Judgment: 1. This Rule is directed against the order dated July 17, 1978 passed by the learned Additional District Judge. 5th Court at Midnapore in Misc Appeal No 43 of 1978 affirming the order No. 27 dated January 31, 1978 passed by the learned Munsif, Second Court. Midnapore in J. Misc. Case No. 60 of 1975. The petitioner made an application for pre-emption of 03 acre of land being the eastern portion of plots No 551 and 552 appertaining to Revision" Settlement Khattan No. 29 within Mouza Dhekia, P.S. Khragpur in the district of Midnapore file plaintiff based his claim for pre-emption on the ground that the plaintiff was a co-share in respect of the holding in question and the plaint if also held land contiguous to the land in respect of which the said right of pre-emption was made. The trial Court on consideration of the materials on record and evidences adduced by the parties came to the finding that the petitioner was not a co-sharer because he had purchased some land in the holding in question prior to the vesting of estates under the West Bengal Estates Acquisition Act. 1953 and the petitioner was also not entitled to claim for pre emption on the ground of vicinage because the land in question was not an agricultural and but a not an agricultural land and as such the same was not 'land' within the meaning of the Land Reforms Act. In that view of the matter the trial court held that an application for pre-emption under S. 8 of the West Bengal Land Reforms Act was not maintainable and the said application "for pre-emption was dismissed by the trial court. The pre-emptor petitioner thereafter preferred an appeal being the Said Misc. Appeal No. 43 of 1978 pending in the 5th Court of the learned Additional District Judge. Midnapore and as aforesaid the learned Additional District Judge dismissed the said appeal and affirmed the order of the learned Munsif rejecting the application for preemption. The pre-emptor petitioner thereafter preferred an appeal being the Said Misc. Appeal No. 43 of 1978 pending in the 5th Court of the learned Additional District Judge. Midnapore and as aforesaid the learned Additional District Judge dismissed the said appeal and affirmed the order of the learned Munsif rejecting the application for preemption. It, however, appears that the Court of Appeal below held that the land in question was an agricultural land but the Court of Appeal below held that although it was an agricultural land the petitioner was not entitled to pre-emption on the ground of vicinage and the right of pre emption on the ground of vicinage under S. 8 of the Land Reforms Act can be made of a person holds not any petition of the and sought to be preempted but a different land contiguous to the land in question. 2. Mr. Satinath Mukherjee the learned Counsel appearing on behalf of the petitioner submitted that the court of appeal below having come to the finding that the land in question was an agricultural land it should have allowed the application for pre-emption because admittedly the pre-emptor petitioner was owner of a portion of the plots in question, Mr. Mukherjee submitted in his usual fairness that homestead ipso facto will not determine the question as to whether the land is agricultural or non agricultural Mr. Mukherjee contended that if it person holds any land for agricultural purpose and also holds a homesteaded then such homestead of a person holding any land for agricultural purpose is an agricultural land Mr. Mukherjee submitted that it has not been found by any of the courts below that the petitioner does not hold any land for agricultural purpose. It has only been held by the trial court that the lands in question were not held for agricultural purpose but such land consisted of structures meant for residential purpose. Mr. Mukherjee submitted that a house for residential purpose is not an agricultural land ordinarily but if a raiyat holds other lands for agricultural purpose and also holds a plot comprising his homestead then the said homestead becomes an agricultural land although the awaking house and the lands appertaining thereto as such are not actually utilised for cultivation. Mr. Mr. Mukherjee submitted that a house for residential purpose is not an agricultural land ordinarily but if a raiyat holds other lands for agricultural purpose and also holds a plot comprising his homestead then the said homestead becomes an agricultural land although the awaking house and the lands appertaining thereto as such are not actually utilised for cultivation. Mr. Mukherjee in this connection referred to a Bench decision of this Court made in the case of Khantamayee v. Rukmini reported in 48 CWN at page 759. It was held in the said decision that the land actually used for raising by cultivation food-grains, vegetables and fodder as also other marketable Commodities such as jute, hemp, cotton. lac, etc; lands lying unused but capable of being used for the above purposes; lands used for purposes accessory to cultivation, e.g. the thrashing floor and irrigation tanks land containing cattle sheds and sheds for ploughs, etc; lands used for orchards or for farming purposes; i.e., raising or feeding of cattle or other live-stock pathways. khals. nullas serving the agricultural lands and sites of dwelling houses of cultivators are all agricultural lands for the purposes of Item No. 21 of List II of the Government of India Act, 1925 but dwelling houses other than those used for the residence of cultivators or farmer lands which are being actually used for raising mineral; lands covered by forest; Debasthanas and possibly lands used for planting trees for the purposes of fuel are non- agricultural lands. It was also held that “Dwelling house” would include adjustment building or outhouse cartilage garden courtyard, orchard Within the compound of the house and all that is necessary for the convenient use there of. Relying on the aforesaid decision. Mr. Mukherjee contended that there is no material which establishes that the preemptor petitioner does not hold any land for agricultural purpose. On the contrary the interest relating to the land in question was recorded as that of raiyati sthithibon Accordingly it must be held that it was an agricultural land. Mr. Mukherjee also contended that actual user of land on the date of vesting must determine the nature of the land under the West Bengal Estates Acquisition Act. On the contrary the interest relating to the land in question was recorded as that of raiyati sthithibon Accordingly it must be held that it was an agricultural land. Mr. Mukherjee also contended that actual user of land on the date of vesting must determine the nature of the land under the West Bengal Estates Acquisition Act. It is immaterial as to for what purpose the land was settled earlier and the legal principal that the purpose of original settlement of the land will govern the nature of the tenancy has undergone a change because of the provisions of west Bengal Estates Acquisition Act 1953. It is the actual user of the land on the date of vesting which will determine the nature of the land, namely. Whether the land is agricultural or non agricultural under the West Bengal Estates Acquisition Act. For this contention Mr. Mukherjee referred to the decision of this Court made in the case of Misri Shaw v. Belur N. kunjamayee Godar reported in 1978(1) CLJ at page 532. Mr. Mukherjee also referred to another Bench decision of this Court made in the case of Ram Kumar Kajaria v. Messrs. Chandra Engineering (India) Ltd. reported in 77 CWN at page 426. It was held in the said decision that S. 2(10) of the West Bengal Land Reforms Act defines the term Raiyat, Raiyat means a person who holds land for purposes of agriculture. It is clear from the definition of the term Raiyat that the only test whether a person is a raiyat or not is the purpose for which the land was settled. If the purpose for which the settlement was made is agriculture purpose the person in whose favour such settlement was made is raiyat. On the other hand if the purpose is other than agricultural purpose for which the land was settled in that case the settlement cannot be said to be a raiyat settlement and the person in whose favour the settlement was made cannot be regarded as a raiyat within the meaning of S. 2(10) of the Act. even though the land is actually and for agricultural purpose. Cultivation of the land or actual user of the same for agricultural purpose by a co-sharer raiyat is not a condition precedent for enforcing the right of pre-emption under S. 8(1) of the Act. Relying on the aforesaid decision Mr. even though the land is actually and for agricultural purpose. Cultivation of the land or actual user of the same for agricultural purpose by a co-sharer raiyat is not a condition precedent for enforcing the right of pre-emption under S. 8(1) of the Act. Relying on the aforesaid decision Mr. Mukherjee submitted that the right of pre-emption will not depend upon the actual user of the land but the purpose for which the land was settled. Mr. Mukherjee submitted that it will appear from the revisional record of rights that the Interest recorded in respect of the said land was that of a raiyat sthlthiban which indicates the purpose of settlement of the land in question. Accordingly even assuming that the land was a bastu land comprising structure thereon it Cannot be held that it was not a raiyat land and as such it is not an agricultural land within the meaning of the Land Reforms Act. 3. Mr. Monomohon Mukherjee the learned Counsel appearing for the opposite party however submitted that the pre-emptor himself deposed in the proceeding and had admitted that the plots appertaining to the holding in question do not contain any agricultural laud and in view of such clear admission made by the pre-emptor it must be held that the lands appertaining to the holding to question are non agricultural lands and the trial court was quite justified in holding that the lands in question are non-agricultural, lands and as such S. 8 of the Land Reform Act wag not attracted in the facts of the case Mr. Mukherjee submitted that the Court of appeal below did not consider the iconic evidence on record but held that the land was agricultural land simply because the interest was recorded in the Revisional Record of right as that of a Raiyati Sthlthiben. In this connection Mr. Mukherjee referred to a decision of this Court made in this case of Evachhin Ali Nuskar & Anr. V. Gopal Gazi reported in 83 CWN at page 87 ( 1979(1) CHN 139 ). In the said case the right of the preemption in respect of a land comprising the bastu with but standing there on was taken into consideration by this Court. The interest of this tenant in respect of the land was recorded as that of Raiyati Sthlthlbon as in the instant case. But S. K. Datta. In the said case the right of the preemption in respect of a land comprising the bastu with but standing there on was taken into consideration by this Court. The interest of this tenant in respect of the land was recorded as that of Raiyati Sthlthlbon as in the instant case. But S. K. Datta. J. held that under the West Bengal Land Reforms Act, raiyat has been difined as a person who holds for the purpose of agriculture When a raiyat who holds land for the purpose of agriculture has also homestead in such holding in such a case, a homestead will be agricultural and. But in a Case where the holding is recorded as bastu and the non-agriculture user is evident appearing from the Revisional Record of Right wherein it has been stated that there are two huts standing thereon the land cannot be treated as agricultural land to which the provision of the land Reforms Act will be a applicable inasmuch is the Land Reforms Act applies only to agricultural land.. It was also held by the lordship that under S. 8 of the Land Reforms Act if a portion or share of holding of a raiyat is transferred to any person other than co-sharer in the holding it is liable to be pre-empted under certain conditions by a raiyat possessing and adjoining such holding the right of pre emption is thus confined to portion or share of holding of the raiyat and not to any other kind of holding, Relying on the aforesaid decision Mr. Monomohan Mukherjee submitted that in the instant use it will appear from the Revisional Record of Rights that the land Bastu land and there are residential stracture. On the said land and non-agricultural user is manifest from the nature of the land recorded in the Revisional Record of Right Mr. Mukherjee submitted that under certain circumstances homestead may become agricultural lands if within the holding in question there an lands used for agricultural purpose or used in connection with agriculture but in the instant case the pre emptor himself has stated in his evidence to the effect that lands appertaining to the holding in question are not and for agricultural purpose. Mr. Mr. Mukherjee submitted that a Bastu will not ipso facto become a homestead within the meaning of the Land Reforms Act and as such an agricultural and simply because the person holding a share in the bastu also holds land in Borne other holding for agricultural purpose. Mr. Mukherjee also submitted that is the user on the case of vesting which will determine the nature of land for the purpose of West Bengal Estates Acquisition Act as was held by this Court in the aforesaid Case of Mishri Shaw Mr. Mukherjee submitted that in the facts and circumstance of the case when admittedly no and appertaining to the holding in question was used for agricultural purpose the land in question cannot be held to be an agricultural land and as such the application for pre-emption under S. 8 of the Land Reforms Act must fail and no interference is called in this Rule. 4. Mr. Saktinath Mukherjee the learned Counsel for the petitioner in reply to the said contention, however, submitted that for becoming a raiyat it is not necessary to become owner of a land but a person may become raiyat if he hold land for agricultural purpose and he submitted that if a raiyat holds some lands for agricultural purpose and he has also a homestead the said homestead become agricultural land within the meaning of S. 2(1) of the Land Reforms Act. He submitted that it is not necessary that the lands appertaining to the holding in question should be held for agricultural purposes 5. After considering the submission of the respective Counsels appearing for the parties it appears to me that a homestead Ipso facto is not an agricultural land It is only under special circumstances, a homestead may become an agricultural land provided the lands comprising the holding where the homestead appertains are also used for agricultural purpose. I am unable to accept the contention made by Mr. Saktinath Mukherjee that even if a raiyat holds other lands for agricultural purpose in a different holding a homestead appertaining to another bolding not used for agricultural purpose will also become an agricultural land within the meaning of S. 2(1) of the Land Reforms Act. Mr. I am unable to accept the contention made by Mr. Saktinath Mukherjee that even if a raiyat holds other lands for agricultural purpose in a different holding a homestead appertaining to another bolding not used for agricultural purpose will also become an agricultural land within the meaning of S. 2(1) of the Land Reforms Act. Mr. Monomohan Mukherjee the learned Counsel appearing for the opposite party is justified in contending when the pre-emptor petitioner has clearly admitted that no portion of the land comprising the holding wherein 'bastu' appertains is used for agricultural purpose and as such the homestead or bastu in question cannot be held to be an agricultural land simply because the pre-•emptor petitioner holding the bastu also holds some other land appertaining to a different holding for agricultural purpose. In my view in the facts of the case, the principle in Eyachhin Ali Naskar's case fully applies and I respectfully agree with the view made in the laid case Accordingly, this Rule fails and is dismissed but I make no order as to costs. Rule discharged.