JUDGMENT 1. THIS rule was obtained against an order dated the 18th of August, 1976 passed by the learned Additional Sessions Judge, burdwan in Misc. Appeal no. 55, 56, 57 and 58 of 75 (heard analogously) reversing an order dated the 26th of april, 1975 passed by the learned Munsif, Kalna in pre-emption case no. 57, 58, 59 and 61 of 72. 2. THE four miscellaneous cases (nos. 57, 58, 59 and 61 of 72) before the learned Munsif of Kalna with regard to pre-emption were originally filed before the S. L. R. O. The property in dispute forms part of plot nos. 317, 318 and 330 of mouja Jharbati appertaining to khatian no. 346. There were tour sale deeds executed on the same day by the same person but to different person. The opposite party no. 1 claimed right of pre-emption as he had lands adjoining plot no. 318 which is a tank comprising an area of 2. 09 decimal, plot no. 317 which is a bank of the said tank and includes another area of 63 decimal and plot no. 313 which is also a bank of a tank with an area of. 80 decimal, when the owner of the aforesaid plots sold his interest to four different persons which were registered in four different sale deeds on the same day. Thus the opposite party's claim was preferred on account of vicinage. The present petitioner resisted the claim for pre-emption on the ground, inter alia that the property in dispute was non-agricultural land as they were mainly tank and bank of the tank. The learned Munsif disallowed the claim on the ground that the land was agricultural and that the claimant was a big raiyat against whom a B. R. case had been started. The learned appellate court noted that a Civil Rule No. 4. 40 of 69 was obtained in a big raiyat case and this court ultimately directed title pre-emptor to submit 'b' form along with some other directions. In the said circumstances, the appellate Court thought that it could not be conclusively held that the pre-emptor was having land above the ceiling. The learned appellate Court also noted that the land was 'settled with a raiyat'. He held that "actual use of the land for agricultural purpose was not a condition precedent" to enforce the right of preemption. In the said circumstances, the appellate Court thought that it could not be conclusively held that the pre-emptor was having land above the ceiling. The learned appellate Court also noted that the land was 'settled with a raiyat'. He held that "actual use of the land for agricultural purpose was not a condition precedent" to enforce the right of preemption. The court also thought that under Section 8 (1) of the West Bengal land Reforms Act the nature of the land transferred was not to be taken into consideration. "the entire property held by the raiyat" was to be treated as a unit. On those considerations he allowed the claim for pre-emption and the same is challenged in this rule. Mr. Ranjit Kumar Banerjee, appearing in support of the Rule contended that as the subject-matter of conveyance was only a tank and its bank, comprising 3. 52 acres (2. 09 +. 63 +. 80) it would not be treated as agricultural land. Section 2 (7) of the West bengal Land Reforms Act provides that "land" means agricultural land. Moreover, by a later amendment, firstly by the president's Act 3 of 1971 and thereafter by the West Bengal Land reforms (Amendment) Act, 1972 (Act XII of 72) it was provided that land does not include a tank. In the case of Fakir Chandra Chakraborty v. L. K. Jha, reported in 74 C. W. N. 946 a Division Bench of this court held that the tank would come within the definition of non-agricultural land as contained in Section 2 (3) of the West bengal Estates Acquisition Act. In a later case B. K. Saha vs. Revenue Officer, reported in 76 C. W. N. 367 it was also held that as a tank was not used ordinarily for the purpose of agriculture or horticulture it is not agricultural land, even though it may be used for drinking purpose or other purposes including irrigation. In this connection mr. Banerjee drew the attention of the court to the R. S. Record in which the tank was referred to be meant for "shecher Jannay" (for the purpose of irrigation ). Even so the tank can be regarded as nothing else than non-agricultural land by virtue of the amended provision and the said decision in 76 C. W. N. 367. Banerjee drew the attention of the court to the R. S. Record in which the tank was referred to be meant for "shecher Jannay" (for the purpose of irrigation ). Even so the tank can be regarded as nothing else than non-agricultural land by virtue of the amended provision and the said decision in 76 C. W. N. 367. The expression 'agriculture' came to be considered at some length by the Supreme Court in a decision reported in A. I. R. 1957 S. C. 768 (Commissioner of I. T. West Bengal v. Benoy Kr. Suhas Roy ). In substance it held that "agriculture" in its root sense means agree a field and culture-cultivation, cultivation of field which of course implies expenditure of human skill and labour upon land. The term, however, has acquired a wider significance and that is to be found in the various dictionary meanings as ascribed to it which use it both in narrow sense of the cultivation of the field and the wider sense of comprising all activities in relation to the land including horticulture, forestry, breeding and rearing of livestock, dairying, butter and cheese-making, husbandry etc. Following the aforesaid does on of the Supreme Court the express on "agriculture" was given wider connotation in another decision of this court reported in 69 C. W. N. 428 (Tea Estates India (P) Ltd. vs. Commissioner of Wealth, Tax. W. B. Calcutta ). 3. MR. Dasgupta, opposing the rule, however, contended that preemption was an incident of property as was held by the Supreme Court in A. I. R. 1954 S. C. 417 (Audh Behari singh vs. Gajadhar Jaipuria and ors.)The right which was created when transfer was made was not violative of fundamental right. The right remained with land. As it is not a mere personal right, the right of pre-emption which appertain to the owner of the vicarage should continue. In this case, mr. Dasgupta argued, if the right of pre-emption was there at the inception why should it be lost in 1971 by virtue of the amendment? The amendment to section 2 (7) again was to take effect retrospectively but upto 12.2.1971. The retrospectivity does not extend further back. The right of pre-emption being a substantive and vested right it could not be divested. Mr. Dasgupta referred to section 8 and section 8 (A) f the West Bengal General Clauses Act in this regard. The amendment to section 2 (7) again was to take effect retrospectively but upto 12.2.1971. The retrospectivity does not extend further back. The right of pre-emption being a substantive and vested right it could not be divested. Mr. Dasgupta referred to section 8 and section 8 (A) f the West Bengal General Clauses Act in this regard. He further argued that section 8 of the W. B. Land Reforms act speaks only of a 'holding'. Under section 9 (6) of the Land Reforms Act 'holding means a land or lands held by a raiyat and treated as a unit for assessment of the revenue'. Now the subject matter of this case were three dags 318, 317 and 330 of the khatian 346 or the jama In the holding there are other properties. What section 8 speaks of is "portions or share" of holding. In the circumstances since the pre-emption application related to a share of the holding it did not matter if a part of the holding comprised agricultural land, a part non-agricultural land or tank. According to Mr. Dasgupta what was of importance is 'holding'. That was quite different from land. The right does not depend on the land which is defined in section 2 (7). It depends on the entire holding. 4. IT would thus appear that Mr. Dasgupta would lay emphasis on the the word 'holding' which is referred to in section 8 irrespective of the definition elsewhere. But on scrutiny it is difficult to accept the argument. Even a 'holding' under section 2 (6) of the w. B. Land Reforms Act means "land or lands held by a raiyat and treated as a unit for assessment of revenue". "land" again under section 2 (7) means 'agricultural land' and by dint of the: amendment excludes tank from 12th of, February, 1971. If, therefore, 'land' can only mean agricultural land under the West Bengal Land Reforms Act "holding" in terms of the Act cannot but refer to "agricultural land". Under the West Bengal Land Reforms Act retention seems only to relate to raiyati land. Unlike the Estate Acquistion Act which dealt with lands of various kinds including homestead, non-agricultural land. etc. the West Bengal Land Reforms Act is confined only to agricultural land. Under the West Bengal Land Reforms Act retention seems only to relate to raiyati land. Unlike the Estate Acquistion Act which dealt with lands of various kinds including homestead, non-agricultural land. etc. the West Bengal Land Reforms Act is confined only to agricultural land. Unlike the ceiling prescribed in the Estate Acquistion Act the new ceding depends on members of family and other consideration dealt with under section 14 (M ). In a decision, Kanajial Jana v. Mrityunjay Patra, reported in 1977 C. H. N -. 577 Chanda, J. also held that by virtue of the amendment, rank lost its character of land and therefore there could not be any plaint for pre-emption in respect of a, tank. He also rejected the submission that the tank and its bank constituted one holding and could not be split up and the water portion distinguished from the dry portion. In that case the banks were held to be necessary for the use of the tank and could not be regarded as agricultural land. I am, therefore, inclined to accept the contention of Mr. Banerjee and hold that the subject matter of pre-emption being mainly a tank, (even though meant for irrigation purpose) it is non-agricultural land. Again, in Bhagaban Das vs. Chetram reported in A. I. R. 1971 S. C. 369 the Supreme Court held that the pre-emptor, in order to succeed must have the right to pre-empt not only at the time of sale of the land by the landlord but also at the time of the institution of the suit for pre-emption and also at the time of passing of the decree in the suit by the trial court, The supreme court relied in this connection on the cases of Manas Nath v. Ragho prosad Singh, reported in 59 Indian appeal 138, Thakur Madho Singh vs. 433 and Fizar Mohamad vs. Firoz Ali khan, reported in A. I. R. 1944 Lahore 172. It also relied on the full Bench decision of the Punjab High Court in a. I. R. 1966 Punjab 374 (Ramji Lal v. State of Punjab) which held that the rule that the pre-emptor must maintain his qualification to pre-emption upto the date of the decree was recognised as well settled. These series of judgments seem to support Mr. It also relied on the full Bench decision of the Punjab High Court in a. I. R. 1966 Punjab 374 (Ramji Lal v. State of Punjab) which held that the rule that the pre-emptor must maintain his qualification to pre-emption upto the date of the decree was recognised as well settled. These series of judgments seem to support Mr. Banerjee's other contention that at the time of passing of the judgment the pre-emptor did not retain any right to pre-empt. Even though a tank was not excluded from agricultural land when the application for pre-emption was made, by dint of the amendment already referred to above a tank ceased to be land within the meaning of section 2 (7) of the W. B. Land Reforms Act at the time of hearing of the case and the passing of the judgment. 5. IN view of the uniform decision of the Supreme Court and the Privy council that the right of pre-emptor must continue till the passing of the decree or the judgment it is difficult to uphold the contention of Mr. Dasgupta that the right of pre-emption being attached to land and the same right being a vested one could not be divested at the time of hearing of the case by dint of an amendment of the legislature. It is true that in most of the cases the facts were that the pre-emptor did not continue to hold the tenancy at the time of passing of the decree whereas in the present case there was no such change in tenancy. There was only a change in the situation due to an Act of the legislature. But the formulation of the law by the Privy Council, Supreme Court and the other decisions, in the rigid form which has been accepted as settled, for a long time, seems to exclude the possibility of variation as suggested by Mr. Dasgupta. Generalisations, like ready made garments, hardly fit at all points. Formulation of a general principle has its advantages. It may be applied readily in a specified field yet its difficulty is that it may be unable to meet the requirement of all individual cases. This deficiency, however, results from the character of law itself in failing to meet the infinite variety of things and circumstances by a general and universal rule. It may be applied readily in a specified field yet its difficulty is that it may be unable to meet the requirement of all individual cases. This deficiency, however, results from the character of law itself in failing to meet the infinite variety of things and circumstances by a general and universal rule. In any event there seems to be no escape from the binding nature of the decisions. I, therefore, accept this contention of Mr. Banerjee as well. 6. IT was, further contended by Mr. Banerjee that the claim for emption could only succeed provided the transfer of the land in question would not exceed the limit mentioned in section 14 (M) of the W. B. Land Re-foot. Act Section 8 of the Act itself makes it clear that the pre-emptor's right is "subject to the limit mentioned in section I4 (M). Mr. Banerjee drew the attention of the court to an order of the High Court passed in Civil Rule No. 440 (W) of 1969 in relation to a big raiyat case in which this court directed the pre-emptor to submit a return in B form. The learned appellate Court thought that it could not be held conclusively from the above circumstance that the pre-emptor was having land above the ceiling. Mr. Banerjee criticized this approach of the court to be a wrong one. The said court itself records elsewhere, referring to the cross-examination of the pre-emptor himself, that he got a total area of 50 to 55 bighas. Mr. Banerjee commented that at the time of making admission possibly the pre-emptor was thinking in terms of a ceiling under the Estates Acquisition Act which is quite different from the ceiling under the W. B. Land reforms act. Mr. Banerjee also drew the attention of the court to the submission of the lawyer on behalf of the pre-emptor before the learned Munsif that when the question of retention will arise the pre-emptor would treat "the case lands to be non-agricultural". Mr. Dasgupta, however, argued that the phrase "subject to the limit mentioned in section 14 (M)" in section 8 of the W. B. Land Reforms Act only means that the court was entitled to pass an order with the qualification that the same will be subject to the limit in section 14 (M ). Mr. Dasgupta, however, argued that the phrase "subject to the limit mentioned in section 14 (M)" in section 8 of the W. B. Land Reforms Act only means that the court was entitled to pass an order with the qualification that the same will be subject to the limit in section 14 (M ). It would be the jurisdiction of another forum to consider that aspect viz, the question of ceiling. According to Mr. Dasgupta consideration of ceiling was not a condition precedent to the application of the provisions of section 8. 7. IT is however, difficult to accept the said contention. The scheme of the act shows that under section 14 (7) it would be the duty of the raiyat to furnish return to the Revenue Officer revealing which land he proposes to retain within the ceiling area. The revenue Officer on receipt of the return or on his own notion would determine the extent of land which is to vest in the State under Section 14 (S) and take possession of such land. Section 14 (L)specifically holds that no raiyat is to hold land in excess of the ceiling area. In view of the said provisions it cannot be held that the court without regard to the provision of ceiling would allow preemption. If a court allows an order for pre-emption under Section 8 irrespective of the consideration of ceiling and leaves it to the future to be determined under section 14 (Y) in that case the court may happen to allow the pre-emptor to hold land beyond the ceiling, even if temporarily. A court can hardly make such an order violative of the express provision of the statute. Moreover in that case the decree of the court would be in the nature of preliminary decree to have final effect in future. The provision of section 14 (Y) namely, that if a raiyat acquires any land in future the area in excess of ceiling will best in the State, on which Mr. Dasgupta sought to rely, cannot thus be helpful to him. If section 14 (Y) alone was to take care of excess land under all circumstances then, as Mr. Banerjee pointed out, what was the necessity of incorporating Section 14 (M) ? It is to be borne in mind that he right of pre-emption after all is a weak right. Dasgupta sought to rely, cannot thus be helpful to him. If section 14 (Y) alone was to take care of excess land under all circumstances then, as Mr. Banerjee pointed out, what was the necessity of incorporating Section 14 (M) ? It is to be borne in mind that he right of pre-emption after all is a weak right. By exercising the same the pre-emptor seeks to invade the contractual right of others. There is, therefore, no strong equity in his favour which would induce the court to try to remove the obstacles in this way if possible by exercising its discretion. 8. ANOTHER point to be noted in this connection is that even if the court holds that the phrase "subject to the limit mentioned in section 14 (M)" of the w. B. Land Reforms. Act is a condition precendent, in view of the provisions of order 6 Rule 6 and Order 8 Rule 2 of the Code of Civil procedure it is incumbent upon those who oppose pre-emption to specifically plead that the ceiling would be exceeded if pre-emption is allowed. In the present case the question was gone into by the courts below and there was no contention raised about the point not being raised in the pleadings. In the absence of any pleadings by the pre-emptee it may be implied that the condition precedent was fulfilled. Reference in this connection may be made to the cases of Thakurarsi v. Bhagat Rai, reported in A. I. R. 1961 patna 286 and Azimuddin vs. Hercules insurance Company, reported in A. I. R. 1953 Bombay 61. In the last case it was held by Tendolkar, J. that Order 6 Rule 6 C. P. C. makes it quite plain that am averment of the performance of any condition precedent shall be implied in any pleading and it is for he party who wishes to contest the fact of performance to plead so distinctly and specifically. The last point, Mr. Banerjee argued, was that the entire property being transferred pre-emption in tetras of section 8 could not take place inasmuch as the section contemplates only cases where the portion or share of a holding of a raiyat is transferred to a person other than co-sharer. The case of Krishnapada Biswas vs. Lisha Rani naskar, reported in 78 C. W. N. 779 was cited in this connection. Mr. The case of Krishnapada Biswas vs. Lisha Rani naskar, reported in 78 C. W. N. 779 was cited in this connection. Mr. Dasgupta pointed but that the point was never raised in the courts below. Moreover it involves question of fact which could not be raised in revision. There is substance in the contention of Mr. Dasgupta. The nature of the entire plot and the different portions sold were never scrutinised from this point of view to ascertain if, in fact, the entirety of the plot was sold. Moreover it may be pointed out that in the case of 78 C. W. N. 779 (Supra) facts were different. Some pertinent questions arise in this connection. The legislature obviously contemplates pre-empting both by the co-sharer and neighbours. If in a plot where A. B. C. and D are the owners. A sells his properties to an outsider there is no doubt that B, C and D may apply for pre-emption. But supposing in a case where A owns the entire plot and sells the entirety why cannot the neighbour pre-empt? It is not, however, necessary to go into further details of this aspect of the matter as I have already noted earlier that the questions being a mixed one of fact and law cannot be raised here. 9. HOWEVER, in view of my findings on the other points in favour of Mr. Banerjee the petition succeeds and the Rule is made absolute. There will be no order as to costs. Rule made absolute.