FUZLE HAKANI Vs. SK ARSED ALI

JUDGEMENT

(1.) THE petitioner filed an application for preemption under section 8 of the West bengal Land Reforms Act in respect of two sale deeds executed by the opposite parties on the 22nd and 23rd February, 1973 transferring 1. 79 acres in plots nos. 80 and 85. The opposite parties contested. Their plea was that the petitioner had purchased in 1952 a portion of plot no. 117 which was a. tank and hence it was not land as defined in the Land Re-forms Act and so he was not a co -sharer. The application for pre-emption was not maintainable. The trial Court found that the pre emptor had purchased in 1962. 07 acre of plot no. 117 which was a doba. Doba is tank. Tank was outside the definition of land in the Land Reforms act. Therefore the pre emptor was not a co-sharer of the holding. The application for pre-emption was dismissed. The pre emptor went up on appeal. The appellate Court held that doba was a tank. and so the pre emptor was not a co-sharer. If rejected the submission that doba was different from a tank. He held that both tank and doba are reserviors of water and so doba is not a land as defined. He also held that admittedly no notice was served on the pre emptor but since he was not a co-sharer, ha was not entitled to pre-empt. The appeal was dismissed.

(2.) AGGRIEVED, the pre empior has come to the Court in revision. The learned counsel for the petitioner, has invite |my attention to a decision in Niranjan pas vs. Lakshmi Mani Dasi, 86 CWN 318. In this case it was held that doba does not come within the mischief of the word 'tank' as is apparent from the Wilson's glossary that doba means low or swampy or inundated land. Therefore, in my opinion, the doba is low land But it is never a tank which can be said to be excluded from the word 'land' as defined in section 2 (7) of the West Bengal land reforms Act. This authority is on) all fours and supports the petitioner. In this view it has to be held that by virtue of the purchase of the doba, the petitioner purchased land as defined in the Land Reforms Act and became a co-sharer of the holding in which the doba, plot no. 117 was situate. Admittedly the holding was the same and a portion of which was transferred by the sale deed in question.

(3.) THE learned Counsel for the opposite party then submitted that the petition for pre-emption was barred by " time because it was not filed within three months as provided in section 8 of the Land Reforms Act. The period of three months commenced from the date of service of the notice on the pre emptor. In this case admittedly no notice was served on the pre emptor, As such the aforesaid period of limitation was not applicable. No other objection to the pre-emption application was taken in any of the two Courts below. It is hence unnecessary to send the case back,