The second proviso to Section 8(1) of the West Bengal Land Reforms Act, 1955, which gives preference to a raiyat possessing land adjoining the holding concerned and having the longest common boundary with the land transferred, is not restricted to cases where both the pre-emptor and the pre-emptee are pre-emptors. It applies even when the pre-emptee is also the transferee.

ORDER :- This Rule is directed against order dated April 5, 1976 of the learned Additional District Judge, Birbhum whereby the learned District Judge dismissed the appeal preferred from order dated May 21, 1974 made by the learned Munsif, at Dubrajpur,

2. The present petitioner made before the said learned Munsif an application under Section 8 of the West Bengal Land Reforms Act, 1955 with a view to enforcing his right of pre-emption and the case made out in the said application under Section 8 is that the opposite party No. 2. Bhanubala Dassi by a registered Kobala dated July 20, 1973, (corresponding to 4th Shravan 1380 B.S.) transferred to O.P. No. 1 for a consideration of Rs. 1499/- plots Nos. 2055, 2048 and 2076 under Khatian No. 109 within Mouza Simlakuri under P.S. Dubrajpur in the district of Birbhum, that the petitioner is the owner of Plot No. 2109 which is adjacent to said Plot No. 2055 having the longest common boundary with the land transferred, that the petitioner is accordingly entitled to pre-empt the land transferred and that he has deposited the entire consideration money together with a further sum of Rs. 150/-representing 10% of the consideration money.

3. The opposite party No. 1 contested the case by filing a written statement wherein he denied the material allegations contained in the said application under Section 8. His specific case is that as he purchased three plots of land and the petitioner asked for pre-emption in respect of only one of those plots the case ought to fail, that as the total consideration of Rs. 1499/- was paid in respect of the three plots the pre-emption case ought to fail, that Plot No. 2109 is not contiguous to Plot No. 2055, that the petitioner is not the owner of adjoining land having the longest common boundary with the land transferred, that the petitioner is in possession of lands in excess of the ceiling prescribed by law and cannot as such ask for pre-emption, that the opposite party No. 1 is the owner of Plots Nos. 2052 and 2056 which are lands contiguous to Plot No. 2055 and that the right of preemption conferred by said Section 8 on the ground of vicinage imposes an unreasonable restriction on the right to hold and dispose of property guaranteed by Article 19(1)(f) of the Constitution.

4. The learned Munsif dismissed the Misc. case arising out of the said application under Section 8 on the ground that Section 8 of the said Act imposes an unreasonable restriction on the right to hold and dispose of property guaranteed by Article 19(1)(f) of the Constitution.

5. The appeal that was preferred by the petitioner from the decision of the learned Munsif was also dismissed by the Court of Appeal below though on grounds different from those which weighed with the learned Munsif. The Court of appeal below relying on the decision in Narayan Chandra Ghosh v. Sanat Kumar, (1975) (2) Cal LJ 79 : AIR 1975 Cal 290 according to which the provisions of Section 8 of the West Bengal Land Reforms Act were not violative of the constitutional rights guaranteed by Article 19(1)(f) of the Constitution, held that the said application under Section 8 was maintainable. It, however, held that as the opposite party No. 1 herein also had land adjoining the lands sought to be pre-empted, the present application under Section 8 would not lie. In this view of the matter the Court of appeal below dismissed the appeal. Hence the present application under Article 227 of the Constitution.

6. The learned lawyer for the petitioner contended that the Court of appeal below was wrong in holding that as the opposite party No. 1 also had land adjoining the lands sought to be pre-empted, an application under Section 8 of the Land Reforms Act could not lie. Before I discuss the question raised on behalf of the petitioner and those raised on behalf of the Opposite Party No. 1, I consider it proper to point out that both the Courts below as also the learned lawyers representing the parties lost sight of one very