Basanti Rani Bhowmick vs Gopendra Mohan Nath and Others

B.L. Hansaria, J.—A decree in Title Suit No, 233/58 is still awaiting its execution. The execution case was filed in 1972 whereupon a plea was taken that in view of Section 53(d) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, for short the Act, the Appellant has to be given an option to purchase the had in question. Both the Courts below have rejected the contention on the ground that the provisions of the Act have no application and as such Section 53(d) cannot assist the Appellant.

A reference to Section 53 shows that it is relatable to ejectment from a "holding". The term "holding" has been defined in Section 3(4) meaning parcel or parcels of land. The term "land" means u/s 3(6) "agricultural land". As per Section 3(1) "agriculture" includes horticulture, pisciculture and other allied agricultural pursuits. The case of the Appellant is that different kinds of fruit trees had been planted in the land and so it has to be regarded as horticultural land. Though this contention has been rejected, Shri Sen refers to a document filed before this Court which is a copy of sale deed by which the Appellant bad purchased the land in question from the admitted tenants. Though no formal application was filed under Order 41 Rule 47 to take note of this document, we have nonetheless noticed its contents. This document does not leave anything to doubt that the purchase was of a residential house along with pond, ghat, latrine, fencings, and permanent plantations. Shri Sen relies on the reference to "permanent plantations" in the deed and contends that because of this it should be held that the land was put to horticultural use. The dominant them of the deed undoubtedly is sale of residential house, as it is very clearly stated in it that vendor No. 1 after taking settlement of the land had constructed a residential house thereon and had begun to reside therein, which was subsequently sold to vendor No. 2, whereby both became title holders in the entire houses end other constructions. It is further stated that the two vendors have sold the entire residence with all the rights and interests at the consideration mentioned in the document. Just because there was some plantation on the land, it cannot he held that the land was horticulture. This apart, the definition of "agriculture" in Section 3(1) would include horticulture if it was taken as a pursuit. To this we do not find anything on record.

This being the position, it cannot be held that the Appellant was entitled to the option of which reference has been made in Section 53(d) of the Act. We, therefore, affirm she findings of the Court below and dismiss the appeal.