application under section 24 is this: (Kinuram Sadhukhan) Non-Agricultural Tenant". In para. 3 of the application there is a sentence which runs as follows: "surabala Dasi non-agricultural tenant". Kinuram and Surabala are the two petitioners before us and according to the statements made in paragraphs 1 and 3 the opposite party No. 1 is a person above a non-agricultural tenant and therefore an intermediary within the meaning of section 2 (2) (i) of the West Bengal Act IV of 1957. 9. ACCORDING to section 5 (c) of the Estates Acquisition Act as amended by section 3 of the West Bengal Act IV of 1957, "every non-agricultural tenant holding any land under an intermediary and until the provisions of Chapter VI are given effect to, every raiyat Holding any land under an intermediary, shall hold the same directly under the State, as if the State had been the intermediary. . . . . . . . . . . . ". We are not concerned in this case with the date on which the provisions of Chapter VI were given effect to, because upon the allegations in the application for pre-emption the petitioners are; non-agricultural tenants and not raiyats. If the opposite party No. 1 be compelled to stick to the statements; made by him in his application for preemption, and there is no reason why we should allow him to resile from them, the petitioners. hold their non-agricultural tenancy directly under the: State with effect from the date of vesting upon the publication of the notification under section 4, i. e. from the 1st Baisakh, 1362 B. S., corresponding to the 14th April, 1955. hold their non-agricultural tenancy directly under the: State with effect from the date of vesting upon the publication of the notification under section 4, i. e. from the 1st Baisakh, 1362 B. S., corresponding to the 14th April, 1955. The result is that upon the allegations made by the opposite party No. 1 in his application, under section 24 of the Non-Agricultural Tenancy Act he ceased to be the: immediate landlord of the petitioners: and as such his application is liable to be dismissed on this ground as well. 10. A good deal of confusion has been, created in this case in the courts below as well as before us as a result of allowing the opposite party No. 1 to resile from the statements made by him in. his pleading and to make a new case: at the time of trial before the Munsif: and another case in the court of appeal below. I have already stated that the Munsif held that the opposite party-No. 1 is a non-agricultural tenant and the petitioners are under-tenants, though that was never the case in the pleading. In the appellate court again the opposite party No. 1 admitted that he was an occupancy raiyat but contended. that the petitioners are non-agricultural tenants. In this Court again Mr. Ghose sought to support the decision of the learned Munsif. A third point was raised before us in support of the Rule and that is to the effect that since the opposite party No. 2 (Monohar Chandra Das) executed a reconveyance in favour of the petitioners long before the date of filing the application for pre-emption the transfer contemplated by section 24 of the Non-Agricultural Tenancy Act had no existence in the eye of law and, therefore, the opposite party No. 1 had no right to pre-empt under section 24. On behalf of the petitioners reliance was placed on the case of Sital Chandra v. Mihirlal (5) 58 C. W. N. 1000 decided by P. N. Mookerjee and Sen, JJ. On behalf of the petitioners reliance was placed on the case of Sital Chandra v. Mihirlal (5) 58 C. W. N. 1000 decided by P. N. Mookerjee and Sen, JJ. whereas the opposite party No. 1 relied upon the case of Nishi Kanta v. Jnanendra Nath (6) 57 C. W. N. 253 decided by Chakravartti, C. J. and Sinha, J. In the former case it was held that an agreement for reconveyance was binding upon the pre-emptor provided he had notice of it whereas in the latter case it was held that a subsequent conveyance or reconveyance by the transferee is subject to the preemptor's rights under section 26f of the Bengal Tenancy Act. Though both the cases are under section 26f of the Bengal Tenancy Act, the same principles will govern the rights of the parties under section 24 of the Non-Agricultural Tenancy Act. In view of the fact that there is a divergence of judicial opinion on the point, we express no opinion on this question as we are giving relief to the petitioners on the first two points. 11. THE second point on which the petitioners succeed was argued before us as an alternative to the first point and I have decided that point upon the pleading of the opposite party No. 1. On the materials on the record, however, and particularly the record-of-rights, Ex. C series, I hold that the opposite party No. 1 is an occupancy raiyat and the petitioners are under-raiyats under him and are governed by the Bengal Tenancy Act. In the result, I would make this Rule absolute and set aside the orders made by the Courts below and dismiss the application filed by the opposite party No. 1. Under ordinary circumstances I would not have made any order for costs, but in view of the fact that the opposite party No. 1 changed his case at the time of trial and again in the appellate court and also before us, I direct that the petitioners should get their costs in all the courts from the opposite party No. 1, hearing fee in this Court being assessed at five gold mohurs.