The distinction between a 'doba' and a 'tank'

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DIVISION BENCH

( Before : Sujata V. Manohar, J; M. M. Punchhi, J )

S.K. ARSED ALI AND ANOTHER — Appellant

Vs.

S.K. FAZLE HAKANI — Respondent

Civil Appeal No’s. 5457-57A of 1985

Decided on : 20-11-1996

West Bengal Land Reforms Act, 1955 – Section 2(7)

Counsel for Appearing Parties

Aruna Banerjee, Raja Chatterjee and G.S. Chatterjee, for the Appellant;

ORDER

1. The respondent filed a petition u/s 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 land in two plots in favour of the appellant. The appellants resisted the respondent’s claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. for pre-emption 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 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 preemptor 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 upset it. To adjudge the correctness of the view of the High Court are the present appeals at the instance of the vendees.

2. 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 preemptor 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 that court in Niranjan Das Versus Lakshmi Mani Dasi, 1986 Cal W N 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 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 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 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 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 claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. 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 judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) and order of the High Court and order restoration of the judgment and decrees of the Courts below but without any order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..