Anil Kumar Lahiri vs Jagat Bandhu Chatterjee

Janah, J.—This Rule is directed against the order passed by the Munsif, First Court, Alipore, in Miscellaneous Appeal No. 1 of 1968. That appeal arose out of a proceeding started by the opposite party against the Petitioner for pre-emption u/s 8 of the West Bengal Land Reforms Act. The Revenue Officer who heard the application for pre-emption allowed the same. On appeal, the order was affirmed by the learned Munsif. The facts in short are:

The opposite party purchased some land appertaining to khatian No. 398 of mousa Kasba from one Promila Bala Kundu on July 23, 1950. Thereafter on May 21, 1966, the Petitioner purchased a little over seven cottahs of land appertaining to the said khatian from the said Promila Bala Kundu. This purchase by the Petitioner was made the subject matter of the proceeding for pre-emption which was instituted by the opposite party against the Petitioner.

Mr. Moitra, learned Advocate appearing for Mr. Roy Chowdhury, learned Advocate for the Petitioner, has contended in the first place that after the West Bengal Estates Acquisition Act came into force and after the vesting of all lands belonging to the intermediaries and raiyats took place under the said Act, there could be no co-sharers in the holding which existed before the vesting. His contention is that after the vesting took place under the said Act, the intermediaries and raiyats became direct tenants under the State. This argument was advanced by Mr. Moitra on the basis of the decision of a Full Bench of this Court in the case Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, .

Apart from the other argument which will be indicated hereinafter, Mr. Chakravorty, learned Advocate for the opposite party has contended that that decision case have no application to the facts of the present case. He contended that the question referred to the Full Bench in that case was whether the right of pre-emption u/s 26(f) of the Bengal Tenancy Act was still available after the vesting of the raiyati interest took place under that Act. Mr. Chakravorty contended that the point for consideration in that case was quite different from the present case. Reading the judgment in its entirety would, however, indicate that the reasons on which the Full Bench came to the conclusion in that case apply with full force in the present case as well. In that case the Full Bench held that after the enforcement of chap. VI which relates to the interests of raiyats and under raiyats and the vesting of such interest, the co-sharer raiyats of a holding ceased to be co-sharers and different raiyats of the holding became a direct tenants under the State in respect of the land of that holding. In arriving at this decision the Full Bench took into consideration the various provisions of the said Act, rules framed thereunder. Mr. Chakravorty, however, sought to draw a distinction between the persons having land in excess of the ceiling prescribed under the Act and those having below the ceiling. He contended that those having in excess of the ceiling were entitled to retain up to the ceiling and in such a case it was necessary for the State to record such retained lands in a separate khatian. According to him in such a case therefore there would be no co-sharer because the lands would be recorded in separate khatian. But in the case of persons having lands below the ceiling this would not be so. In support of this contention Mr. Chakraborty has strongly relied upon R.S. khatian which was produced in this case showing that the Petitioner''s vendor Promila Bala Kundu and the opposite party Jagat Bandhu Chatterjee along with other persons had different shares in the said khatian. Mr. Chakravorty therefore, contended that the R.S. khatian shows that the opposite party was a co-sharer in the holding a portion of which was transferred to the Petitioner by the other co-sharer Promila Bala Kundu. According to Mr. Chakravorty the opposite party was, therefore entitled, to pre-empt the purchase made by Petitioner. This aspect of the case was also considered at length by the Full Bench. Before the Full Bench a contention was raised that in view of the statutory presumption of correctness of the entries made in the finally published record-of-rights the different persons whose interests have been recorded in the record of rights must be taken to be co-sharers in the holding. This contention was repelled by their Lordship and reference was made to Section 47 of the Act and Rule 31A of the rules framed thereunder. The Full Bench decision is binding upon me and although the reference was actually made on a different point, from the discussion made in the judgment and the reasons for which the findings were arrived at, it becomes immaterial for our present purpose that the reference was not on a point involving Section 8 of the West Bengal Land Reforms Act. Section 8 of the West Bengal Land Reforms Act provides that if a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in a holding, a co-sharer raiyat of the holding may apply for pre-emption within a certain time. Therefore, before an application for pre-emption could be made under that section, there must be a transfer by a co-sharer in the holding in favour of a person who is not a co-sharer. The Full Bench has held that after the vesting under the West Bengal Estates Acquisition Act the holding as it existed previously ceased and the co-sharers became direct tenants under the State.

There is also another reason why the application for preemption u/s 8 of the West Bengal Land Reforms Act was not maintainable. Section 8 of the Act speaks of a holding of a raiyat. ''Raiyat'' has been defined in the Act to mean "a person who holds land for purpose of agriculture" and ''holding'' has been defined to mean "the land or lands held by a raiyat and treated as a unit for assessment of revenue". Neither the Petitioner''s vendor nor the opposite party is holding the land for the purpose of agriculture. Mr. Chakravorty referred to the record of rights and submitted that since there was an entry in the record of rights to the effect that the owners of the land contained in the khatian to which the disputed land appertains were holding the land in the right of occupancy raiyat under Rule 4 of the rules, it must be taken that they were raiyats. I am unable to accept this contention of Mr. Chakravorty. The record of rights was prepared under the West Bengal Estates Acquisition Act. The purpose of the West Bengal Estates Acquisition Act is quite different from the purpose for which the right of pre-emption has been given u/s 8 of the West Bengal Land Reforms Act. In my view unless a person can be called to be a raiyat within the meaning of Section 2(10) and Section 8 of the West Bengal Land Reforms Act, he can have no right of pre-emption u/s 8 of that Act. The next ground on which Mr. Chakravorty has contested this Rule is that the Petitioner did not canvass any point other than ground No. 11 before the lower appellate Tribunal Ground No. 11 relates to the amount which is required to be deposited at the time of making the application for pre-emption. Mr. Chakravorty contended that since the learned Munsif has recorded in his order that except ground No. 11 no other ground was urged before him, this Court should not allow the Petitioner to canvass any other point. Although the learned Munsif has recorded that no other grounds of appeal were pressed, there is indication in his judgment itself that other grounds were also pressed, as would appear from the following sentence contained in his judgment:

In the premises, I am unable to accept the contention of the learned lawyer for the Appellant that the learned Revenue Officer did not apply his mind to the other grounds taken.

It is curious to find that the learned Munsif went out of his way to make some observation in his judgment which was not at all called for. He has stated:

It would have been better if the learned Revenue Officer would have added another line to his order stating that Respondent (sic)/opposite party did not press other grounds.

But even assuming that other grounds were not pressed before the learned Munsif, the Petitioner in this Rule, in my view, may be and should be allowed to agitate the questions of law which have been raised by him and which goes at the very root of the matter.

The Full Bench decision referred to above is of the year 1972. The appeal before the lower appellate Court was decided in August 1969. At that time the position in law had not been set at rest by any authoritative decision of this Court. In considering this aspect of the matter, no new facts are necessary. The matter can be decided upon the materials on record and it relates to jurisdiction to grant pre-emption u/s 8. Therefore, I allowed the learned Advocate for the Petitioner to urge the points which have been urged by him in support of this Rule. Mr. Chakravorty, learned Advocate for the opposite party referred to a number of decisions on the point that if a party does not urge a point before the lower Tribunal or Court, he should not be allowed to urge those points in appeal. These cases have, however, not gone to the extent in saying that even a pure question of law cannot be urged before the superior Court or tribunal, even if no new facts are required to be gone into. Mr. Chakravorty has also referred to certain decisions on the scope of Article 227 of the Constitution and Section 115 of the Code of Civil Procedure. It is not necessary for our present purpose to enumerate these decisions. It is sufficient to say that if a question relates to the jurisdiction of the tribunal to pass the order complained of, a litigant should be allowed to raise such a question under Article 227 of the Constitution. In the present case Section 8 of the West Bengal Land Reforms Act had no application and therefore, the Revenue Officer had no jurisdiction to pass the order of pre-emption.

For the reasons mentioned above, this Rule is made absolute. The orders'' moved against are set aside and the application for pre-emption filed by the opposite party before the Revenue Officer is dismissed. In the circumstances of the case, I make no order as to costs.