ABDULLA KABIRversusMD. NASIRUDDIN

A                            ABDULLA KABIR
                                   v.
                             MD. NASIRUDDIN

                             FEBRUARY 1, 1989
B
            !B.C. RAY ANDS. RA1NAVEL PANDIAN, JJ.J

          West Bengal Land Reforms Act 1955 Sections2(6),(7) 3-A .and 8.

          West Bengal Non-Agricultural Tenancy Act 1949 Section 2(4)(a)
    and (24).
c
          West Bengal Estates Acquisition Act 1953 Section 2(g). Applica-
    tion for pre-emption-Maintainability of-'Holding of raiyat'-
    Homestead of agriculturist even though not standing on agricultural
    land to be treated as agricultural land.
D

          An application for pre-emption was tiled under the provisions of
    section 8 of the West Bengal Land Reforms Act, 1955 hY the responde11t
    to pre-empt a plot of land sold to the appellant by a Kobala dated
    May 16, 1974 by a co-sharer having 1/4 interest in the plot,
E
          The land in qnestion was owned by .an agriculturist and tie used to
    keep his agricultural implements in the said property. Ile als11 possessed
    other agricultural lands as agricultnrists and in occup311cy raly~tl
    interest. The suit property was recorded in his name as 'Raiyat Sthiti·

F
    ban' and the classification ofland was recorded as 'Bari' i.e. homestead
    of the said agriculturist. On September 20, 1967 the land was sold by a
    registered Kobala to 4 persons, and on October 28, 1968 one of ttie
                                                                                 t
    persons sold his share to the predecessor of the respondent. On the
    basis of this Kobala it was alleged that he was a co-sharer.

          The respondent tiled an application for pre··emption under sectio11
    8 of the West Bengal Land Reforms Act, 1955. The appellant contested
    the same contending in the written statement that the respondent was
    neither co-sharer of the holding nor an adjoining owner and that the
    disputed property is non-agriculture tenancy' that the petition was
    barred by limitation as the respondent was all along aware of the sale of
    the property and that the story of his coming to know only after taking
H   copy of the sale dee!I was absolutely false.


                                       396
                         ABDULLA KABIR v. MD. NASIRUDDIN                       397

                The Trial Court held that the respondent was a co-sharer and was       A
 +      entitled to pre-empt, the application of pre-emption was not barred by
        limitation as it was tiled within a period of 3 years of the knowledge of
        tlte same ;is no notice of the sale was served on the respondent. The
        Trial Court further held that the land was non-agricultural land and as
        S.l!Ch the application for pre-emption under section 8 was not maintain-       B
        ~ble. The miscellaneous case was accordingly dismissed.
I....
              The respondent filed an appeal, and the Additional District Judge
        reverse\! the findings of the Trial Court, and held that the suit property
        was recorded as raiyati interest in the R.S. Record of Rights and being
        !be homestead land of an agriculturist, the application for pre-emption
        un<!er section 8 was maintainable. The appeal was allowed and the              c
        j11dgment of the trial court was set aside.

               The appellant filed a revision petition in the High Court. During
        its pendency he made an application for amendment claiming alterna-
        tive relief for pre-emption under section 24 of the West Bengal Non-           D
        A,gricllltural Tenancy Act, 1949. The High Court held that even if the
        land was non-agricultural land, pre-emption could be granted under
        section 24 of the W.B, Non-Agricultural Tenancy Act, but dismissed the
        petiti9n 011 the groom! that tbere was no jurisdictional defect or error
        entitling the Court to interfere in revision.
                                                                                 E
              In the appeal to this Court by special leave, it was contended on
        behalf of the appellant that the land has been recorded as in the R.S.
        Record of rights as non-agricultural land, and that the Trial Court had
        rigbtly held that Section 8 of the Land Reforms Act was not applicable
        to such a holding. The decision of the High Court to the effect that the
        finding recorded by the Appellate Court to the contrary suffered from F
        no jurisdictional error was therefore wholly unwarranted. Relying on
        Eyachhin Ali Naskar v. Golap Gazi, [1979) 83 CWN 87 it was contended
        that nature of holding had to determined with reference to the user of
        land comprised in the holding.

              Dismissing the appeal,                                                   G

              HELD: I. The application for pre-emption under sec(i9n 8
        (If Wes\ Bengal Land Reforms Act was properly allowed hy !l!e
        lower a.PPe!!!lte court. al!\l tile sai!i orller · was maintained by ttii:ll
        com:\. There is np i11firmity ii! thjs finding, an!l III~ ~~mf ··i~
        11Phe!!l, l4QQQ-l:!]                                  .                        H
    398                   SUPREME COURT REPORTS            [1989] 1 S.C.R.

A         2. The definition of land as given in section 2(7) of the West
    Bengal Land Reforms Act, 1955 means agricultural land, and includes
    homesteads. But, 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. Eyachhin Ali
B   Naskar and Anr. v. Golap Gazi, 119791 83 C.W.N. 87 per incuriam &
    over ruled. [404E-FJ

          3. On a conspectus of the provisions contained in section 2(8)
    W.R. Estates Acquisition Act 1953 & section 2(4)(a) W.B. Non-
    Agricultural Tenancy Act, 1974 it follows that 'Homestead' of an
    agriculturist even though the same is included in the holding of the
c   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 Act read with West Bengal
    Estates Acquisition Act and West Bengal Non-Agricultural Tenancy
    Act. [404G-H; 405A]
D
          4. There is nothing to show that the non-agricultural land in the
    instant case has vested and the same has not been retained by the
    owner, nor is there anything to show that the original owner had in his
    possession non-agricultural land exceeding the ceiling limits, even
    assuming that the land is non-agricultural land. But the land being
    homestead of an agriculturist is agricultural land. Therefore, the
E
    amended provision of section 3A of the West Bengal Land Reforms Act
    does not require consideration in this matter. [406C-E]

          Dwarka Nath Prasad A ta/ v. Ram Rati Devi, [1980[ I SCC 17 and
    Luigi Ambrosini, Ltd. v. Bakara Tinko and Another, A.I.R. 1929(PC)
    306, distinguished.
F
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 525
    of 1989.

         From the Judgment and Order dated 11.12.1985 of the Calcutta
    High Court in Civil Rule No. 2716 of 1981
G
          Shankar Ghosh and Rathin Das for the Appellant.

          D.P. Mukherjee, and G.S. Chaterjee for the Respondent.

H         The Judgment of the Court was delivered by
               ABDULLA KABIR v. MD. NASIRUDDIN [RAY, J.[          399

      RAY, J. Special leave granted. Heard learned counsel for both     A
the parties.

      This appeal on special leave arises out of an application for pre-
emption 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 appel- B
lant, Abdulla Kabir by a Kabala dated May 16, 1974 by a c_o-sharer
having I/4th interest in plot No. 115/852 appertaining to Khatian
No. 1944 on the ground of his being co-sharer in the said holding. The
land in question i.e. plot No. 115/852 measuring 0.3 cents was owned
by one Sarat Chandra Dutta, son of Amulaya Ratan. Sarai Chandra
Dutta was an agriculturist and he used to keep his agricultural imple- C
men ts in the said property.· He also possessed along with the said land
other agricultural lands as agriculturist and in occupancy raiyati
interest. During R.S. operation also the said property was recorded in
his name as 'Raiyat Sthitiban' and the classification of land was
recorded as 'Bari' i.e. homestead of the said agriculturist. On Septem-
ber 20, 1967, Sarat Chandra Dutta, owner of the said plot of land, sold D
the same by a registered Kabala to four persons namely Sisir Kumar
Monda!, Naba Kumar Monda!, Madhusudan Monda! and Purnalak-
shmi Monda!. Thereafter on October 28, 1968 Sisir Kumar Monda! and
Naba Kumar Monda! sold their shares to Nurunessa Khatun,
predecessor of the respondent-petitioner. On the basis of this Kabala
Nurunessa Khatun became co-sharer in respect of the said land. After E
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 I/4th interest to the appel-
lant, Abdulla Kabir by Kabala (Exh. l(b). It is the case of the
respondent-petitioner that as no notice ofrhe said sale was served on
his mother, Nurunessa Khatun, he could not kn·ow of the said sale F
earlier. 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 uner 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 G
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 pre-
emption 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 oopy of sale deed on May 3, 1977 was absolutely false. H
    400                    SUPREME COl}RT REPORTS           11989) 1 S.C.R.

A   The distuted deed does not contain the recital that the respondent-
    petitioQer was an adjoining l11nd owner. The petition for pre-emption
    in sue!\ circumstances was Ii.able to be dismissed. Three issues were
    framed PY the Trial Court i,e.:

          (1) W)jether the case land is non-agricultural and whether sec•
B         tion. 8 of the West Ilengal Land Reforms Act will be applicable in
          this case;

          (2) Whether tl\e petitioner was a co-sharnr in respect of case



c
          holding from before purchase of the disputed land;

          (3) Whether the case is barred by limitation?
                                                                                 -1
           The Trial Court held that the petitioner-respondent was a co-
    sharer and was entitle!! to pre-empt; the application for pre-emptiol)
    was not barre!! 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
D   petitioner-respondent, The Trial Court further held that the subject
    matter of tl\e sale was recorded as "Bastu" in the Kobala dated May
    16, 1974 (Exh. l(b) and "Bari" in the R.S. Record of Right (Exh. 3(h)
    a,nd thpµgh Sarai Chandra Dutta, the owner of the land was an
    agriculturist yet this homestead land being not included in the raiyat
    holding cpuld not be treated as agricultural land according to the
E   provisioQs of West Bengal Land Reforms Act because of the non-
    agricultural use as evident from the R.S. Record of rights. The land is
    non-agricultural la11!1 and as such the application for pre-emption
    under Section 8 of the said Act was not maintainable. The Misc. Case
    W!ls, thernfore, dismissed.

F         Agllinst the said judgment and ord\Or, Misc. Appeal No. 84 of
  19S0 was filed by the respondent in the 2nd Court of the Addi. District
  Ju!ige, f!jrpl\uni. The appellate court reversed the findings of the trial
  court and held that the suit property was recorded as of raiyati interest
  jn tpe R,S. Record of rights and the suit land being the homestead of
  S;uat Chandn1 Putta who was an agriculturist, it was agricultural land
G according Ip the provisions of the said Act and the application for
  pm-emption und!lr Section 8 of the West Bengal Land Reforms Act
  W<!S maint<!ina!>Je. The appellate court further upheld the findings of
  ihc;i trial court that the appiiclltion was not barred by limitation and the
  appellant (respondent herein) was a co-sharer of the said land, The
  Misc, A,ppe~l W!!s, therefore, allowed and the jud$llent of the trial
H c!lurt W!lS set aside.
                   ABDUIL;\ ~IR v. MD, !'/ASIRUDD[N IRAY, J.]                    4111
               Ag;iinst this judgme11t and order of the appellate court, tile ap-
      pellant, Abdulla Kabir filed a petition in revision being C,Il, N\l, 27l6
                                                                                        A
      (:if 19.61 i11 the High Court 11t C!lkl!tta, Puring tne Pende11cy of tile said
      Revision!l! c;ise the reswndent-pre-e111ptor niad~ ll!l application fQr
      !llllend111ent of the relief clai111ed i11 the application for pre-emp\i9l1 by
      a!l!ling ;m alternative relief for pn;-empti1:m undl!r Sectio11 24 of th~
      West Bengal N!ln-Agricu!turnl Tena11CY Act, After llearing bot!i t!ie
      parties, the !\l!lendment was allowed subject to the payme~t of costs
      quantifie!I at Rs.1,000. Tllereaf!er, on December 11, 1985 the Civil
      Rule was disclmrged by holdin!l that:

                   " .. , . , l am n9! s&tisfied that the fillding rncorded \>y tile
                   appellate court based as it is on an assessment of evide11ce.
                   sµffers from ally jurisdicti<mal Qefect or errQr, s\l a& to e11ti-
                   tle this Court io i11terfere in revisjqp, This C!l\lrt cannot
1                  enter into evidence !Ille! comet() its conclusion,"

            It has !llS() bee11 held tnat in view of the !l111enc!me11t 9f tile peti-
      tion even if it is held that the Janel was n()n-agricu!Wral land, pre-            D
      C;Jmption c9uld be granted under S!'cti9n :24 of the N9n-Agriculturnl
      Tenancy Act.

            Against this jud!ll1lent !Ind order, the instant appeal on special
      leave has been preferred in this Court.                 ·-

             Dr. Ghosh, learned counsel appearing on h10!mlf of the appt;!lant
      h11s contended in the first place that the land in questio11 has been
      recorded as "Bari, teen khanna ghar" in the R,S, Recore! of rights i,e.
      it is not agricultural land, The land is used for non-itgricultural
      pu[poses th()ugh the/right of the owner of the !;in(! has heeri recorded
--+
 }    as agriculturist ''raiyai sthitiba_n, ". He further contendecl that as the        f
I
      'bari' or the homestead is not situ!lted Qn the agricultural !a11d in the
      holding held by a Raiyat, it can!lot be trea\eQ as agriQu)t11rll.! Jamj, Jt is
      non-agricultural land used fc:>r non-agric11!t11rnl p11rJioses an(! the pr()vj"
      sions of Section 8 of the Land Reforms Act are not-11pp!icahle to ~ucll a
      holding as has been held by t!tco trial court. The finding of the ttigh
      Court to the effect that there was no err9r ()f iuriscllcfi9n is wh\lily          G
      unwarranted and as such the appeal should be al!ciwed.                        ·

            Dr. Ghosh n11i<;t contended referring to the \lecisi\ln in l}yq~h~
      Mn Ali Naskar and Anr. v. Golap Gazi, I1979] 8:3 CWN s'i tl!at
      the nature of the holding whetl!er it is agricu!t11rn! or !!011-agricyl-
      tural has to be determined with referel!Ge to the \Iser Qf th~ land               H
    402                   SUPREME COURT REPORTS             119891 1 S.C.R.

                                                                              -+
          1
A   co~pr ised  in the holding. dThe land in question is used for non-
    agncu tural purposes and it oes 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 R.S. Record of rights, it is to be
    treated as non-agricultural land.
B
          Dr. Ghosh next submitted that the High Court did not give a         .>.
    definite finding whether Section 8 of the Land Reforms Act or Section
    24 of the West Bengal Non-Agricultural Tenancy Act was applicable in
    this case. Mr. Ghosh, therefore, submitted that there has been an
    error of jurisdiction and the appeal should be allowed.
c        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 appellant should be permitted to take such de-
0   fences 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 v. Ram Rati
    Devi, 11980] 1SCC17 and Luigi Ambrosini Ltd. v. Bakare Tinko and
    Another, A.LR. 1929 PC 306.

E        We are unable to accept the contentions made on behalf of the
    appellant for the reasons stated hereinbelow.

          The land in question which is V..th share of plot No. 115/852 has
    been recorded in the R.S. Record of rights as "Raiyat Sthitiban" i.e.
    the original owner of the said land Sarat Chandra Dutta was a raiyat
F   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 Sarai Chandra Dutta who is on
    agriculturist being recorded as raiyat.

G        Section 2(6) 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."

H         Section 2(7) defines land as under:
            ABDULLA KABIR v. MD. NASIRUDDIN [RAY, J.]                 403

            "land" means agricultural land other than land comprised A
            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            B
            as in the West Bengal Estates Acquisition Act, 1953"

       So according to the above provisions the homestead of an ag-
riculturist 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
R.S. record of rights. The owner of the said land Sarai Chandra Dutta
is also recorded as a raiyat i.e. "raiyat sthitiban". In other words, it is C
the homestead of a raiyat i.e. an agriculturist. The trial court held that
this R.S. record of right is not erroneous as the same has not been
challenged by any body in the petition. Rather the respondent-
petitioner supported the contention that "Sarai Chandra Dutta, the
owner of plot No. 115/852 was mainly an agriculturist and his main D
source of living was agriculture." The learned Munsif however, held
that since the said homestead is not included in the holding of the
raiyat i.e. 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. v. Golap Gazi (supra). This finding of the trial court has been E
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. v. Golap
Gazithat:
                                                                            F
            " ..... 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 2(6) 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 G
           "land" in the Act 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 Estate Acquisi-
           tion Act, 1953 and includes homesteads."

     It has been further observed that:                                     H
    404                   SUPREME CdlJkT REPORTS             11989] 1 S.C.R.

A
                " , , , , . iii a case where as here the holding is recorded as
               bastu and the non-agrictiltural user is also evident, as
               appeatirtg i'rorn the revisionai record of rights wherein it
               has beert 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 applicabie, as the Act
B              applies to agricultural lands only."

         This obser\iation 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 Bertgai Non-Agticulturai Tenancy Act, 1949 amended by
  Act S of 1974. Sectitlii 2(4)(a) defines non-agricultural land as land
C used for purposes not connected with agricitlture or horticulture but
  does 11ot include a homestead to which the provisions of the West
  Bengal Land Reforms Act, i95S apply, Taking notice of this provision
  it is crystal cleat that homestead land does not fall within the province
  of rtoii-agriculhital land both under the Non-Agricultural Tenancy Act
  as well as urtdet the West Bengal Land Reforms Act, 1955. In that
D view of the matter the whole basis of the observation of the High COurt
  to the effect "that where ihe holding is recorded as bastu and the
  non-agricultural user is also evident, as appearing from the revisional
  record Uf rights wherein it has been stated that there are two huts
  standing thereon, the land cahoot be treated as land to which the provi-
  sions of the Land R.eforms Act will be applicable as the Act applies to
E agfictfiiiiral liiitds oriiy" is wrong. The judgment is per incuriam. As
  has been stated liereinbefote that the definition of land as given in
  the West Bengal Land Reforms Act, 1955 refers to agricultural land
  and iflcltides homestead. Explanation to sub"section 7 of section 2
  furl.lier provides that "Homestead shall have the same meaning as ii1
  th!! West Bengal Estates Aequisiticin Act, 1953.;' Section 2(g) of the
F West Bengal Estates Acquisition Act; i953 defines;

                "Homestead'; means a dwelling house together with-any
                court, yard, comptiund, garden, out-house, place of wor-
                ship, 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 ,cjf the aforesaid provisions, it obviously
  follows tliat homestead of art agriculturist even though the same is
  irtduded Iii the ho1dii1g of ihe taiyat but not on the agricultural land
  stili it 1s to 1be treated as agtietiitutaI land bemg the homestead of the
H agficUJttitist iilltfor the ptoviSioils of the West Bengal Land Reforms
                                 ,
                      >- .~--;-/,'.,,--- ':;..., . : \




                  ABDULLA'KABIR v. MD. NASIRUDDIN IRAY, J.) .,_.       ____405
                                                                             ,




      Act read with West Bengal Estates Acquisition Act and West Bengal
                                                                                  A
      Non-Agricultural Tenancy Act. Therefore;' the application under Sec-
      tion 8 of the West Bengal Land Reforms Act filed by the respondent-
      petitioner as a co-sharer of the said holding for pre-emption of the land
      purchased by a stranger i.e. the appellant is maintiiinable 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              B
      Bengal Land Reforms Act was properly allowed by lower appellate
,     court and the' said order was maintained by High Court. There is no
      infinility 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 Non-
      Agricultural Tenancy Act has been inserted in the application for pre-
                                                                               c
      emption. 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
      application for amendment norat the final hearing of the Revision
      Case any_ objection was raised on , this score. Moreover, we have D
      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. Section 3A which has been       E
      introduced by West Bengal Land Reforms (Amendment) Act, 1981 is
      quoted hereinbelow:_

                  "3-A. Rights of all non-agricultural tenants and under.
                  tenants in non-agricultural land to vest in the State-(1)
                  The rights of all non-agricultural tenants and under• , f
                  tenants under the West Bengal Non-Agricultural Tenancy
                  Act, 1949 (West Bengal Act XX of 1949), shall vest in the
                  State free from all incumbrances and the provisions of sec>
                  lions 4, 5 and 5A of Chapter II of the West Bengal Estates, -
                  Acquisition Act, 1953 (West Bengal Act I of 1954), shall,
                  with such modification as may be necessary, apply mutatis ()
                 -mutandis 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 mm-
                  agricultural tenant or under-tenant were a raiyat.            Ii
    406                   SUPREME COURT REPORTS            [1989) I S.C.R.

A               (2) On the vesting of the estates and rights of inter-
                mediaries in any non-agricultural land under sub-section
                (!),the provisions of Chapter IIS of this Act shall apply.

                (3) Every intermediary whose estates or interests have
                vested in the State under sub-section (1), shall be entitled
8               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 non-
  agricultural tenants by treating them as intermediaries 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 ques-
c tions  involved in this appeal. There is nothing to show that the non-
  agricultural land in plot No. 115/852 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, Sarai Chandra Dutta had in his possession
  non-agricultural land exceeding the ceiling limits even assuming for
D arguments sake that the land in question is non-agricultural land. But
  we have held hereinbefore that the land being homestead of an ag-
  riculturist is agricultural land. Therefore, the amended provision of
  Section 3-A of the said Act does not require consideration in the
  instant appeal in the background of the facts and circumstances of the
  case and the issues involved herein. The submission made on behalf of
E 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 v. Ram Rati Devi (supra). In that case
  an application was filed under Section 24 of West Bengal Non-
F Agricultural Tenancy Act asking for pre-emption in respect of the
  property mentioned in Schedule A of the application. The appellant
  resisted the respondent's claim for pre-emption on various grounds
  including ihe 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 appli-
G cation   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
H holding that the land was non-agricultural land and the, Subordina.te
                      ABDULLA KABIR v. MD. NASIRUDDJN [RAY, J.]               407

    ·~·   Judge had jurisdiction to entertain the application. The judgment A
          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 prelimi-
          nary question whether the court had jurisdiction to entertain the appli-
          cation and the other issues raised therein were not decided by the trial B
          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 appella])t 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 remanded for disposal. The decision in C
          Luigi Ambrosini, Ltd. v. 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 application to the   D
          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.
                                                                                    E
                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.

t
i
          N.V.K.                                               Appeal dismissed.
                                                                                    F