An application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1956, is not maintainable when the entire holding is transferred.

( 1 ) THE petitioner-appellant filed an application for pre-emption. The sllegation is that the petitioner is a co-sharer. The land appertaining to the Plot No. 3310 measuring. 74 cents constitutes a holding. Satish Chandra Pramanick was the owner of another holding having an area of. 74 decimals. Satish Chandra Pramanick sold his property to one Lutfar Rahaman on 5-8-1970 for Rs. 1,500/ -. There was an agreement for reconveyance of the property. The right of reconveyance was transferred to the opposite party, who instituted a suit against Lutfar Rahaman for specific performance of contract and he obtained a decree. The petitioner, had no knowledge of the transfer. On 22-9-1972, he became aware of such transfer, He filed an application for pre-emption on the footing that he was a co-sharer. Subsequently, he made a prayer for preemption on the ground of vicinage. That prayer was turned down and hence, that application was not proceeded with and it was dismissed for default. Thereafter he again applied for pre-emption according to the provisions of Section 8 of the West Bengal Land Reforms Act X of 1956 on the ground of vicinage. He also put in an application under Section 5 of Limitation Act for condonation of delay,

( 2 ) THE opposite party filed an objection.

( 3 ) THE learned Munsif allowed the prayer for pre-emption,

( 4 ) AN appeal was preferred by the opposite party and the same was allowed on the only ground that the entire holding had been transferred. Since a portion of the holding was not transferred, the application for preemption was not maintainable. The learned Additional District Judge dismissed the application for pre-emption. Hence this revisional application by the petitioner.

( 5 ) MR. M. N. Ghosh has contended on behalf of the petitioner that the application under Section 5 of the Limitation Act was rightly filed because in the previous application for pre-emption, he made an attempt to ask for pre-emption on the ground that he was the owner of the contiguous holding. That prayer was turned down by the Court and hence, that application, for pre-emption was dismissed on non-prosecution. Thus, there is sufficient ground for filing such second application for pre-emption. The learned Additional District Judge did not deal with the question of condoning the delay under Section 5 of the Limitation Act. The wordings of Section 8 (1) of the Act ". . . . . or any raiyat possessing land adjoining such holding. . . . . " clearly show that when a pre-emption is asked for on the ground of vicinage, it is not necessary that there was a transfer of only a portion or share of the holding. Even if the entire holding is transferred and the petitioner happens to be the owner of the contiguous holding, he has a right to ask for preemption. It has. thus, been contended that this revisional application should be allowed. If the Court thinks fit, the matter may be remitted to the Additional District Judge for deciding the merits of the "application under Section 5 of the Limitation Act.

( 6 ) THE learned Advocate, appearing on behalf of the opposite party, has referred to the decision of Krishnapada v. Usha Rani in (1974) 78 Cal WN 779 and contended that in view of that decision, an application under Section 8 of the Act by the owner of the contiguous land is not maintainable, when the entire land is transferred. The question of limitation stares the petitioner in the face because the petitioner's version is that he came to know of the proceedings on the 22nd Sept. , 1972, whereas the present prayer for preemption was made in Jan. , 1976. He has also referred to the Bench decision of Ashalata v. Gopal Chandra in (1975) 1 Cal LJ 494 to show that when an application for pre-emption is filed by a contiguous tenant, the period of limitation is only four months. Moreover, the previous case for pre-emption was dismissed. Hence, in view of the provisions of Section 11 of the Civil P. C. , the application is barred b