SK ABDUL SOVAN Vs. SK ABDUL MALEK

JUDGEMENT

(1.) THE petitioner in this Rule filed an application under section 8 of the West Bengal Land- Reforms Act 1955 before the 2nd Court of Learned Munsif at Tamluk, Midnapore being Misc. Case No. 47 of 1978 against the opposite party No. 1, seeking to pre-empt. 2 decimals of land in R. S. Plot No. 391/629 claiming to be a co-sharer in respect of the said plot and also on the ground of vicinage. The opposite party No. 1 contested the said case by filing written objection denying and disputing the claim of the petitioner and stated inter alia, therein that the application for pre-emption filed by the petitioner was not maintainable inasmuch as the disputed land being a "doba" did not come within the purview of the west Bengal Land Reforms Act, 1955. The learned Munsif, 2nd court at Tamluk, Midnapore by his order No. 52 dated 18/8/79 dismissed the said pre-emption application inter alia, upon a finding that the disputed land being "doba" was not agricultural in nature and therefore, no relief under sections 8 and 9 of the West Bengal Land Reforms Act, 1955 could be available to the petitioner. Against the said order, the petitioner' preferred an appeal being Misc. Appeal No. 166 of 1979 and the learned Additional District Judge, 5th Court, Midnapore by his order and judgment dated 5/3/82 dismissed the said appeal inter alia, upon a funding that "doba" meant small tank and therefore, it was not agricultural land. The learned judge in coming to his said finding relied upon the decisions reported in 1980 (1) C. L. J. 135 (Surendra Nath Jana vs. Abhimunya Jana and Ors.) and 76 CWN 367 (Benoy Krishna Saha vs. Revenue Officer, Malda, Gazol Camp and Ors ). The learned Judge, however, distinguished the decision reported in 86 C. W. N. 318 (Niranjan Das vs. Lakshmani Dasi), cited by the opposite party No. 1 on the facts of the case. Being aggrieved by the said order of the lower appellate court the petitioner has moved this Court under Article 227 of the Constitution of india and obtained the present Rule.

(2.) MR. Tobarak Ali, learned Advocate appearing on behalf of the petitioner, however, submitted before me that in the latest decision of this Court reported in 89 C. W. N. 1081 (Fazle hakani vs. Sk. Arshed Ali) Satish Chandra C. J. , has held relyinq upon the decision in Niranjan Das's case (supra) that "doba" does not come within mischief of the word "tank", as is apparent from the Wilson's Glossary, that doba means low or swampy or inundated land. Therefore, according to Mr. Tobarak Ali, Doba is law land and is never a tank which can be stated to be excluded from the word "land" as defined in section 2 (7) of the West Bengal Land Reforms Act and relying upon the aforesaid decisions in Fuzle Hakani's case (supra)and Niranjan Das's case (supra) Mr. Tobarak Ali submitted that the petitioner's application under section 8 of the West bengal Land Reforms Act, 1955 was quite maintainable in law and hence both the courts below wrongly exercised their jurisdiction in dismissing wrongly exercised their jurisdiction in dismissing the pre-emption application of the petitioner.

(3.) MR. Saiful Islam, learned Advocate appearing on behalf of the opposite party No. 1, however, relying upon the decision in Surendra Nath Jana's case (supra) submitted that "doba" cannot be held to be agricultural land and it should be held to be a tank in view of the decision in Surendra Nath Jana's case (supra ). Mr. Islam also relied upon the decision in Benoy kr. Saha's case (supra) in support of his contention.