ivil Appeal No 525 of 1989
From the Judgment and Order dated 11121985 of the Calcutta High Court in Civil Rule No 2716 of 1981 Shankar Ghosh and Rathin Das for the Appellant
DP Mukherjee and GS Chaterjee for the Respondent
The Judgment of the Court was delivered by 399 RAY J
Special leave granted
Heard learned counsel for both the parties
This appeal on special leave arises out of an applica tion for preemption filed under the provisions of Section 8 of West Bengal Land Reforms Act 1955 West Bengal Act X of 1956 by the respondent Md Nasiruddin to pre empt the land sold to the appellant Abdulla Kabir by a Kobala dated May 16 1974 by a co sharer having 14th interest in plot No 115852 appertaining to Khatian No 1944 on the ground of his being co sharer in the said holding
The land in ques tion ie plot No 115852 measuring 03 cents was owned by one Sarat Chandra Dutta son of Amulaya Ratan
Sarat Chandra Dutta was an agriculturist and he used to keep his agricul tural implements in the said property
He also possessed along with the said land other agricultural lands as agri culturist and in occupancy raiyati interest
During RS operation also the said property was recorded in his name as Raiyat Sthitiban  and the classification of land was re corded as Bari  ie homestead of the said agriculturist
On September 20 1967 Sarat Chandra Dutta owner of the said plot of land sold the same by a registered Kobala to four persons namely Sisir Kumar Mondal Naba Kumar Mondal Madhusudan Mondal and Purmlakshmi Mondal
Thereafter on October 28 1968 Sisir Kumar Mondal and Naba Kumar Mondal sold their shares to Nurunessa Khatun predecessor of the respondent petitioner
On the basis of this Kobala Nurunessa Khatun became co sharer in respect of the said land
After the death of Nurunessa Khatun her heirs including the eldest son the respondent petitioner inherited the right of occupancy as co sharer
On May 16 1974 Purnalakshmi sold her 14th interest to the appellant Abdulla Kabir by Kobala Exh lb
It is the case of the respondent petitioner that as no notice of the said sale was served on his mother Nurunessa Khatun he could not know of the said sale earli er
However on taking certified copy of the said sale on May 3 1977 the respondent petitioner filed an application for pre emption under Section 8 of the West Bengal Land Reforms Act after depositing the requisite sum as required to be deposited under the said Act
This application was registered as Misc
Case No 36 of 1977 in the Court of Munsif 2nd Court Bolpur
The appellant contested the case by filing a written objection contending inter alia that the respondent petitioner was neither co sharer of the holding nor an adjoining land owner
The disputed property is non agricultural tenancy
The petition for preemption is barred by limitation as the respondent petitioner was all along aware of the said sale and the story of his coming to know of such sale after taking copy of sale deed on May 3 1977 was absolutely false
400 The distuted deed does not contain the recital that the respondentpetitioner was an adjoining land owner
The peti tion for pre emption in such circumstances was liable to be dismissed
Three issues were framed by the Trial Court ie 1 Whether the case land is non agricultural and whether section 8 of the West Bengal Land Reforms Act will be ap plicable in this case 2 Whether the petitioner was a co sharer in respect of case holding from before purchase of the disputed land 3 Whether the case is barred by limitation The Trial Court held that the petitioner respondent was a cosharer and was entitled to pre empt the application for pre emption was not barred by limitation as it was filed within a period of three years of knowledge of the same as no notice of sale was served on the petitioner respondent
The Trial Court further held that the subject matter of the sale was recorded as Bastu in the Kobala dated May 16 1974 Exh lb and Bari in the RS Record of Right Exh
3h and though Sarat Chandra Dutta the owner of the land was an agriculturist yet this homestead land being not included in the raiyat holding could not be treated as agricultural land according to the provisions of West Bengal Land Reforms Act because of the nonagricultural use as evident from the RS Record of rights
The land is non agricultural land and as such the application for pre emp tion under Section 8 of the said Act was not maintainable
The Misc
Case was therefore dismissed
Against the said judgment and order Misc
Appeal No 84 of 1980 was filed by the respondent in the 2nd Court of the Addl
District Judge Birbhum
The appellate court reversed the findings of the trial court and held that the suit property was recorded as of raiyati interest in the RS Record of rights and the suit land being the homestead of Sarat Chandra Dutta who was an agriculturist it was agri cultural land according to the provisions of the said Act and the application for pre emption under Section 8 of the West Bengal Land Reforms Act was maintainable
The appellate court further upheld the findings of the trial court that the application was not barred by limitation and the appel lant respondent herein was a co sharer of the said land
The Misc
Appeal was therefore allowed and the judgment of the trial court was set aside
401 Against this judgment and order of the appellate court the appellant Abdulla Kabir filed a petition in revision being CR No 2716 of 1981 in the High Court at Calcutta
During the pendency of the said Revisional case the respond ent pre emptor made an application for amendment of the relief claimed in the application for pre emption by adding an alternative relief for pre emption under Section 24 of the West Bengal Non Agricultural Tenancy Act
After hearing both the parties the amendment was allowed subject to the payment of costs quantified at Rs 1000
Thereafter on December 11 1985 the Civil Rule was discharged by holding that   
I am not satisfied that the finding recorded by the appellate court based as it is on an assessment of evidence suffers from any jurisdictional defect or error so as to entitle this Court to interfere in revision
This Court cannot enter into evidence and come to its conclusion
 It has also been held that in view of the amendment of the petition even if it is held that the land was non agri cultural land preemption could be granted under Section 24 of the Non Agricultural Tenancy Act
Against this judgment and order the instant appeal on special leave has been preferred in this Court
Dr Ghosh learned counsel appearing on behalf of the appellant has contended in the first place that the land in question has been recorded as Bari teen khanna ghar in the RS Record of rights ie it is not agricultural land
The land is used for non agricultural purposes though the right of the owner of the land has been recorded as agricul turist raiyat sthitiban
 He further contended that as the bari  or the homestead is not situated on the agricultural land in the holding held by a Raiyat it cannot be treated as agricultural land
It is non agricultural land used for non agricultural purposes and the provisions of Section 8 of the Land Reforms Act are not applicable to such a holding as has been held by the trial court
The finding of the High Court to the effect that there was no error of jurisdiction is wholly unwarranted and as such the appeal should be allowed
Dr Ghosh next contended referring to the decision in Eyachhin Ali Naskar and Ant
vs Golap Gazi that the nature of the holding whether it is agricultural or non agricultural has to be determined with reference to the user of the land 402 comprised in the holding
The land in question is used for nonagricultural purposes and it does not form a part of his raiyati holding comprising of Agricultural land
Therefore it cannot be treated as agricultural land under the West Bengal Land Reforms Act
The land being recorded as Bastu in the RS Record of rights it is to be treated as non agricultural land
Dr Ghosh next submitted that the High Court did not give a definite finding whether Section 8 of the Land Re forms Act or Section 24 of the West Bengal Non Agricultural Tenancy Act was applicable in this case
Mr Ghosh there fore submitted that there has been an error of jurisdiction and the appeal should be allowed
Dr Ghosh has lastly contended that Section 3A was inserted by West Bengal Land Reforms Amendment Act 1981 and assent of the President to the same was published in the Gazette on 24th March 1986
Referring to this provision he submitted that the matter should be sent back and the appel lant should be permitted to take such defences in view of the amended provisions as are available to him and the matter should be re heard by the trial court
He drew the notice of the court to the decisions in Dwarka Nath Prasad Atal vs Ram Rati Devi and Luigi Ambrosini Ltd vs Bakare Tinko and Another AIR 1929 PC 306
We are unable to accept the contentions made on behalf of the appellant for the reasons stated hereinbelow
The land in question which is 14th share of plot No 115852 has been recorded in the RS Record of rights as Raiyat Sthitiban ie the original owner of the said land Sarat Chandra Dutta was a raiyat and the classification of the land has been recorded as bari
The entry in the record of right is presumed to be correct and this has not been challenged by any body
It therefore appears that the land in question is the homestead land of Sarat Chandra Dutta who is on agriculturist being recorded as raiyat
Section 26 of the West Bengal Land Reforms Act 1955 defines holding as holding means the land or lands held by a raiyat and treated as a unit for assessment of revenue
 Section 27 defines land as under 403 land means agricultural land other than land comprised in a tea garden which is retained under sub section 3 of section 6 of the West Bengal Estates Acquisition Act 1953 and includes homesteads but does not include tank
Explanation Homestead shall have the same meaning as in the West Bengal Estates Acquisi tion Act 1953 So according to the above provisions the homestead of an agriculturist is agricultural land
It has been found by the courts below that the land in question is a homestead land recorded as Bari in the RS record of rights
The owner of the said land Sarat Chandra Dutta is also recorded as a raiyat ie raiyat sthitiban
In other words it is the homestead of a raiyat ie an agriculturist
The trial court held that this RS record of right is not erroneous as the same has not been challenged by any body in the petition
Rather the respondentpetitioner supported the contention that Sarat Chandra Dutta the owner of plot No 115852 was mainly an agriculturist and his main source of living was agriculture
 The learned Munsif however held that since the said homestead is not included in the holding of the raiyat ie the homestead does not stand on the agricultural land included in his holding the homestead land cannot be treated as agricultural land relying on the decision in Eyachhin Ali Naskar and Anr
vs Golap Gazi supra
This finding of the trial court has been negatived by the lower appellate court as well as by the High Court and it has been held that the said homestead land is agricultural land
This finding in our view is quite valid and legal
It has been observed by the Calcutta High Court in Eyachhin Ali Naskar and Anr
vs Golap Gazi that   
It is thus obvious that the nature of the holding has to be determined with reference to the user of its land or lands under the said Act
Section 26 of the West Bengal Land Reforms Act defines holding as the land or lands held by a raiyat and treated as a unit for assessment of revenue
Under clause 7 of Section 2 of the same Act land in the Act means agricultural land other than land comprised in a tea garden which is re tained under subsection 3 of Section 6 of the West Bengal Estate Acquisition Act 1953 and includes homesteads
 It has been further observed that 404   
In a case where as here the holding is recorded as bastu and the non agricultural user is also evident as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable as the Act applies to agricultural lands only
 This observation of the High Court has been made wrongly in as much as the High Court did not take notice of the amended provision of the West Bengal Non Agricultural Tenan cy Act 1949 amended by Act 8 of 1974
Section 24a defines non agricultural land as land used for purposes not connected with agriculture or horticulture but does not include a homestead to which the provisions of the West Bengal Land Reforms Act 1955 apply
Taking notice of this provision it is crystal clear that homestead land does not fall within the province of non agricultural land both under the Non Agricultural Tenancy Act as well as under the West Bengal Land Reforms Act 1955
In that view of the matter the whole basis of the observation of the High Court to the effect that where the holding is recorded as bastu and the non agricultural user is also evident as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable as the Act applies to agricultural lands only is wrong
The judgment is per incuriam
As has been stated hereinbefore that the definition of land as given in the West Bengal Land Reforms Act 1955 refers to agricultural land and includes homestead
Explanation to sub section 7 of section 2 further provides that Homestead shall have the same meaning as in the West Bengal Estates Acquisition Act 1953
 Section 2g of the West Bengal Estates Acquisition Act 1953 defines Homestead means a dwelling house together with any court yard compound garden out house place of worship family graveyard library office guest house tanks wells privies latrines drains and boundary walls annexed to or appertaining to such dwelling house  Therefore on a conspectus of the aforesaid provisions it obviously follows that homestead of an agriculturist even though the same is included in the holding of the raiyat but not on the agricultural land still it is to be treated as agricultural land being the homestead of the agriculturist under the provisions of the West Bengal Land Reforms 405 Act read with West Bengal Estates Acquisition Act and West Bengal Non Agricultural Tenancy Act
Therefore the applica tion under Section 8 of the West Bengal Land Reforms Act filed by the respondentpetitioner as a co sharer of the said holding for pre emption of the land purchased by a stranger ie the appellant is maintainable under law as has been rightly held by the lower appellate court as well as High Court
The application for pre emption under Section 8 of West Bengal Land Reforms Act was properly allowed by lower appellate court and the said order was maintained by High Court
There is no infirmity in this finding and we uphold the same
As regards the second contention it appears that by amendment an alternative relief under Section 24 of the West Bengal NonAgricultural Tenancy Act has been inserted in the application for preemption
It also appears that the said application for amendment was allowed after hearing both the parties and that no objection to the said application for amendment was taken at the time of hearing of the applica tion for amendment nor at the final hearing of the Revision Case any objection was raised on this score
Moreover we have already held that Section 8 of West Bengal Land Reforms Act is applicable to this case
The appellant therefore cannot be permitted to raise this question anew in this Court
The last submission advanced on behalf of the appellant is also in our considered opinion of no substance
Sec tion 3A which has been introduced by West Bengal Land Re forms Amendment Act 1981 is quoted hereinbelow 3 A Rights of all non agricultural tenants and undertenants in non agricultural land to vest in the State 1 The rights of all non agricultural tenants and undertenants under the West Bengal Non Agricultural Tenancy Act 1949 West Bengal Act XX of 1949 shall vest in the State free from all encumbrances and the provisions of sections 4 5 and 5A of Chapter II of the West Bengal Estates Acquisi tion Act 1953 West Bengal Act I of 1954 shall with such modification as may be neces sary apply mutates mutant to non agricultural tenants and under tenants within the meaning of the West Bengal Non Agricultural Tenancy Act 1949 as if such non agricultural tenants and under tenants were intermediaries and the land held by them were estates and a person holding under a nonagricultural tenant or under tenant were a raiyat
406 2 On the vesting of the estates and rights of intermediaries in any non agricultural land under sub section 1 the provisions of Chapter IIS of this Act shall apply
3 Every intermediary whose estates or inter ests have vested in the State under sub sec tion 1 shall be entitled to receive an amount to be determined in accordance with the provisions of section 14V of this Act
 The said section refers to the vesting of the interest of nonagricultural tenants by treating them as intermedi aries and a right of retention of such non agricultural lands within the ceiling limit has been provided therein
This provision has nothing to do with the questions involved in this appeal
There is nothing to show that the nonagri cultural land in plot No 115852 has vested in the State and the same has not been retained by the owner nor there is any thing to show that the original owner Sarat Chandra Dutta had in his possession non agricultural land exceeding the ceiling limits even assuming for arguments sake that the land in question is non agricultural land
But we have held hereinbefore that the land being homestead of an agricultur ist is agricultural land
Therefore the amended provision of Section 3 A of the said Act does not require considera tion in the instant appeal in the background of the facts and circumstances of the case and the issues involved here in
The submission made on behalf of the appellant that the matter should be sent back to the trial court for giving the defendant an opportunity to raise issues on the amended provision for hearing and deciding the same by the court is not tenable
In the circumstances it is needless to consider the decision in Dwarka Nath Prasad Atal vs Ram Rati Devi supra
In that case an application was filed under Section 24 of West Bengal NonAgricultural Tenancy Act asking for pre emption in respect of the property mentioned in Schedule A of the application
The appellant resisted the respond ent s claim for pre emption on various grounds including the ground that the property involved in the proceedings being agricultural land civil court in which the respondent had filed her application for pre emption had no jurisdiction to entertain the application for pre emption by reason of the provisions of the West Bengal Land Reforms Act
The learned Subordinate Judge held that the property involved in the proceeding was agricultural land and so Section 24 of West Bengal Non Agricultural Tenancy Act was not attracted and civil court had no jurisdiction to entertain the applica tion
The application was dismissed
The order was set aside on appeal holding that the land was non agricultural land and the Subordinate 407 Judge had jurisdiction to entertain the application
The judgment having been confirmed in appeal by the High Court of Calcutta the petitioner filed an appeal on special leave before this Court
It had been held that since the judgment was rendered only on the preliminary question whether the court had jurisdiction to entertain the application and the other issues raised therein were not decided by the trial court the lower appellate court over ruled the said finding but instead of remanding the matter to the trial court for decision on the other issues disposed of the matter on merits whereas on the other issues the appellant might desire to lead evidence but that opportunity was denied to him
It was in the interest of justice that the appellant should be afforded an opportunity of being heard on the other issues
In that view of the matter the case was re manded for disposal
The decision in Luigi Ambrosini Ltd vs Bakare Tinko and Another supra does not apply to this case as the facts of that case are different from the facts of the instant case
As stated hereinbefore that this ruling has no applica tion to the facts of this case inasmuch as the application was not decided on a preliminary issue but the same has been decided on all the issues raised
Therefore there is no question for remanding the matter for decision on the other issues
We therefore find no substance in this contention advanced by the learned counsel for the appellant
For the reasons aforesaid we do not find any infirmity nor any illegality in the findings arrived at by the High Court
We therefore dismiss this appeal and uphold the judgment and order of the High Court
In the facts and circumstances of the case there will be no order as to costs
NVK Appeal dis missed


Summary:
The appellants are tenants of the premises belonging to the Respondent and have been carrying on business as a partnership firm in the said premises
The respondent filed an eviction petition against the appellant firm and another firm on the ground that the appellant had unlawfully and without the consent of the Respondent sub let the premises to the other firm
The Trial Court passed a decree for eviction against which the appellants preferred an appeal to the Appellate Authority
The Appellate Authority dis missed the appeal and upheld the finding of unlawful sub letting by the appellants
The appellants preferred a Civil Revision petition before the High Court which was also dismissed
The present appeal by special leave is against the High Court s decision
On behalf of the appellants it was contended that since the eviction petition had been filed without joining the partners of the other firm the sub tenant the eviction petition was not maintainable at all
Dismissing the appeal HELD 1
The objection that the eviction petition was filed against the appellants firm and the other firm was not maintainable as it had been filed without joining any of the partners of the said other firm as respondents or serv ing them as partners had not been raised at all till the stage of special leave and it is not open to the appellants to raise such an objection at a very late stage and thereby delay matters for a number of years
419F 420C 418 Chhotelal Pyarelal the partnership firm and others vs Shikharchand  distinguished
There is evidence to show that the other firm was carrying on business at the said premises and that the said firm carried on business in the said premises even for some time during which the appellants firm had ceased to carry on the business there
Moreover although a notice was given by the respondent to the appellants and the other firm to produce their income tax returns assessment orders as well as account books and ledgers for the relevant period these were not produced
It was open to the Trial Court from these circumstances to come to the conclusion that had the account books and ledgers been produced they would have shown that rent was received by the appellants from the other firm which would justify the finding of subletting
420D F