P L D 1969 Dacca 979 (PLP)

A. S. CHOWDHURY, J.‑This appeal is directed against an order made on 27‑6‑68, by Mr. A. Z. M. H. Alam, Subordinate Judge, 2nd Court Comilla in Miscellaneous Case No. 48 of 1967, and it arises in the following circumstances: Appellant Mst. Lutfun Nahar filed an application under section 96 of the East Bengal State Acquisition and Tenancy Act (hereinafter called the Act) for pre‑emption of the land set out in the Schedule of the petition. It is further stated that the land sought to be pre‑empted originally belonged to Mr. Rajani Kanta Nath, respondent No. 2, who is a lawyer of the Judge's Court, Comilla. He sold the said land to the respondent No. l Syeeda Hashmat Ara Be‑gum by a kabala dated 20‑4‑65, which was registered on 20‑5‑

65. It is claimed by the appellant that she was at Dacca at her daughter's house and that she had no information about the sale by respondent No. 2 to respondent No. 1, and that she came to know about it for the first time on 10‑11‑

66. She instituted the present Miscellaneous case on 26‑11‑66, after depositing the requisite amount. It is asserted by her that she is the owner of the contiguous holding and as such she is entitled to pre‑emption under section 96 of the Act. Respondent No. 1, denies all material allegations and submits that the application which is time barred, was filed out of enmity. It is claimed that it is not maintainable, in as much as, the land in respect of which the pre‑emption is claimed is non agricultural in character. On a review of the evidence led in the case, the trial Court dismissed the miscellaneous case and rejected the prayer for pre‑emption. Mr. D. C. Bhattacharjee appearing for the appellant submits that of the two plots concerned, there may be some justification for holding the plot No. 472 as non‑agricultural land. But he asserts with vehemence that the land in plot No. 473 is agricul tural in character and pre‑emption ought to have been allowed in respect of the said plot No.

473. Mr. Bhattacharjee elaborates his contention by saying that the lands of these two plots were sold at a total price of Rs. 12,000 and that a sum of Rs. 4,500 was paid for plot No. 472 and a sum of Rs. 7,500 was paid for plot No.

473. He, therefore, claims that plot No. 473 being separate in existence 'and character, pre‑emption ought to have been allowed in respect of that plot. ' In support of his contention learned Advocate for the appellant relies on the deed of lease by which the land was originally settled by Maharaja Bir Bjkram Kishore Manikya Bahadur to the respondent No. 2, Mr. Rajani Kanto Nath by Exh. F and also the records‑of‑right Exh. H and H (1) and draws our attention particularly to the word `rayati' occurring under the column meant for describing the class of land. Mr. Bhattacharjee, reasonable as he is submits that he cannot derive much support from the deed of settlement Exh. F, for, the character of the land is not very clear from the said deed, but according to him there is no manner of doubt that the land in plot No. 473 is agricultural in character as will appear from the records‑of‑right marked Exh. H and H (1). He also places his reliance on the deed of sale Exh. 2 by which respondent No. 2 sold the land to respondent No. 1, giving rise to the disputes and petition for pre‑emption. Mr. Bhattacharjee has drawn our attention to the words "homestead" and "agricultural land" occurring in the record‑of‑right relating to the lands set out in the two Schedules. He also invites our attention to Exh. 3, a petition filed by Respondent No. 2 Mr. Rajani Kanto Nath to the Deputy Com missioner of the district for permission to have the deed of sale registered as required by the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964. He a1s o points out the oral evidence to the effect that respondent No. 2 used to grow vegetables in a part of the lands in question. Mr. Safiquer Rahman, appearing for the respondent No. 1, submits that the deed of settlement Exh. F, clearly indicates that the tenancy as originally created consisted of non‑agricultural land and that both the plots come within the description of "homestead" as given in the said Act. He also asserts that the petition is time‑barred. With regard to the Exhs. H and H (1), the contention of Mr. Rahman is that the word `raiyati' occurring therein does not indicates what Mr. Bhattacharjee claims. I know read the definition of "holding" on which great reliance was placed by Mr. Bhattacharjee. Subsection (13) of section 2 of the Act defines "holding" in the following terms: "Holding' means a parcel or parcels of land or an undivided share thereof, held by a raiyat or an under raiyat and forming the subject of a separate tenancy the Mr. Bhattacharjee there fore contends that the word `raiyat' occurring in the Exh. H and H (1) shows that it is an agricultural land, for subsection (2) of section 82 of the Act defines a raiyat as a person who holds lands for the purpose of cultivation subsection (2) of section 82 lays down; `raiyat' means a person who, by virtue of section 44 or otherwise, has acquired a right to hold land directly under the Provincial Government mainly for the purpose of cultivating it by himself or by members of his family or by, or with the aid of, servants or labourers or with the aid of partners or bargadars, and includes also the successors‑in‑interest of persons who have acquired such a right." Since a person becomes a raiyat only when he takes a land mainly for the purpose of cultivating it, Mr. Bhattacharjee claims that the word `raiyat' occurring in the record‑of‑right indicates that the land in question is agricultural in character. Mr. Safiquer Rahman invites us to read subsection (14) of section 2 which defines "Homestead" in the following terms:‑ "Homestead' means a dwelling house with the land under it, together with any court‑yard, garden, tank, place of worship and private burial 'or cremation ground attached and apper taining to such dwelling house, and includes any out‑buildings used for the purpose of enjoying the dwelling house or for purposes connected with agriculture or horticulture and such lands within well‑defined limits, whether vacant or not, as are treated to be appertaining thereto." Mr. Rahman therefore claims that it will appear that even if some part of the land is used for gardening or growing vegetables or "for purposes connected with agriculture" the land does not lose the character of "homestead". The most important document in this case, in our opinion, is the deed of settlement Exh. F by which the tenancy was originally created, we have read this document carefully and we find, it is stated therein, that the lessee shall be able to construct pucca structures, building and also utilise the same for gardening and such other purposes. On a reading of the docu ment as a whole, we have reached the conclusion that the settlement was mainly for the purpose of utilising the lands for residential purpose and, if so‑ desired by the lessee, some land 4 appertaining thereto may be used for gardening. The tenancy therefore, as originally created comes, in our opinion, within the meaning of "homestead" as defined in the Act. The settlement appears to have been made for purposes unconnected with agriculture. Even if some part of it is used for "purpose connected with agriculture" it will not be sufficient to bring the land out of the definition of "homestead" which I have just read. I now read the material part of subsection (4) of section 2 of the non‑Agricultural Tenancy Act, 1949:‑ "'Non‑Agricultural land' means which is used for purposes not connected with agriculture or horticulture and includes any land which is held on lease for purposes not connected with agriculture or horticulture irrespective of whether it is used for any such purposes or not." Having reached the conclusion that the lease, as was originally granted to Mr. Rajani Kanta Nath, was mainly for "purposes not connected with agriculture" even if, there is some evidence of his growing vegetable in some part, it will not be agricultural land by reason of the expression "irrespective of whether it is used for any such purposes or not" occurring in subsection (4) of section 2 of the non‑Agricultural Tenancy Act. The position in law, therefore, is that the character of the land is determined by the purpose for which lease is taken and not by subsequent use of 8 some of its part. That being so, Exh. F, namely, the deed of settlement is a document of great importance for determination of the character of the land. It is also in evidence that the respondent No. 2, Mr. Rajani Kanta Nath used to stay in that house and practice as a lawyer in the District Court. That shows that he was utilising it for the purpose for which the lease was held. He utilised a part of it, as people generally do, for the purpose of growing vegetables and gardening. In view of the conclusion reached by us, on a reading of the document Exh. F, as a whole, the other documents namely, the Exhs. H and H(l) and the application for pre‑emption and the deed of sale lose much of their importance. I would, however briefly refer to them. The word "raiyat" occurring in the two Exhs. it is true, lends support to the contention of Mr. Bhattachgrjee that the land is agricultural in character. But, then, its incorrectness is admitted, for, Mr. Bhattacharjee himself concedes that in so far as Plot No. 472 is concerned, its land is non‑agricultural in character. We, therefore, cannot attach importance to the term "raiyat" which applies also to the plot No.

473. Exh. H shows that under the heading `class of lands' the word bari' has been recorded in respect of plot No. 472, but in the column meant for class of tenancy, the word "raiyat" occurs. The word "raiyat" therefore appears to have been used without application mind. It is indeed incorrect. It will appear from consideration of the definition that homestead cannot be raiyati. Exh. H relates to plot No.

473. Under the heading "class of land" occurs the word 'bhiti'. Bhiti means elevated or high land and is generally treated as non‑agricultural land. Therefore, on closer examination it appears that these documents do not support Mr. Bhattacharjee's contention. With regard to the application for pre‑emption in which it has been shown that a part of the land is agricultural and the other part is non‑agricultural in character. Mr. Rahman's contention is that his client had nothing to do with this appli cation and that it was for respondent No. 2 Mr. Rajani Kanta Nath to obtain permission and he found it convenient to apply to the Deputy Commissioner of the district where he is a member of the legal profession. He submits that he had to show the land under two different classifications to bring it within the pecuniary jurisdiction of the Deputy Commissioner as conferred on him under the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964 and the rules framed thereunder. There is nothing in these documents about the actual user of the land. On an examination of the oral evidence also, we do not find that any part of the land was used for a purpose which would not come within the ambit of the definition of "homestead', occurring in subsection (14) of section 2 as already discussed earlier. We have, therefore, reached the conclusion that the subject‑matter of this application for pre‑emption consists of nonagricultural lands. In the case of Abdul Khaleque v. Jadav Chandra (20 D L R 562), a Division Bench of this Court quoted a passage from the judgment of the Supreme Court in Civil Appeal No. 47‑D of 1963, decided on 22‑1‑1965. In that case their Lordships of the Supreme Court observed: "Section 96 in clear terms lays down that this right of pre emption will be available only in respect of 'holding' as given in section 2(13) of the Act, it cannot be said that the right of pre‑emption can be exercised in respect of non‑agricultural land. Here it may be mentioned that there is specified pro vision for pre‑emption of non‑agricultural land in the East Bengal non‑Agricultural Tenancy Act (XXIII of 1949). Under that Act a contiguous owner cannot claim a right of pre emption. After review of relevant provisions of the East Bengal State Acquisition and Tenancy Act we think that section 96 is confined to agricultural land and therefore, a right of pre‑emption under this section cannot be claimed in respect of a homestead land within a Municipality." This application, we have already found, is in respect of non agricultural land. This observation of their Lordships applies to the facts of this case, and consequently the aid of section 96 cannot be invoked for pre‑empting the land in question. The application, therefore, is not maintainable on this ground alone. Mr. Safiquer Rahman's argument that the application is barred by limitation also appears to us to be of substance. In order to get rid of the question of limitation, it is argued, that a chain of events as disclosed by the witnesses for the appellant shows that it was submitted within four months from the date of her knowledge about the sale. The deed was registered on 20‑5‑65, and the application for pre‑emption was made on 26‑11‑

66. In order to explain away the delay three witnesses were examined in support of the petitioner's contention that she was away from Comilla and unaware of the sale. P. W. 4 Mofijur Rehman says that having been asked by the clerk of Serajul Islam who is an Advocate and son‑in‑law of the appellant, be filed a petition for certified copy of the deed of sale on 8‑11‑66, and got the same after two days on 10‑11‑

66. He also says that while applying for the said copy he filed a copy of kabala. He says, "I got that copy of kabala from Yeasin, a clerk of an Advocate. I cannot say how Yeasin got that copy." In cross‑examination this witness says: "Yeasin Meah is alive and he is a clerk of Mr. Badiul Alam, Advocate for the petitioner." Mr. Badiul Alam is an Advocate for the petitioner and Yeasin Meah who was examined in this case could have himself obtained the copy. He, however sent Mofijur Rahman for another copy. Thus it appears the copy obtained previously was not utilised. The certified copy with a recent date of obtaining the same was filed in this miscellaneous case in order to avoid the difficulty regarding law of limitation. Siddiqur Rahman who is a clerk of appellant's son‑in‑law Serajul Islam says: "Petitioner asked me to take copy of the kabala and I obtained the same through P. W. Mofiz Meah." In cross‑examination he admits: "About 2 years before there was a sitting over the boundary dispute regarding the disputed land and boundary dispute was between the petitioner and the O. P. No.

1. I have to take a copy of the kabala about 3 or 4 years before from today. That was done three years before." He was deposing on 24‑4‑68, and the copy was therefore was taken in 1965. It supports Mr. Safiquer Rahman's assertion that the first copy was also obtained by the appellant. Yeasin Meah who has been mentioned by both Mofizur Rahman and Siddiquer Rahman has been examined as P. W.

8. He says, "I took a copy of the deed of transfer of the disputed land on 23‑6‑65, for my pleader Mr. Badiul Alam as he asked me to take the copy. I did not know the petitioner of this case at that time." In cross -examination he admits that Badiul Alam is an Advocate for the petitioner in this miscellaneous case. Mr. Safiquer Rahman argues that on an examination of the evidence of the these witnesses it appears that she knew about the sale in 1965 when the first copy was obtained. Mr. Bhattacharjee submits that even if these witnesses are disbelieved it would not fix the appellant with knowledge of the sale earlier than the date of obtaining the copy. To do so, according to the learned Advocate for the appel lant would be what is called surmise and conjecture. But, in this case, it is to be appreciated that the application for pre‑emption was submitted on 26‑11‑

66. The sale took place on 20‑5‑

65. It is apparently more than one and half year after the date of sale. The appellant and the respondent have been living in the adjacent plots of land, the onus lies heavily in such a case on the appellant to establish that he knew about the sale only within four months from the date of submitting the application. This he failed to` do. Therefore, the application is, in our opinion, barred by the law of limitation as well. In the result the appeal is dismissed with costs. The impugned order is affirmed. Let the records be sent down at once. NURUL ISLAM, J.‑I agree. Appeal dismissed.