S.K. ARSED ALI AND ANR.versusS.K. FAZLE HAKANI

A                        S.K. ARSED ALI AND ANR.
                                       v.
                            S.K. FAZLE HAKANI

                            NOVEMBER 20, 1996

B         [M.M. PUNCHHI AND MRS. SUJATA V. MANOHAR, JJ.]

         Land Laws and Agricultural Tenancy :

         West Bengal Land Reforms Act, 1959:

c       Ss. 2(7) and 8-Pre-emption-Oivner ofa portion ofa plot described
  in revenue records as 'tank' filing petition uh 8 against the vendor of the
  part of the land-Purchaser of the adjacent land resisting the claim on the
  ground that 'tank' was outside the definition of/and-Held, 'tank' did not
  come within the ambit of the word 'land' for purpose ofs.2(7) and as such
D claim for pre-emption was not maintainable.

         Words and Phrases:

          'Matsyasheho Pushkarini' and 'doba '--Held, do not come within
E the ambit of 'land' for the purpose of s.2(7) of West Bengal land Reforms
    Act, 1959.

        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5457-
    57A of 1985.

F        From the Judgment and Order dated 5 .6.85 of the Calcutta High
    Court in C.R. Nos. 2017-18 of 1975.

         Ms. Aruna Banerjee and Raja Chatterjee for G.S. Chatterjee for the
    Appellants.

G
         The following Order of the Court was delivered :

          The respondent filed a petition under Section 8 of the West Bengal
    Land Reforms Act for pre-emption in respect of two sale deeds executed
    by the vendors on 22nd and 23rd February 1977 transferring 1.79 acres of
H   land in two plots in favour of the appellant. The appellants resisted the
                                        924
               S.K. ARSED ALI v. S.K. FAZLE HAKANI                     925


respondent's claim for pre-emption on the ground that the respondent           A
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 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    B
in the Land Reforms Act. The appellate court concurred with that view.
The High Court, however in second appeal upset 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        C
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 1elying upon an earlier decision of that
court in Niranjan Das Versus Lakshmi Mani Dasi, 1986 Calcutta Weekly           D
Note 318 has taken the view that 'doba' does not come with in 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    E
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, ifthe depth is more
which prevents the land being put to agricultural use then it would be
'tank' for the purposes of the West Bengal Land Reforms Act and in             F
particular Section 2(7) thereof, which defines 'land' to be agricultural
land, tank being an exception thereto. 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           G
respondent did not come within the ambit of the word 'land' forthe 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       H
   926                     SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.


A 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 decrees
   of the Courts below but without any order as to costs.

    R.P.                                               Appeals disposed of.




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