KALIDASI NATH Vs. OBEDULLA SHEIKH

JUDGEMENT

(1.) IN this rule the petitioner challenges an order passed by the learned Additional District Judge in an appeal against an order passed by the Revenue Officer under section 8 of the W. B. Land Reforms Act. The application under section 8 of the W. B. Land Reforms Act was made by the petitioner herein for pre-emption of the suit land as a co-sharer to the holding by observing the formalities required for the purpose. The opposite party's main objection was that he was not a co-sharer. The Revenue Officer held that the opposite party is a co-sharer and allowed the application whereupon the opposite party filed an appeal before the Additional District Judge The Additional District Judge allowed the appeal and held that the opposite party h not a co-sharer in view of the Full Bench's decision reported in A. I. R. 1972 Cal. , 502 (Madan Mohan vs. Sishu Bala ). Being aggrieved by the said appellate order the petitioner applicant before the Court bellow for pre-emption moved this Court under section 115 of the Code of Civil Procedure.

(2.) MR. Das Gupta on behalf of the petitioner contended firstly that the District Judge hearing the appeal against the order passed under section 8 of the Land Reforms Act is not an ordinary Civil Court but a Special Court and therefore the District Judge has no power to transfer the appeal to the Additional District Judge for disposal. Mr. Das Gupta relied upon the case reported in A. I. R. 1958 Call, 538 (Harendranath v. Daulatmani) for the purpose. Secondly Mr. Das Gupta contended that in view of the different definition of holding in the West Bengal Land Reforms Act the judgment relied upon by the learned appellate Court, namely, A. I. R. 1972 Cal 502 (Madan Mohan vs. Sishu Bala) has no application and therefore the petitioner is a co-sharer in respect of the holding and he has right to pre-empt the transfer, made.

(3.) MR. Roy on behalf of the opposite party however contended that this point is no longer open in view of the judgment of this Court reported in 81 C. W. N. 580 and the Full Bench judgment here in before stated. In our opinion, the District Judge as mentioned in the statute under section 9 is a District Judge of the ordinary civil Court. In fact this question was agitated before the Division Bench of this Court in the case reported in 81 C. W. N. , 580. Their Lordships of the Division Bench followed the Supreme Court decision reported in A. I. R. 1977 S. C. , 282 (Kerala S. E. Board vs. T. P. Kunhaliumma) The Supreme Court while deciding the question under section 16 (4) of the Telegraph Act held at paragraph 20 as follows: -