1. The petitioner in this Rule filed an application under S. 8 of the West Bengal Land Reforms Act 1955 before the 2nd Court of Learned Munsif at Tamluk, Midnipore being Misc. Case No. 37 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 per-emption application inter alia, upon a finding that the disputed land being “doba” was not agricultural in nature and therefore, no relief under Ss. 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 Disirict Judge, 5th Court, Midnapore by his order and judgment dated 5.3.82 dismissed the said Appeal inter alia, upon a finding 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) CLJ 135 (Surendra Nath Jana v. Abhimunya Jana) and 76 CWN 367 (Benoy Krishna Saha v. Revenue Officer, Malda, Gazol Camp). The learned Judge, however, distinguished the decision reported in 86 CWN 318 (Niranjan Das v. 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 CWN 1081 (Fazle Hakani v. Sk. Arsed Ali) Satish Chandra C.J, has held, relying upon the decision in Niranjan Das's case (supra) that “doba” does not came with mischief of the word “tank”, as is apparent from the Wilson's Glossary that doba means low or swampy or inundated land. Therefore, according the Mr. Tobarak Ali, doba is low land and is never a tank which can be stated to be excluded from the word “land” as defined in S. 2(7) of the West Bengal Land Reforms Act and relying upon the aforesaid decision in Fuzle Hakam's case (supra) and Niranjan Das's case (supra) Mr. Tobarak Ali submitted that the petitioner's application under S. 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 the pre-emption application of the petitioner.
3. Mr. Saifulla 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 “daba” cannot be held to be agricultural land and it should be held to be a tank in view of the decision in Sudendra Nath Jana's case (supra). Mr. Islam also relied upon the decision in Benoy Kr. Saha's case (supra) in support of his contention.
4. Having heard the learned Advocates for both the parties and going through the abovementioned decisions I am, however, of the view that the decision in Benoy Kr. Saha's case (supra) does not apply to the facts of the present case at all and it is distinguishable on facts no doubt, Arun Kumar Janah, J. in the Case of Surendra Nath Jana's case (supra) had accepted the contention of Mr. Swadesh Bhusan Bhuniya, learned Advocate appearing on behalf of the opposite party in the said case that “doba” was not agricultural land but it appears from the said decision of Arun Kumar Janah, J. that no reasoning was given for accepting the said contention of Mr. Bhuniya. It was merely stated therein that the contentions urged on behalf of the opposes parties by Mr. Bhuniya had considerable force and must be given effect to, Since there are two decisions viz, Niranjan Das's and Fuzle Hakam's case (supra) directly on the point that “doba” does not come within the mischief of the word “tank”, I am to hold that “doba” is not a tank. However, in the aforesaid decisions in Niranjan Das's case (supra) and Fuzle Hakam's case (supra) it has been merely stated that since “doba” does not come within the mischief of the tank, S. 8 of the West Bengal Land Reforms Act, 1955 could be made applicable in case of pre-emption in respect of the “doba” but in none of the said decisions it has been held whether “doba” which is not a tank, automatically would be held to be an agricultural land. “Land” has been defined in S. 2(7) of the West Bengal Land Reforms Act 1955 as agricultural land other than land comprised in Tea Garden which is retained under sub-s. (3) of S. 6 of the West Bengal Estates. Acquisition Act ??? and included homestead but does not include tank. So even if “daba” cannot be hold to be a tank, a “daba” automatically would not become agricultural land to come within the meaning of land as defined in the West Bengal Land Reforms Act, 1955, for in order to hold that a “doba” is an “agricultural land” the user of the doba has to be considered. It has been held by Mookerjee J. in the case of Mishri Shaw v. Belur Nikuniyamosee Gadar Institution, reported in 1975 (1) CLJ 532 that before the commenecment of the West Bengal Estates Acquisition Act it was the settled law that if the ??? loase was governed by the provisions of the Bengal Tenancy Act, then it must be held that all sub-leases of portions of the properties included in the said main lease would be deemed to be agricultural. A long series of decisions re-affirmed the principle that the nature of the original tenancy and not the character of the paicel included in the sub-tenancy would determine whether the sub-tenancy was to be governed by the Bengal Tenancy Act or by the Teansfor of Property Act. The earliest decision on the point was Babu Ram Roy v. Mohendra ??? Das reported in 8 CWN 454. The Supreme Court in Nirshi Dhobin v. Dr. Sudhir Kumar Muokherjee, reported in AIR 1969 SC 864, declined to re-open the said question because the above rule laid down in Babu Rim Roy v. Moheadra Nath Das's case (supra) had became stare decisis. But the provisions of the West Bengal Estates Acquisition Act have brought about a material change in the legal position. Clause(b) and (i) of S. 2 of the Act defined the expressions “agricultural land” and “non-agricultural land” solely with reference to the user of the particular land.
5. In a recent Division Bench judgment of this Court reported in 89 CWN 1057 (Suhhamar Bai v. Nemai Mondal) Mookerjee and Shamsuddin Ahmed JJ., have also relierated the same principle of law referring to the provisions of the West Bengal Estates Acquisition Act, 1953 in case of a lease of tank and its bank and have held that after vesting the character of the tenancies created by operation of the provisions of S. 6(1) of the West Bengal Estates Acquisition Act read with Rule 4 of the West Bengal Estates Acquisition Rules would depend upon the nature of user of particular land at the date of vesting. When immediately before the date of vesting a land was being ordinarily used for non-agricultural purposes, an intermediary including raiyat or under raiyat upon retaining the same would be deemed to be a non-agricultural tenant. Similarly, when an intermediary including raiyat or under raiyat retained the land which was being ordinarily used for purposes of agricultural, he would be deemed to be a raiyat in respect of the said land.
6. In the Division Bench judgment of the Court reported in 87 CWN 543 (Badal Chandra Das v. Kinkar Das) Anil K. Sen and S.N Sanyal, JJ. held inter alia, that under the provisions of the West Bengal Estates Acquisition Act, whether a particular land is agricultural or non-agricultural would no longer depend upon the purpose of the original settlement; it would depend, on the other hand, on how it was being used on the date of vesting.
7. On the provisions of Ss. 5 and 6 of the said Act read with Rule 4 thereof, land which was being used for non-agricultural purpose on the date of vesting would constitute a non-agricultural tenancy and it would cease to bean agricultural tenancy notwithstanding the fact that the original purpose of such settlement was agricultural. Therefore, it was necessary to determine how was the land being used on the date of vesting in order to determine the true character of the holding. An entry in the record-of-rights must be presumed to be correct but that presumption does not lead to the conclusion that even after the date of vesting it continues to remain an agricultural holding. It should be remembered that the R.S record-of-rights were prepared with reference to the state of affairs existing on the date of vesting and not incorporating the effect of vesting. But the right of pre eruption must be determined with the state of affairs standing on the date of transfer. The entry in the record of-rights does not change the position in law and even if such an entry be presumed to be correct that does not lead to the conclusion that on the date of transfer of the holding or a part thereof after vesting, the nature of the holding continued to remain as was entered in the record-of-rights.
8. In the above view of the matter I therefore hold that even if “doba” cannot be held to be a “tank” that does not mean that a “doba” automatically becomes “agricultural land” within the meaning of ‘land’ as defined in S. 2(7) of the West Bengal Land Reforms Act, 1955. To hold that a “doba” is an agricultural land, the actual user of the doba after the date of vesting has got to be looked into.
9. Therefore in order to pass an order of pre-emption in respect of the transfer of a doba or a part thereof, under S. 8 of the West Bengal Land Reforms Act, 1955, the court has got to look into and/or consider the actual user of such doba till the date of the disputed transfer, in order to ascertain whether the said doba is an agricultural land.
10. The impugned orders accordingly are set aside and I remand the case back to the learned Munsif to decide the case on merits and also to decide the maintainability of the pre-emption proceeding filed by the petitioner as expeditiously as possible after considering the actual user of the disputed “doba” till the date of transfer in question, after giving the parties opportunity to adduce evidence. If after considering such user of the doba the learned Munsif finds that the disputed doba cannot be held to be an agricultural land, the learned. Munsif will allow the petitioner to amend his preemption application accordingly if the petitioner prays for such amendment. The Rule is thus disposed of accordingly without any order as to costs. Let the records be sent down as quickly as possible.
Order set aside; case remanded, direction given.