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Civil Rule No. 1233 of 1960, decided on 9th January 1962.

Ss. 103‑B, 26‑F & 26‑C‑Land recorded as korfa but described as occupancy raiyati holding in sale‑deed Presumption of record‑of‑rights‑Co‑sharer seeking pre‑emption presumed to have knowledge of real nature of tenancy‑Estoppel arises if purchaser describing as occupancy holding gives notice to co‑sharer tenant under S. 26‑C and application under S. 26‑F is filed thereon‑Under raiyati interest‑Pre‑emption under S. 26‑F not claimable‑[Moulana Hafiz Athar Ali v. Abdul Taher Bhuiyan P L D 1961 Dacca 349 rel.]

Ss. 3, 24 & 46‑A‑Held, that entire interests of rent receiver will be eliminated only after publication of compen sation assessment roll and not after notification under S. 3.

Md. Tofazzal Hossain Khan for Petitioners.

Debesh Chandra Bhattacharjee for the Opposite‑Parties.

This rule is directed against the order of pre‑emption passed against petitioners in an application under section 26‑F of the Bengal Tenancy Act filed by the opposite‑parties.

2. Petitioners purchased the case land by the kabala Exh. C (1) dated 6‑8‑56, from Jamir Bepari, Rabi Bepari, and Kalu Bepari. In the kabala, he was described as occupancy raiyati holding. Opposite‑parties filed the application under section 26‑F of the Bengal Tenancy Act for pre‑emption of the land on the grounds that they were co‑sharers of the occupancy holding and that the petitioners were stranger‑purchasers. Petitioners opposed the application on various grounds. The main contention was that the land sought to be pre‑empted was an under‑raiyati land, and as such, it could not be the subject of pre‑emption under section 26‑F of the Bengal Tenancy Act.

3. The learned Munsif allowed the application for pre emption holding that although in the C. S. record of rights the tenancy was described as an under‑raiyati holding, the claim for pre‑emption could not be resisted, as the petitioners purchased the land as occupancy raiyati holding, and as there was nothing to show that opposite parties were aware that the land was under‑raiyati holding.

4. On appeal, the learned Subordinate Judge also held that the petitioners after purchasing the land as occupancy‑raiyati holding could not plead that it was an under‑raiyati holding as it was not shown that opposite parties had previous knowledge of the real character of the tenancy. It was further held by the learned Subordinate Judge that as from 14‑4‑56, all rent receiving interests vested in the Provincial Government, the under‑raiyati became occupancy‑raiyati holding by operation of law. The appeal was accordingly dismissed and the order passed by the trial Court allowing pre‑emption was armed.

5. It has been contended by Mr. T. H. Khan, the learned Advocate for the petitioners that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally and with material irregularity in approaching the case from a wrong stand point and in holding that the purchasers were bound by the description of the holding as given in the kabala, although there was no representation on the part of the petitioners that it ,was an occupancy raiyati holding.

6. Recital in a kabala cannot stop a purchaser under) section 115 of the Evidence Act from shoeing the real nature of the tenancy by giving other evidence. This view is supported by the case of Moulana Hafez Athar Ali and others v. Abdul Taher Bhuiyan and another (P L D 1961 Dacca 349). For the statement in the kabala that the land is occupancy raiyati holding, the petitioners are not estopped from showing the real nature of the tenancy. The question of estoppel can arise, when a person purchases a property describing as an occupancy holding and notice is given to the co sharer tenants under section 260 of the Bengal Tenancy Act, and on the faith of the representation contained in the notice, the co‑sharer tenants apply for pre‑emption under section 26‑F of the Bengal Tenancy Act. In the present case, no notice under section 260 of the Bengal Tenancy Act was given to the opposite parties.

7. The learned Subordinate Judge relying on the case of Sm. Malati Baia Deb Gupta v. Narendra Chandra Rhattacharjee and others (48 C W N 269} and on the case of Sankaracharya Mullick v. Sk. Sadanzani and others (49 C W N 480), held that the purchasers could not set up a different nature of tenancy in view of the recital in the kabala that the land was occupancy raiyati holding. But the facts of the above‑mentioned cases are distinguishable from the facts of the present case in those cases notices under section 26‑Cl of the Bengal Tenancy Act were given to the co‑sharer tenants.

8. The land has been recorded as korfa with right of occupancy in the C. S. khatian No. 154. The presumption of, correctness of the C. S. record of rights was not rebutted by the opposite‑parties. In the application for pre‑emption, it is admitted that the land was recorded in C. S. khatian No. 154. The pre emption is that the opposite‑parties had knowledge about the real nature of the tenancy.

9. Mr. Debesh Chandra Bhattacharjee, the learned Advocate for the opposite‑parties has contended in reply that although the recital itself in the kabala would not operate as an estoppel against the petitioners regarding the nature of the tenancy, the endorsement on the back of the kabala that it was admissible for registration under section 26‑C of the Bengal Tenancy Act and the fact that it was registered under this section, indicate that there was representation by the petitioners that the tenancy was t an occupancy‑raiyati holding. But there is nothing in the docu ment to show that it was presented for registration by any of the petitioners. So registration of the document would not amount to representation by the petitioners that the land was occupancy‑raiyati holding.

10. It has been next contended by the learned Advocate for the petitioners that as the relevant Chapters of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), (hereinafter referred to as the Act), terminating various classes of tenancies have not come into force in the area concerned that is, in the district of Mymensingh, the provisions of the petitioners. So registration of the Bengal Tenancy Act still prevail and that the under-raiyati still exists.

11. The learned Advocate for the opposite‑parties has contended in reply that in view of the notification under section 3 of the Act, all rent receiving interests have vested in the Pro vincial Government with effect from 14‑4‑56, and that there has ,Of been automatic elevation of the under‑raiyats to the position of the raiyats. In support of this contention, reference has been made to subsection (3) of section 4 of the Bengal Tenancy Act, where it has been stated that under‑raiyats are tenants holding immediately or mediately under‑raiyatis, and also to subsection (1) of section 22 of the same Act. Mr. Bhattacharjee has contended that as the raiyati interest recorded in the record‑of‑right vested in the Provincial Government with effect from 14‑4‑56, there cannot be existence of the under‑raiyati holding, and that it has come raiyati‑holding by operation of law. The learned Advocate has also referred to the case of Ram Charan Sutradhar and another v. Rabha Charan Das and others (A I R 1934 Cal. 852). In that case, it has been held that after the auction purchase of the raiyate by the landlord, the under‑raiyats cease to be under‑raiyats and they are automatically raised to the status of raiyats.

12. A statute is to be construed as whole and construction cannot be based upon only a part of it since one portion may be qualified by other portions. In Crawford's Construction of Statutes, 1940 Edition, the following observations appear at page 258: --‑

"Inasmuch as the language of a statute constitutes the depository or reservoir of the legislative intent, in order to ascertain or discover that intent, the statute must be considered as a whole, just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning. Consequently, effect and meaning must be given to every part of the statute which is being subjected to the process of construction to ever section, sentence, clause, phrase and word."

13. In order to ascertain whether from the words "all interests of the rent receivers in the estates, taluks, tenures holdings or tenancies specified in the notification . . . shall vest absolutely in the Provincial Government . . . . "used in subsection (4) (a) of section 3 of the Act, it would follow that the under‑raiyati has become raiyati, some other provisions of the Act are also to be examined. Chapter IV of the Act contains the provisions for preparation of the record‑of‑rights with a view to assessment of compensation regarding interests of all rent receivers liable to be acquired and also already acquired under Chapter II of the Act. Chapter V provides for preparation of compensation assessment rolls after preparation and final publica tion of the record‑of‑rights under Chapter IV. Chapter V‑A of the Act makes special provisions for preparation of compensation assessment‑rolls, in respect of properties acquired under Chapter II, by a notification in the official Gazette instead of proceeding under section 17 of the Act. Subsection (2) of section 46‑A of the Act provides that in settling fair and equitable rents of all tenants except tenure‑holders immediately subordinate to rent receiving interests, principles laid down in sections 24, 25, 26 and 28 appearing in Chapter IV of the Act are to be followed. Section 24 of the Act provides how fair and equitable rent is to be determined with regard to the land held by a raiyat or by an under‑raiyat in preparing or revising a record‑of‑rights. Subsection (1) of section 24 of the Act is as follows :‑

"In preparing or revising a record‑of‑rights under this Chapter, the Revenue Officer shall, subject to the provisions of subsections (2), (3) and (4), presume the rent, payable in respect of any land held by a raiyat or under‑raiyat in the area to which such record relates at the time of preparation or revision of such record, to be fair and equitable."

This provision to the effect that rent payable by a raiyat or ant under‑raiyat at the time of preparation or revision of the record of‑rights is to be presumed as fair and equitable, read with section 46‑A, indicates that an under‑raiyati holding would be in existence at the time of the preparation of the record‑of‑rights, which would be subsequent to the notification in April 1956.

14. Chapter IV of the East Bengal State Acquisition Rules, 1951 provides the particulars to be recorded in the record‑of rights prepared under section 17 of the Act. The relevant portion of Rule 18 of the East Bengal State Acquisition Rules, 1951 is as follows :‑

"Where an order is made under section 17 for the preparation or revision of a record‑of‑rights, the particulars, to be recorded shall include, either without or in addition to other particulars, some or all of the following, namely :‑‑

(a) the name, father's name and address of each tenant or occupant;

(b) the classes to which each such tenant or occupant belongs, that is to say, whether he is a proprietor, tenure‑holder, raiyat holding at fixed rates, settled raiyat, occupancy‑raiyat, non -occupancy raiyat, under‑raiyat with or raiyat, or without a right of occupancy, or a non‑agricultural tenant, and if he is a tenure holder, whether he is a permanent tenure‑holder or not, and whether his rent is liable to be enhancement during the continuance of his tenure . . "

Rule 48 (3) of the East Bengal State Acquisition Rules, 1951 provides that the Revenue Officer is to prepare the compensation, assessment roll on the basis of the record‑of‑rights finally published or deemed to have finally published under Chapter IV of the Act. Rule 61 speaks of assignment of touzi number under section 46 (1). Rule 61 runs as follows :‑

"After the final publication of the compensation assessment roll, the Collector shall assign a touzi number to all the lands under one Tahsil and inform the Revenue Officer accordingly. The Revenue Officer shall, thereafter, re‑arrange the kbatians under that touzi number by eliminating there from the entire chain of interests of rent‑receivers and showing therein only the tenants who will come directly under the Provincial Gov ernment."

It will thus appear that the different classes of tenancies do not cease to exist with publication of the notification under section 3 of the Act. The entire chain of interests of rent receivers will be eliminated only after the publication of the compensation assessment‑roll.

15. Subsection (1) of section 81 of the Act provides that from the date on which Chapter XII comes into force there shall be only one class of tenants, namely, raiyats.

16. It is thus apparent that the different classes of tenancies have not ceased to exist with the notification under section 3 of the Act and that the under‑raiyati still subsists. A similar view has been taken in an unreported case (Civil Revision Cases Nos. 1129 and 1130 of 1960) of this Court decided on the 5th December, 1961. In that case also the question raised was whether the status of the tenancy covered by the kabalas under pre‑emption was one of occupancy raiyati right or of under raiyati rights. It has been held that as the relevant Chapter of the Act has not come into operation in the area concerned, the Bengal Tenancy Act with all its incidents rules the tenancy concerned. There is no dispute that the relevant Chapters IV, V, V‑A and X11 of the Act have not yet come into operation in the district of Mymensingh.

17. The learned Subordinate Judge in the exercise of his jurisdiction acted illegally in holding that the under‑raiyati become raiyati holding, and in allowing the application for pre‑emption under section 26‑F of the Bengal Tenancy Act.

18. In the result the rule is made absolute. The orders passed by the Courts below are set aside and the miscellaneous case for pre‑emption is dismissed. The petitioners will get costs throughout.

S. B./A. H.

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