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PETITIONER: S.K. ARSED ALI & ANR.

       Vs.

RESPONDENT: S.K. FAZLE HAKANI

DATE OF JUDGMENT:       20/11/1996

BENCH: M. M. PUNOHHI, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                            ORDER      The respondent  filed a  petition under  Section of the West Bengal  Land Reforms  Act for  preemption in respect of two sale  deeds executed  by the  vendors on  22nd and  23rd February 1977  transferring 1.70  acres of land in two plots in favour  of the  appellant. The  appellants  resisted  the respondent’s claim  for preemption  on the  ground that  the respondent need  to have  been a  co-sharer in the land sold and since he claims to have purchased sometime in the past a portion of  a plot, which was purchased sometime in the past a portion  of a  plot, which  was described  in the  revenue records as  a ‘tank’,  it was  not ‘land’  as defined in the Land Reforms  Act and  therefore he was not a co-sharer. The trial court  found  that  the  pre-emptor  had  purchased  a portion of  a plot which was a ‘doba’ and since ‘doba’ was a tank, it  was outside the definition of land provided in the Land Reforms  Act. The  appellate court  concurred with that view. The  High Court,  however, in second appeal up set it. To adjudge the correctness of the View of the High Court are the present appeals at the instance of the vendees.      Miss Aruna  Banerjee, learned counsel appearing for the appellants has  placed before  us the English translation of the deed  of sale  in favour of the respondent together with the copy  of the  original deed  in Bengali.  There the land sold to  the pre-emptor  has been  described as "Matsyasheho Pushkarini" which in English means a tank/pond full of fish. The learned  Single Judge  of the High Court in relying upon an earlier decision of the that Court in Niranjan Das Versus Lakshmi Mani  Dasi, 1986  Calcutta Weekly Note 318 has taken the view  that ‘doba’  does not  come within the mischief of the word ‘tank’ as is apparent from the Wilson’s Glossary of words. We  have caused a copy thereof to be placed before us and we  find therefrom that the word ‘doba’ in Bengali means immersed, low  and swampy  or inundated  land. The  depth of such land  perhaps comes  to cause  a distinction  between a ‘doba’ and  a ‘tank’.  Apparently the  High Court was of the View that  if surface  waters be shallow, then the land even though inundated  will retain  the character  of  the  land, bearing at the back of its mind that paddy crop can be grown in puddled  lands. correspondingly,  if the  depth  is  more

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which prevents  the land  being put to agricultural use then it would  be ‘tank’ for the purposes of the West Bengal Land Refors Act  and in  particular Section  2(7) thereof,  which defines ‘land’  to  be  agricultural  land,  tank  being  an exception there  to. Now here the land has been described as ‘Matsyasheo Pushkarini’  which apparently  would mean a pond with sufficient water abounding in fish and seemingly it was so  described   in  the  deed  of  sale  in  favour  of  the respondent. Thus  the area  owned by  the respondent did not come within the ambit of the word ‘land’ for the purposes of Section 2(7)  of the  West Bengal  Land Reforms Act 1995 and therefore the  respondent was  dis-entitled to claim himself as co-sharer  in the  land in  order to maintain a claim for pre-emption. In  our view  the High  Court was  in error  in proceeding on  the basis  that the  land  purchased  by  the respondent was  put to  agricultural use in the manner which entitled the  respondent to  a  decree  in  his  favour.  We therefore, upset  the judgment  and order  of the High Court and order  restoration of the judgment and and decres of the Courts below but without any order as to costs.