Abu Md (PLP)

10. Mr. Pal, the learned Advocate for Opposite‑Party No. 1, contends that though the transaction covered by the document, Exh, 4, was in the shape of a nadabipatra, the parties really intended a transfer of the share of Mahabir in the tenancy with the structures thereon to Opposite‑Parties Nos. 1 to 6 and, in support of his contention, he referred to the fact that the document was registered in Book No. 1 of the Sub‑Registrar's office 'under section 61 of the Registration Act and that the valuation of the property has been stated to be Rs. 2,000 and ad valorem stamp‑fee was paid on it. In support of his contention, the learned Advocate referred to the decision of the Calcutta High Court in the case of Harendra Nath Mukerji and others v. Kumar Nath Roy and others (12 C W N 478 (480)). But simply the fact that the document was registered in Book No. 1 and ad valorem stamp‑fee was paid on the document by itself cannot turn a deed of disclaimer into a deed of transfer. In the document there is nothing from which it can be said that the parties intended to transfer any interest in the disputed land. On the contrary, it refers to the transfer, by an earlier document, Exh. A, dated 4‑4‑44, in the benami of Harendra Chakravarty. The case relied on by Mr. Pal has got no bearing on the present case. In that case there was a lease taken by the karta of a Hindu family for himself as well as for the benefit of the members of the family. Subsequently, they relinquished their interest in favour of the karta by executing a deed of release stating therein that the karta would pay their debt mentioned in the document and the docu ment was registered in Book No. I of the Sub‑Registrar's office and only Rs. 5, and not ad valorem fee, was paid as stamp fee. It also appears from the judgment of that case that the karta of the family dealt with the property as his own and the landlord recognised him as the sole tenant on the basis of the deed of release executed by the other members of the family. In the lease it was stated that the lessee would pay Rs. 1,800 as rent plus Rs. 3,000 and odd on account of the rent pay able by the lessor to his superior landlord, in default of which the lessor will be entitled to realise the amount from the lessees. As the lessees did not pay the rent of the superior landlord, the lessor filed a suit for damages claiming Rs. 5,000 from the lessees including the other members of the family. The defence of the other members of the family was that they have transferred their interest to the karta of the family and they are not liable to pay the damages for non‑payment of rent to the superior landlord. A question arose whether the deed of release did really transfer the interest of the other members of the joint Hindu family to the karta of the family. It was held that the deed of release was really intended to transfer their alleged interest to the karta of the family and they are not liable to pay damages. In that case there was no previous document of transfer, as in the present case where, in the nadabipatra, the deed of transfer was specifically mentioned and on the basis of that transfer Mahabir simply admits his wrongful possession and he gives up that possession in favour of the petitioners by this nadabipatra.

11. Another point raised by Mr. Pal is that even if Mahabir did really transfer his interest to the petitioners in the benami of Harendra Chakraborty, when Mahabir claimed interest in the disputed land in Miscellaneous Case No. 145 of 1947 which succeeded up to the High Court, it cannot be said that there was a transfer in favour of the petitioners in the benami of Harendra Chakravarty.

12. The Miscellaneous Case was started by Mahabir. In that case, the status of Mahabir to maintain it after transfer of his interest to Harendra Chakravarty was raised but, by that time, Durgaprasad by a petition‑joined him in the Miscellaneous Case. The lower Appellate Court in that case held that the Miscellaneous Case was maintainable at the instance of Durgaprasad alone and also held that Mahabir can maintain it and the benefit would enure to his transferee Harendra Chakraborty if he had transferred his interest. The fact of transfer and its benami nature was not decided in that case. According to the decision'in that Miscellaneous Case also, benefit of occupancy status accrued to the transferee Harendra who is claimed to be the benamdar of the petitioners. It is not disputed in this case that he is the benamdar of the petitioners.

13. Even if this contention of Mr. Pal is accepted as correct, it does not help Opposite‑Party No. 1 Durgaprasad. If the petitioners are estopped from pleading transfer of the right, title and interest of Mahabir to Harendra Chakraborty and, if the occupancy status of Durgaprasad and Mahabir in the disputed land stands on account of the decision in the Miscel laneous Case, then there cannot arise any question of pre‑emption, because the nadabipatra by itself did not and could not transfer any interest in the disputed property. In any view of the case, the application for pre‑emption cannot stand.

14. As to the third point, namely, whether the tight of pre‑emption extends up to the structures on the land, it is not necessary to decide in view of my finding that the transfer was effected not by the nadabipatra of the year 1956 but by the kabala Exh. A, of 1944 when the right of pre‑emption under section 24 of the East Bengal Non‑Agricultural Tenancy Act of 1949 was not in existence.

15. However, when the point has been raised, I am to give my decision. The learned District Judge held that "land", as used in section 24, includes structures on the land. It is contended that the view taken by the learned District Judge is absolutely wrong. 16. "Land" has neither been defined in the Act nor has it been defined in the Bengal Tenancy Act or in the Transfer of Property Act though section 2 (8) provides that all words and expressions used but not defined in this Act and used in the Bengal Tenancy Act or the Transfer of Property Act have the same meaning as in those Acts. In the General Clauses Act also, " land " has not been defined though " immovable property " has been defined to include land, benefit to arise out of land and things attached to the earth.

17. In subsection (3) of section 24 of the Act, it has been provided that the transferee of non‑agricultural land or a portion or share, of it is entitled to compensation for any building or structures erected by him between the date of transfer and the date of the receipt of notice of application for pre‑emption. He has not been given the right of removal of the structure or building erected by him, as it impairs the value of such building or structure.

18. Subsection (2) of section 24, while providing for deposit of the consideration money or value of the property transferred speaks not of land but of " property " which has got a wider connotation than land. So it seems that " land " in section 24 of the Act is intended to ‑include structures on the land also if it is also transferred along with land as part and parcel of the land and not separately from the land and the con sideration for both is one and the same and in that case the right of pre‑emption will extend upto those structures on the land transferred, as in the present case by the kabala, Exh. A, of 1944 which was similarly confirmed by the nadabipatra of 1956.

19. As I have already found that no transfer was effected by the nadabipatra, no right of pre‑emption accrued to the co- sharer on account of that nadabipatra.

20. The result, therefore, is that these two Rules are made absolute with costs and judgments and orders of the Courts below are set aside and the application of Opposite‑Party No. 1 for pre‑emption is dismissed with costs. As this judgment will govern both the Rules, there will be one set of costs in this Court. K. B. A. Rules made absolute.