Nikhil Chandra Sanyal v. Sm Khirodabala Nag — 1979 DIGILAW 288 (CAL)

JUDGMENT 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. 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 before the ld. Subordinate Judge that the application for preemption was barred by limitation. It appears that the application was initially filed in the Court of the Munsif on November 22, 1966. The Munsif, for lack of jurisdiction returned the application on June 9, 1967. It was then filed in the Court of the ld. Subordinate Judge on June 12, 1967. The ld. Subordinate Judge found that the time spent in prosecuting the application before the ld. The Munsif, for lack of jurisdiction returned the application on June 9, 1967. It was then filed in the Court of the ld. Subordinate Judge on June 12, 1967. The ld. Subordinate Judge found that the time spent in prosecuting the application before the ld. Munsif was liable to be excluded and on such finding over ruled the pica of limitation. The application for pre-emption having thus been allowed, the petitioner preferred an appeal being Mis. Appeal No. 90/1968 in the Court of the Additional District Judge at Hooghly. The only point urged before him was that the preemptor was not a non-agricultural tenant. The ld. Addl. District Judge found against the appellant and affirmed the order passed by the ld. Subordinate Judge. Hence this revisional application. 9. Mr. Mukherjee appearing on behalf of the petitioner raised three points in support of the petition. Firstly it was contended that the disputed property does not appertain to a non-agricultural tenancy and that the preemptor is not a non-agricultural tenant. Secondly it was contended that with the vesting of Estate under the Estate Acquisition Act, the parties ceased to be co-shares and as such the pre-emptor could not ask for pre-emption. Finally it was contended, that the pre-emptor not having pre-empted the sale to Bejoy, the vendor of the petitioner, the preemptor's right to preempt the subsequent sale by Bejoy to the petitioner became barred by waiver, acquiescence and estoppel. 10. It appears upon a perusal of the C.S. record that the lands covered by khatian 369 appertained to a non-agricultural holding. In the certified copies of the R.S. record produced by the pre-emptor also there are indications to that effect. In order to succeed on an application for pre-emption under S. 24 of the W.B. Non-Agricultural Tenancy Act, the pre-emption must show that he is a non-agricultural tenant. The expression "non-agricultural tenant" has been defined in S. 2(5) of Act, the material part of which reads as follows : -(5) “non-agricultural tenant” means a person 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”. It is nobody's case that the land sought to be pre-empted is not non-agricultural land, but the main contention of the petitioner is that the status of the original owner. It is nobody's case that the land sought to be pre-empted is not non-agricultural land, but the main contention of the petitioner is that the status of the original owner. Shyamal Ganguly was that of a proprietor that no rent was payable for the land and that therefore the subsequent transferee from Shyamlal, namely the pre-emptor, could not be a non-agricultural tenant. The foundation for such a contention is the entry of the expression "malik" in the remarks column of the certified copy of the R.S. record as produced by the petitioner. True that the entry in the record to that effect may in the first blush appear to be impressive but it will be seen presently that the expression does not really indicate what is purports to. 11. There is little doubt that in order to be a proprietor or malik as it is meant in common parlance, one must own an estate or a part of an estate. ‘Estate’ as defined in the B.T. Act means land included in one entry in any of the general registers of revenue paying lands or revenue free lands prepared and maintained under the law for the time being in force, by the collector of a district and includes Government Khas Mahals and revenue free lands not entered in any register. It could not be shown by production of any papers that Shyamlal Ganguly held the lands as an estate and that it had been duly entered into any such register. The ld. Addl. District Judie afforded an opportunity to the appellant to produce such papers if there were any. What was produced was the certified copy of General Register A (Ext. D) which only shows that the land was taken away from Khas Mahal to be entered in the register of revenue free lands. It may be mentioned here that the rent of the holding of Shymal was redeemed in terms of Rule 202 of the Touzi Manual, by a lump payment of 25 times the annual rental. Ext. B is the redemption certificate issued by the Collector of Hooghly to Shyamlal Ganguly in case no. 6 of 1948-49, on payment of 25 times the revenue of the holding in the Khas Mahal bearing Touzi No. 2076. This relate to Khatian No. 369. Now the question is whether this document Ext. B read with Ext. Ext. B is the redemption certificate issued by the Collector of Hooghly to Shyamlal Ganguly in case no. 6 of 1948-49, on payment of 25 times the revenue of the holding in the Khas Mahal bearing Touzi No. 2076. This relate to Khatian No. 369. Now the question is whether this document Ext. B read with Ext. D, indicate that the holding of Shyamal was an estate held by him as a proprietor ? The answer must be in the negative. The fact that the lands were entered in the register of revenue free land after being taken out of Khas mahal was the result of the redemption proceedings. Nothing further is proved by these documents. In the C.S. record also, there are clear indications that rent was not payable in view of the redemption case. The fact that the land appertained to Khas mahal is of no consequence. A Khas mahal is an estate had by Government standing in the place of proprietor. Necessarily a person holding under Khas mahal can not be a proprietor. Ho would be an intermediary if he is not a non-agricultural tenant himself. In this case the contention on behalf of the petitioner is that Shyamlal or for the matter of that his transferee the preemptor, is a proprietor and therefore not a non-agricultural tenant. It is not his case that the land is not non-agricultural land within the meaning of the Act. It is undisputable a non-agricultural land. Shyamlal held the land under Khas mahal and obtained remission from payment of future rent by a lump payment. But for this, he would have been liable for payment of rent. It follows therefore that he comes squarely within the meaning of non-agricultural tenant. The first point urged by Mr. Mukherjee therefore is unsustainable. 12. Mr. Mukherjee next contended that with the enforcement of Chapter VI of the Estate Acquisition Act, the parties ceased to be co-sharers so that the pre-emptor could no longer claim pre-emption. 13. In support of such a contention reliance was placed on the Full Bench decision in the case of Madan Mohan v. Sishubala (A 1972 Cal 502). 12. Mr. Mukherjee next contended that with the enforcement of Chapter VI of the Estate Acquisition Act, the parties ceased to be co-sharers so that the pre-emptor could no longer claim pre-emption. 13. In support of such a contention reliance was placed on the Full Bench decision in the case of Madan Mohan v. Sishubala (A 1972 Cal 502). It was held in that case that after the enforcement of Chapter VI of the W.B. Estates Acquisition Act and the vesting of interest of rayats, the co-sharer rayats of a holding ceased to be co-sharers and each rayat became a direct tenant under the State. Consequently it was further held that as the essential pre-requisite of an application under S. 26F of the Bengal Tenancy Act, namely the existence of a state of co-sharership was lacking, there could be no question of exercising the right of pre-emption. 14. The principle laid down in this decision is inapplicable to the facts of the present case. Section 4 of the Estates Acquisition provides for vesting of estates of intermediaries by notifications issued in that behalf. The definition of the expression "intermediary" as contained in S. 2(i) shows that in order to be an "intermediary" one must have a status above that of a rayat or a non-agricultural tenant. With the enforcement of Chapter VI rayats have been elevated to the category of intermediaries. But the land held by a non-agricultural tenant is still exempt from vesting. A non-agricultural tenant does not come within the meaning of "intermediaries" and hence there is no question of vesting of his interest. A similar question was raised in the case of Siba Prasanna v. Mritunjay (A 1978 Cal 428 : 1979(II) CHN 330 and it was held that in regard to a non-agricultural tenancy there was no question of vesting. Such being the legal position the second contention urged by Mr. Mukherjee must also fail. 15. Finally Mr. Mukherjee argued that the pre-emptor’s right of preemption has become barred. It was contended that the pro-emptor Kshirodabala having purchased from Shyamlal on 13.8.53, she had the option of exercising her right of pre-emption when the petitioner's vendor Bejoy Deb purchased on 20.8.53. It was therefore argued that since she did not choose to exercise her rights then, she would not be entitled to exercise the right against a subsequent transferee from Bejoy Deb. It was therefore argued that since she did not choose to exercise her rights then, she would not be entitled to exercise the right against a subsequent transferee from Bejoy Deb. It is true that the preemptor might have asked for pre emption in 1953 but that does not mean that she not hiving exercised such rights in respect of that sale would be disentitled to claim pre-emption in respect of all subsequent transfers. Each transfer furnishes a fresh came of action and the right to pre-empt cannot be defeated on the ground that an earlier sale was not pre-empted. In such circumstances there can be no question of waiver or estoppel far less of limitation because what is sought to be pre-empted is not the earlier sale but a subsequent sale which gave a fresh right and provided a fresh starting point of limitation. Thus the third and the last point urged by Mr. Mukherjee also has no substance. 16. On our findings as above, we find no grounds to interfere with the impugned order. The revisional application therefore fails and is hereby dismissed. Rule is discharged. We make no order as to costs. Anil K. Sen, J: I agree. Rule discharged.