P L D 1961 Dacca 349 (PLP)

This rule is directed against an order of pre‑eruption passed in favour of the applicant under section 26‑F of the Bengal Tenancy Act. The opposite‑party No. 1 Abdul Taher Bhuiyan made the application for pre‑emption on the ground that he was a co‑sharer tenant with respect to a raiyati holding bearing an annual jama of Rs. 11‑12‑

0. He purchased a portion of the holding as early as 30th of March 1933 on the basis of a kabala Exh. 1 from some of the successors‑in‑interest of the original holder of the tenancy. The land purchased by him was more or less 12 Kattas in area. Since then he erected buildings for residential purposes. On 15‑7‑57 the kabala Exh. 1‑A was executed in favour of the petitioner No.1 Alhaj Moulana Hafez Athar Saheb, President Jamai Imdadai Madrassa by one Fatema Jahura Khatoon who in her turn purchased the land covered by kabala Ex. XI‑A on 17‑ 1‑50 from some of the successors‑in‑interest of the original holder of the tenancy. The land covered by this kabala is 6 kattas in area more or less. 1t is this land which was claimed by opposite‑party No. 1 Abdul Tatter Bhuiyan by way of pre‑emption as allowed under section 26‑ F of the Bengal Tenancy Act. Petitioner No. 1 and petitioners Nos.2 to 11 as also proforma opposite‑party No. 2 were made opposite‑parties in the proceeding under section 26‑F of the Bengal Tenancy Act inasmuch as it was the common case that the piece of land covered by Exh. 1‑A was purchased on behalf of and in the interest of Jamai lmdadia Madrassa. Some of the petitioners who were opposite‑parties Nos. 1, 6, 10 and 11 in the original proceeding resisted the appli cation for pre‑emption on several grounds. The main contention was that the piece of land sought to be pre‑empted was a non agricultural land and as such it could not be a fit subject for pre‑emption under the provisions of the Bengal Tenancy Act. It was also contended that the opposite‑party Abdul Taher Bhuiyan who made the application under section 26‑F of the Bengal Tenancy Act having himself been a holder of a non agricultural land was not competent to maintain an application under section 26‑F of the Bengal Tenancy Act. It was further contended on behalf of the resisting opposite‑parties that huge amounts having been invested by way of improvement upon the land in question, the pre‑emptor was bound in law and equity to pay for compensation for such costs of improvement. It may be noted in this connection that the application for pre‑emption was filed on 4‑12‑58 and there being no evidence of service of notice in terms of section 26‑C of the Bengal Tenancy Act it was found that the application was not barred by limitation.

2. The trial Court as also the lower appellate Court found that the holding in question was an agricultural holding and as such Abdul Taher Bhuiyan was competent to maintain an appli cation under section 26‑F of the Bengal Tenancy Act. The trial Court, however, held that on considerations of equity the purchaser opposite‑party, that is, the present petitioners were entitled to get costs of improvement so far spent by them and invested on the land. The lower Appellate Court on the other hand found that in the circumstances of the case no consideration of equity could arise and in that view of the matter the contention that the resisting opposite‑parties were entitled to costs of improvement in law and equity, was negatived. Against the decision of the learned Munsif each party preferred an appeal and both the appeals were disposed of by the learned Subordinate Judge in the manner indicated above with the result that the application for pre‑emption as made by opposite‑party No. 1 Abdul Taher Bhuiyan succeeded in all respects.

3. Mr. B. K. De appears in support of the rule and contends that the Courts below acted illegally and with material irregularity in the exercise of their jurisdiction in not taking notice of the fact that the piece of plot in question has undergone many changes since the publication of the settlement record of rights in. or about the year 1917. His contention in substance is that as a result of changes with the passage of time tae character of the land has also been changed. As such it was a tit subject for consideration as to whether his plot covered by Exh. 1‑A could be said to be a non‑agricultural land within the meaning of Non -Agricultural Tenancy Act, 1949. He has also contended that the pre‑emptor opposite‑party Abdul Taher Bhuiyan himself being a non‑cultivator and having purchased his own plot and having used the same for residential purposes sure and simple, cannot take advantage of the provisions of the Bengal Tenancy Act on the theory that he is a co‑sharer tenant with respect to the original raiyati holding. On the question of improvement .he has contended that the purchaser was entitled in law to use the plot in question in any manner subject to the limitations as provided in law and as such if the purchaser has spent for improvement of the plot in question equity should favour the purchaser in the matter of awarding compensation for costs of improvement.

4. Mr. D. C. Bhattacharjee opposing the rule has on the other hand contended that the original purpose of the tenancy has to be kept in view and even if it appeared that by reason of user the particular plot in question could be regarded as a non‑agri cultural land within the meaning of Non‑Agricultural Tenancy Act, 1949 yet unless it was proved that the piece of plot' in question was the subject of a non‑agricultural tenancy, provisions of the Non‑Agricultural Tenancy Act could not be invoked and in such case the pre‑emptor is entitled to his rights under section 26‑F of B. T. Act. He has also submitted that although opposite‑party No.1 Abdul Tatter Bhuiyan was a non‑cultivator yet by reason of his purchase from persons who could be regarded as cultivators, he could claim in law to be the successor‑in‑interest of such vendors and as such could claim the privileges of a raiyat as allowed under the provision, of the Bengal Tenancy Act. He has also submitted that it cannot be said that section 26‑F of the Bengal Tenancy Act provides for allowance of improvement costs as claimed in the present case. On the question of equitable con siderations the learned Advocate has contended that the very fact that no notice under section 26‑C of the Bengal Tenancy Act was served shows that there was no scope for consideration of equity in favour of the present petitioners apart from the fact that the law does not permit or contemplate any such award of compen sation on the grounds of equity.

5. In the present case admittedly the pre‑emptor is not a cultivator. So also the purchaser is not a cultivator. The contest is between' two non‑cultivators over a. piece of plot which is a portion of an original raiyati holding bearing an annual jama of Rs. 11‑12‑

0. There were several plots which were comprised in the original raiyati holding. We are, however. concerned with one of such plots that is, plot No. 9569. A part of this plot was purchased as early as in 1933 by the pre‑emptor Abdul Taher Bhuiyan as stated above. Plot No. 9569 measures about 480 acres in area. Out of this the applicant for pre‑emption acquired '210 acre and the purchaser on the basis of Exh. 1‑A acquired ' 105 acre. From the recitals in the kabala Exh. 1, it is quite clear that this part of the plot was being used for dwelling purposes by the vendor of opposite‑party No.

1. It is not also disputed that property under schedule 2 as described in the kabala Exh. 1 was possessed separately by the vendors of the said kabala and it was being used as a dwelling house. It is also in evidence, rather admitted by opposite‑party No. 1, that since his purchase in 1933 a residential house has been constructed on this plot. The primary use of this plot seems to have been made as a dwelling house although it is not unlikely that something in the nature of a kitchen‑gardening might have been undertaken by opposite‑party No.

1. Apart from the question as to whether the original agricultural purpose has been altered or not, the fact remains that this portion of the holding is being used since 1933 purely and substantially for residential purpose. With regard to the plot in question, which has become the subject‑matter of the present pre emption case, it appears that the present purchaser got it from one Jahura Khatoon who in her turn got the land from the successor‑in‑interest of original tenant Jalil. Exh. A is the kabala taken by Jahura Khatoon on 17‑1‑

50. It is noted in that document that for more than 12 years the land was lying as Patit land with bamboo clumps and other trees thereon. There is no indication as to whether this particular plot was used as early as in 1950 or immediately before that for agricultural purpose either as a homestead of an agricultural tenant or as a culturable land. It has, therefore, to be seen as to whether by means of user from time to time this piece of plot which has become the subject‑matter of pre‑emption, retained its original agricultural character or it was converted into a non‑agricultural land within the meaning of Non -Agricultural Tenancy Act, 1949.

6. On the question of the competency or locus standi of the petitioner for pre‑emption it has also to be seen whether the piece of land held by him has also become converted into .a non‑agricultural land within the meaning of Non‑Agricultural Tenancy Act.

7. There is no evidence, however, as to what has been the attitude of the landlord towards these plots or other plots com prised in the main raiyati holding. No Dakhda seems to have been produced by ether side no witness has been examined from the side of the landlord. There is no evidence also to indicate as to how the 16 annas interest in the original raiyati holding can now be made up. It seems, transfers have taken place from time to time with respect to small plots comprised in the original raiyati holding. It is not disputed that plot No. 9569 is situated in a municipal area and there have been at least 16 municipal holdings curved out of the raiyati holding in question. It will not be too much to say in the circumstances as appearing in the present case that the land lord takes no interest in the affairs that have been taking place in regard to these plots and further that no exception has ever been taken by the landlord to the use of any part of the plot or of the holding for purposes other than agricultural or horticultural. The question, therefore, is whether it can be said that the present kind of user was with or without the implied consent of the landlord as indicated in section 2 (4) (b) of the Non‑Agricultural Tenancy Act. It has been contended by the learned Advocate for the opposite‑party that it is not a correct procedure to test the point first as to whether it is a non‑agricultural land and, if so, whether it is excluded from the operation of the Bengal Tenancy Act. I, however, fail to understand the reason as to why in view of the Non‑Agricultural Tenancy Act having come into operation it should not be considered first as to whether the plot in question is liable to be governed by the provisions of the Non‑Agricultural 'Tenancy Act as contended by the resisting opposite‑parties. The issue is as to whether a particular piece of land is a non‑agri cultural land or not and, if so, whether it can be a fit subject for preemption under section 26‑F of the Bengal Tenancy Act. In my view, therefore, it has first to be tested as to whether the' particular piece of land as conveyed by Exh. 1 (a) can be regarded as a piece of non‑agricultural land as defined under the provisions of Non‑Agricultural Tenancy Act and if so, whether it can still be treated as a fit‑subject for pre‑emption, under the provisions of Bengal Tenancy Act. It may be noted in this connection that although the trend of decisions previous to the enactment of the Non‑Agricultural Tenancy Act indicated that the primary test was B to find out the original purpose of the tenancy yet according to the language as employed in section 2 (4) (b) of the Non‑Agricul tural Tenancy Act, user becomes a very important deciding factor The Courts below seem to have approached the question from a different angle. They have considered the question as to whether in view of the fact that there are still some vacant lands which might have been used for agricultural purpose the entire raiyati holding can be said still to be an agricultural holding they have not tried to find out the present nature and character of the plot claimed by way of pre‑emption or of the plot used by the pre emptor himself. They have not also considered the further question as to whether in the event of these particular pieces of plots being found as non‑agricultural land, the land in Exh. 1 (a) can still be a subject for pre‑emption under section 26‑F of the Bengal Tenancy Act. It is also very material for consideration as to whether the pre‑emptor Abdul Taher Bhuiyan could as a non agricultural tenant claim the right of pre‑emption as provided in section 26‑F of the Bengal Tenancy Act. It is difficult to reconcile that a jama can be enjoyed partly for agricultural and partly for non‑agricultural purpose and that by non‑cultivators, and yet, the jama should not be regarded as disintegrated.

8. In this connection the learned Advocate for the opposite party has contended that the recitals in the document itself Exh. 1‑A would indicate that both the seller and the purchaser looked upon the property as a piece of agricultural land and as such the purchaser was estopped from showing by other evidence that the land in question was anything other than agricultural land. The learned Advocate for the petitioners, however, relying upon a decision in the case of Shiromani Prasad Bhakat and another v. Raghunandan Prasad Shaw and others (58CWN612), contends that the purchaser cannot be estopped from showing the real nature or user of the land in question by means of other evidence. As for myself, I am inclined to think that in a case like this, it is very difficult to hold that the principle of estoppel as enunciated in section 115 of the Evidence Act, can stand in the way of the purchaser giving other evidence to show the real nature or character of the land: . The recitals in the document are undoub tedly a kind of evidence but by themselves those recitals cannot, in my view; estop the purchaser from giving other evidence. It has to be considered by reference to all possible evidence adaucec by the parties as to what is the real nature of the plots in question keeping in view that the word `Jote' as used in some of the documents does not necessarily signify that the land in ques tion is utilised for cultivation or other agricultural purpose. It may also be noted in this connection that the decisions relied upon by the learned Advocates for the parties for the purpose of showing that the original purpose of the tenancy should be the determining factor, were decisions in cases as between landlords and tenants. In the present case it seems, however, the landlord is taking no interest and has never raised a voice of protest and it will not be wrong to suppose that practically there has been a disintegration in the nature of the originally jama or holding. It is also difficult to conceive that parcels of land though originally comprised in a raiyati holding since held and used by non -cultivators for purposes other than agricultural or horticultural should still retain the original character of an agricultural land.

9. It is true that no steps seem to have been taken as pro vided under section 72 of the Non‑Agricultural Tenancy Act, but even without such things it has to be construed first as to whether the plots in question can be regarded as non‑agricultural lands and if so whether it can be said that there has been virtually a disintegration of the original tenancy and as such whether it can also be said that small tenancies have been formed or come into existence variously in conformity, with the Non‑Agircultural Tenancy Act. There has been no evidence given on either side as to how after the province wide acquisition under the State Acquisition and Tenancy Act the lands in question have been treated or the tenancies in question have been looked upon by the Government which seems to be the present landlord. It seems the tests of user as‑ indicated in section 2 (4) (b) of the Non Agricultural Tenancy Act has not at all been applied by the Courts below in coming to the conclusion that it was an agricultural piece of land or that the application under section 26‑F of the Bengal Tenancy Act was quite competent. In my view the Courts below have acted illegally and with material irregularity in the exercising of their jurisdiction in regard to this part of the case.

10. Next the question comes as to whether in the event of an application under section 26‑F of the Bengal Tenancy Act being maintainable, the opposite‑parties in the pre‑emption case were entitled to claim compensation by way of costs of improvement. The learned Advocate for the petitioners has relied upon a decision in the case of Ajay Kanta Poddar and another v. Sashila Sundan Poddar and others (47 C W N 149.). The learned Advocate for the opposite- parties, however, relied upon a decision in the case of Kishori Mohan Pal v. Sudha Moyee (A I R 1952 Cal. 353). It seems the decisions in 47 C W N 184 was considered in the case reported in A I R 1952 Cal.

353. It is quite true as held by Sen, J., in A I R 1952 Cal. 353 that in a case under section 26‑r of the Bengal Tenancy Act considerations relevant to the provisions of section 82 or section 156 do not arise. It has also been held by Sen, J., that con siderations of equity have no place within the four corners of sec tion 26‑F of the Bengal Tenancy Act. The learned Advocate for the opposite‑parties have also contended that in view of the provisions of section 26 B of the Bengal Tenancy Act it should be held that the right of transfer as provided in section 26‑B of the Bengal Tenancy Act is subject to the provisions of section 26‑F of the Bengal Tenancy Act. It may be noted in this connection that section 26‑B of the Bengal Tenancy Act inn terms makes it a con dition that the holding of an occupancy raiyat or a share or a portion thereof together with the right of occupancy therein shall subject to the provisions of this Act, be capable of being transferred in the same manner and to the same extent as other immovable property. The clause "subject to the provisions of this Act" as found in section 2b‑B of the Bengal Tenancy Act surely indicates that it is liable to be controlled by the provisions of section 26‑F of the Bengal Tenancy Act. The right of transfer as such may be subject to the right of pre‑emption that may be exercised in an appropriate case by a co‑sharer tenant. Seri, J., in his decision, however, does not refer to the provisions of section 23 of the Bengal Tenancy Act, according to which, a raiyat having a right occupancy in respect of any land may use the land in any manner. If, therefore, a raiyat having a right of occupancy is at liberty to use the lard in any manner as provided in section 23 of the Bengal Tenancy Act, the question arises as to whether the purchaser claiming to a successor‑in‑interest is at liberty to use the land since his purchase in any manner he likes and if so, whether in view of the fact that he had a legal right to use the purchased land in conformity with the provisions of law the investment, if any, made by him should be taken into con sideration in the event of his interest being pre‑empted by a third party, and whether a person having a legal right to use a particular land, if subsequently dislodged by any other individual on the strength of the provisions of section 26‑F of the Bengal Tenancy Act, should in all fairness have some consideration in the matter of his investment. The learned Advocate for the opposite‑parties has contended that even in such case the extent of such investment and the ‑ quantum of improvement costs should not exceed more than what a prudent man would have undertaken in view of the threat of possible claim that might be advanced by the pre‑emptor. It is not disputed that the purchaser was quite free to use the land and spend for his enjoyment from the date of purchase or before the expiry of four months from the service of notice under section 26‑C. These are some of the material considerations, which, I think, should have been weighed in the circumstances of the present case. Even if it appears that‑in view of section 23 of the Bengal Tenancy Act or in view of the general principles the purchaser is entitled to reimbursement in regard to the costs of improvement so far undertaken by him it has also to be determined to what extent on equitable considerations he should get relief.

11. It has been very seriously contended on behalf of the purchaser petitioners that the idea underlying the construction was to provide accommodation of some staff of the Madrassa and as such it was well within the meaning of section 26‑F of the Bengal Tenancy Act. The Court of appeal below, however, seems to have found that it was intended for the purpose of a hostel for accommodation of students. In view of the' peculiar fact of the present case, which is not disputed, that the purchase as per Kabala Exh. 1‑A was meant for the Madrassa. I do not think any great distinction can be made as between a residential quarter for the staff of the Madrassa and a hostel for the accommodation to be provided for the boys. It has, however, to be determined, in the event of the piece of land, which is the subject‑matter of pre‑emption in the present case, being found as an agricultural piece of land, and also in the event of the application under section 26‑F of the Bengal Tenancy Act being found, maintainable as to whether the construction of a building as in the present case can be regarded as an improvement of the holding, considering the use that can be made of the land in the situation it now is being surrounded by residential quarters within the municipal area, and considering also the fact that there seems to be no subject from the side of the landlord in regard to the constructions that may have been made so far; These aspects of the‑ questions need further investigation, and as I should think that the Court below have failed to consider the controversial points in the manner as indicated above there has been a material irregularity in the exercise of their jurisdiction.

12. In the result, this Rule is made absolute, the judgment and order as pissed by the Court below are set aside and the case is remitted to the trial Courts for disposal according to law in the light of the observations made above. It is, however, directed that no further construction should be made on the plot covered by Exh. 1‑A till the disposal of proceeding by the said Court. Parties will bear their own costs throughout upto this stage. Further costs will abide the result. K. B. A. Rule made absolute Case remanded.