Panchu Sundari Dassi & Anr. v. Haripada Biswas Opposite Party.

2. This Rule raises an important question of law under the West Bengal Estates Acquisition Act, read with the Bengal Tenancy Act, including its amendment under West Bengal Act XIX of 1955.

3. The proceeding in question was a proceeding for pre-emption, started by the present petitioners under section 26F of the Bengal Tenancy Act. The petitioners claim that the disputed property formed part of an occupancy raiyati holding and, on its sale to the opposite party, they became entitled to pre-empt the same as and in the capacity of co-sharers of the said occupancy holding

4. The petitioners' claim was resisted by the opposite party on several grounds, of which it is necessary to mention only two, namely (i) that the holding in question was not an occupancy raiyati holding but was an under-raiyati, may be, with occupancy rights under local custom; and (ii) that the holding in question, even if it had become a raiyati holding by reason of the vesting provisions of the Estates Acquisition Act, including Chapter VI thereof, relating to vesting of raiyatis and under-raiyatis, it was still not an occupancy raiyati holding so as to be amenable to provisions of sec. 26F of the Bengal Tenancy Act.

5. The opposite party's objections were over-ruled by the learned Munsif who allowed the petitioners' application for pre-emption, but, on appeal by the opposite party, that decision was reversed by the learned District Judge who, being of the opinion that, although the disputed holding was a raiyati holding, it was not an occupancy raiyati holding, allowed the appeal before him and rejected the petitioners' application for pre-emption. Against this appellate order, the present Rule was obtained by the petitioners.

6. The relevant facts art not disputed. Prior to the vesting under the West Bengal Estates Acquisition Act, the disputed property formed part of an under-raiyati with occupancy rights by local custom that is under section 48G of the Bengal Tenancy Act. The under-raiyats, therefore, or, their predecessors, were, admittedly, in occupation for more than 12 years, inasmuch as at least from 1929 their occupation must be presumed in view of their having occupancy right by local custom under section 48G as aforesaid. On the vesting of the superior raiyati in the State under the Estates Acquisition Act, when the Chapter relating to vesting of raiyatis and under-raiyatis came into force, the status of the holders of this particular property, namely, of the under-raiyati, became elevated to that of raiyats. This was not disputed in either of the two courts below and, indeed, this cannot be disputed, as, by reason of the vesting, as aforesaid, the entire superior interest became merged in the State and the holders of this particular property must be considered to be holding directly under the State Admittedly, also, as the property in question was governed by the Bengal Tenancy Act, it was agricultural property and the purpose, also if the tenancy, it is not disputed, was cultivation. The holders of this particular property, therefore, were holding the same under the State which was the proprietor for purposes of cultivation. Accordingly, under the Bengal Tenancy Act, they acquired the status of raiyats and the holding in question became a raiyati holding.

7. The only point then, that needs consideration is whether this raiyati holding had attached to it occupancy rights. In the instant case, this holding had occupancy rights even as an under-raiyati holding by local custom which presupposes, as I have shown above, more than 12 years' occupation. Obviously then, under Chapter V of the Bengal Tenancy Act this holding would be an occupancy raiyati holding and the holders thereof would be occupancy raiyats unless that Chapter is excluded by some provision of law from applying to this particular holding.

8. It is, also clear that, unless occupancy right is conceded to this particular holding, it will be difficult to explain what will happen to the pre-existing occupancy right, which was attached to it by local custom. In any event, there can be no doubt that, unless Chapter V is excluded as aforesaid, the holding would be an occupancy raiyati holding. The learned District Judge, therefore, purported to rely upon the amendment of the Bengal Tenancy Act by West Bengal Act XIX of 1955, which amended section 116 of the original Act in a particular manner and, according to the learned District Judge, that amendment had the effect of depriving this particular holding from the benefits of occupancy rights under Chapter V of the Bengal Tenancy Act. It is clear, however, from the amendment in question that that will apply only to those lands which either an intermediary or some other person was entitled to retain under the provisions of the West Bengal Estates Acquisition Act but who has not retained the same. There is nothing in the records before me to show that the present case was one, falling within that description.

9. Indeed, no attempt has been made in the courts below and no attempt could be made before me, too, to show that the disputed property was land which some person was entitled to retain under the West Bengal Estates Acquisition Act but which he that person has not chosen to retain. If that be so, the amendment in question cannot apply to this particular case and cannot have the effect of depriving this particular holding or the holders thereof of the benefits of occupancy rights under Chapter V of the Bengal Tenancy Act. The learned District Judge was, therefore, in error in applying the said amendment as a bar to the attachment of occupancy rights to this particular holding and, once that bar is discarded, the position is perfectly clear that the holding before me was an occupancy raiyati holding, of which the holders were occupancy raiyats and the present petitioners were co-sharers in the said tenancy or occupancy holding, or co-sharer tenants of the same. They were, accordingly, entitled to pre-empt the impugned transfer to the opposite party and their application for pre-emption should succeed.

10. In the above view, I would make this Rule absolute, set aside the order of the learned District Judge and restore that of the learned Munsif.

11. In view of the uncertainty of the legal position and having regard to the fact that the point in dispute was apparently, at least, one of some difficulty and a question of law of first impression, I would direct the parties to bear their own costs throughout.

S.K.B