JUDGMENT 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. 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 agriculture or horticulture including the lands which may be lying fallow for the time being would be agricultural land within the meaning of the West Bengal Estates Acquisition Act. Lands other than agricultural land or other than land comprised in a forest would be non-agricultural land within the meaning of the West Bengal Estates Acquisition Act. Lands other than agricultural land or other than land comprised in a forest would be non-agricultural land within the meaning of the West Bengal Estates Acquisition Act. In the instant case, the RS Records in respect of the disputed land show that at least 10 decimals of land was being used for non-agricultural purpose at the date of the vesting. Mr. Saha, learned advocate for the opposite parties has not disputed the proposition of law laid down by Bijayesh Mukherji, J. in Asrurekha Dutta vs. Diptimay Pal, (1966) 70 CWN 1079. Therefore, the expression Dakhalkar appearing in Khatian No. 447 raised a presumption that the land in question was nun-agricultural in character. The lower appellate court committed an error of law by ignoring the said entries in the R.S. Khatian and by relying upon the original CS Khatian No. 110. The learned appellate court ova-looked the fact that in the instant case the RS Khatian No. 447 was not a subordinate Khatian but the same was recorded as an independent jama of land and the 10 decimals of land were thus comprised in a separate holding. It was no longer material whether the remaining portion of Dag No. 208 was still agricultural lands or not because according to the RS Records 10 decimals of land were being prima facie used for non-agricultural purpose at the date of vesting. 5. It was also immaterial whether the predecessors-in-interest of the present petitioner were raiyats or under-raiyats or were non-agricultural tenants before the vesting. In case, the said particular piece of land was being used for non-agricultural purpose at the date of the vesting in terms of Section 6(1)(c) of the West Bengal Estates Acquisition Act read with Rule 4(2)(i) of the West Bengal Estates Acquisition Rules, 1954, the said predecessors of the petitioner must be deemed to have held the said land as tenants under the West Bengal Non-agricultural Tenancy Act. Therefore, in either view of the matter Revisional Survey Records raised a presumption that the disputed land was non-agricultural in nature and the lower appellate court acted illegally and with material irregularity in the exercise of its jurisdiction by holding that the CS Records rebutted the presumption of the correctness of the RS Records. Therefore, the instant application for pre-emption under Section 8 of the West Bengal Land Reforms Act was bound to fail. 6. Therefore, the instant application for pre-emption under Section 8 of the West Bengal Land Reforms Act was bound to fail. 6. There is another reason why the instant pre-emption application was liable to be rejected in limini. In this case, the entire holding recorded in Khatian No. 447 was purported to have been transferred by the kobal dated 26.2.1971. When a share or a portion of holding was not transferred, the same did not and could not give rise any right of pre-emption in favour of a contiguous tenant vide Krishnapada Biswas vs. Usha Rani Naskar, (1974) 78 CWN 779. For all these reasons, this Rule succeeds. 7. I, accordingly, make this Rule absolute, set aside the order of the lower appellate court and restore that of the trial court. In the circumstance of the case, both parties will bear their respective costs throughout.