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PETITIONER: ABDULLA KABIR

       Vs.

RESPONDENT: MD. NASIRUDDIN

DATE OF JUDGMENT01/02/1989

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PANDIAN, S.R. (J)

CITATION:  1989 AIR  931            1989 SCR  (1) 396  1989 SCC  (2) 361        JT 1989 (1)   216  1989 SCALE  (1)207

ACT: West Bengal Land Reforms Act 1955 Sections 2(6), (7)3-A  and 8.     West  Bengal Non-Agricultural Tenancy Act  1949  Section 2(4)(a) and (24).     West  Bengal Estates Acquisition Act 1953 Section  2(g). Application  for pre-emption--Maintainability   or--’Holding of raiyat’-Homestead of agriculturist even though not stand- ing on agricultural land to be treated as agricultural land.

HEADNOTE:     An  application  for  pre-emption was  filed  under  the provisions of section 8 of the West Bengal Land Reforms Act, 1955  by the respondent 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.     The  land in question was owned by an agriculturist  and he  used  to keep his agricultural implements  in  the  said property.  He  also possessed other  agricultural  lands  as agriculturists  and in occupancy raiyati interest. The  suit 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 September 20,  1967 the  land was sold by a registered Kobala to 4 persons,  and on October 28, 1968 one of the 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  filed an  application  for  pre-emption under  section 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 proper- ty 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 copy of the sale deed was  absolutely false. 397     The Trial Court held that the respondent was a co-sharer and was entitled to pre-empt, the application of pre-emption was not barred by limitation as it was filed within a period

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of 3 years of the knowledge of the same as no notice of  the sale  was served on the respondent. The Trial Court  further held that the land was non-agricultural land and as such the application  for pre-emption under section 8 was  not  main- tainable. The miscellaneous case was accordingly dismissed.     The  respondent  filed  an appeal,  and  the  Additional District Judge reversed 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 the homestead land of an  agriculturist,  the application  for  pre-emption  under section  8 was maintainable. The appeal was allowed and  the judgment 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 amend- ment  claiming  alternative  relief  for  pre-emption  under section  24 of the West Bengal NonAgricultural Tenancy  Act, 1949.  The  High Court held that even if the land  was  non- agricultural  land, pre-emption could be granted under  sec- tion  24 of the W.B. Non-Agricultural Tenancy Act, but  dis- missed  the petition on the ground that there was no  juris- dictional  defect or error entitling the Court to  interfere in revision.     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 rightly 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 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,     HELD: 1. The application for pre-emption under section 8 of West Bengal Land Reforms Act was properly allowed by  the lower  appellate court and the said order was maintained  by High  Court. There is no infirmity in this finding, and  the same is upheld. [400G-H] 398     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 fail 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 Naskar and  Anr. v.  Golap  Gazi,  [1979] 83 C.W.N. 87 per  incuriam  &  over ruled. [404E-F]     3.  On a conspectus of the provisions contained in  sec- tion  2(8)  W.B.  Estates Acquisition  Act  1953  &  section 2(4)(a)  W.B. NonAgricultural Tenancy Act, 1974  it  follows that ’Homestead’ of an agriculturist even though the same is included  in the holding of the raiyat but not on the  agri- cultural  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]     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-agricul- tural land exceeding the ceiling limits, even assuming  that the land is non-agricultural land. But the land being  home-

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stead  of an agriculturist is agricultural land.  Therefore, the amended provision of section 3A of the West Bengal  Land Reforms  Act does not require consideration in this  matter. [406C-E]     Dwarka  Nath Prasad Atal v. Ram Rati Devi, [1980] 1  SCC 17  and Luigi Ambrosini, Ltd. v. Bakara Tinko  and  Another, A.I.R. 1929(PC) 306, distinguished.

JUDGMENT:     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 Shankar Ghosh and Rathin Das for the Appellant. D.P. Mukherjee, and G.S. 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 1/4th 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  ques- tion i.e. plot No. 115/852 measuring 0.3 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  R.S. operation also the said property was recorded in his name as ’Raiyat  Sthitiban’ and the classification of land  was  re- corded  as ’Bari’ i.e. 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 1/4th interest to the appellant, Abdulla Kabir by Kobala (Exh. l(b). 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

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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 i.e.: (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. l(b) and "Bari" in the R.S. Record of Right (Exh. 3(h)  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 R.S. 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  R.S. 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  C.R. 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. 1,000.  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

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             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 R.S. Record of rights i.e. 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. v. Golap Gazi, [1979] 83 CWN 87 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 R.S. 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  v. Ram Rati Devi, [1980] 1 SCC 17 and Luigi  Ambrosini Ltd. v. Bakare Tinko and Another, A.I.R. 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 1/4th 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 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  2(6) of the West Bengal Land Reforms Act,  1955

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defines holding as:               "holding"  means the land or lands held  by  a               raiyat and treated as a unit for assessment of               revenue."               Section 2(7) 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 R.S. record of rights. The  owner of  the said land Sarat Chandra Dutta is also recorded as  a raiyat  i.e. "raiyat sthitiban". In other words, it  is  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  respondentpetitioner supported  the  contention that "Sarat Chandra Dutta, the owner of plot No. 115/852 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 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 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 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 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 "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-

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cy  Act,  1949  amended by Act 8 of  1974.  Section  2(4)(a) 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 2(g) 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 i.e.  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-

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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. 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,  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 v. 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

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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. 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  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. N.V.K.                                          Appeal  dis- missed. 408