G.N.Ray,, J.:-
(1) This rule is directed against the order dated 4ui january. , ism, passed pre - emption appeal no,. 1 to 1969 by the learned munsif, dantan, reversing the order passia by the revenue officer, contai, in pre - emption case no. 38 of 1966. The petitioner in the mstani rule is the pre - emptee and the opposite party made an application for pre - emption against the petitioner on the ground of vichange under section 8 of the west bengal land reforms act. It has been held by the learned munsif in disposing of the said pre - emptiom appeal no. 1 of 1969 that the applicant, held the contiguous plots of lands in respect of the lands sought to be pre - empted excepting four plots, namely; plots nos. 565, 665, 662 (3330 and 661. The said four plots were not contiguous plots and pre - emption was not allowed in respect of those lands but in respect of other lands the application for pre - emption was allowed.
(2) Mr. Mitter, learned advocate appearing for me petitioner challagenged this appeareorder or pre - emption on four grounds. Mr. Mitter comenue that the appreciate court having nela that the tana covered by the documents of transfer were not similar and the price of such lands also vanea, the learned munsit erred in arbitrarally fixing the valuation by taking average price of the area of the lands in question from the total vaiuation given in die document of transfer.
(3) Mr. Mitter contended that it was the duty of learned munsu precisely determine are valuation of the in respect of when the order of pre emption was to be passed. It appears to us that in the instants case, the plots of lands in respect of which the application for pre - emption was not allowed were more valuable lands being bamboo grove and betel grove and as such by taking an average mean of in the total price hxea for an the lands in the documents of transfer, the present petitioner has not suffered in any was there is no reason to interfere with the order of the learned munsif on that score. But we agree on principle that the court should deremine the valuation of land in respect of which then order for pre - emtion should be passed.
(4) Mr. Mitter next contended suit the anpugned order must aisu as partial pre - emption is not permissible in law. Mr. Mitter contended that as pre - emption was allowed only in respect of some plots executing the afore said four plots, the learned munsif was not justified in passing the order of pre - emption m respect of a portion of the holding. In such circumstances, according to mr. Mitter, pre - emption should have been allowed in respect of the entirety of the lands. It may be pointed out at this stage that by allowing partial pre - emption, mr. Mitter's client has not suffered in any way. On the contrary, such order for partial pre - emption excluding the aforesaid four plots has neared to the benefit of the petitioner because no order for preemption has been passed against him in respect of the said four plots. But apart from this, it appears to us that on the ground of vicinage order of preemption should be made in respect of those plots which really are contiguous to the plots of the applicant. It is quite evident that the concept of vicinage is of recent origin and in the bengal tenancy act such concept was not introduced. Mr. Mitter relied on two decisions of this court reported in 42 c. W. N. P. 288 surabala v. Rukmini and 38 c. W. N. P. 654 beharilal v. Pulinbehari for the aforesaid proposition that partial pre - emption is not permissible in law. We may point out that such decisions can be clearly distinguished from the facts and circumstances of the instant case and apart from anything else the question of vicinage had not been considered in those decisions inasmuch as the pre - emption on the ground of vicinage was not known in the bengal tenancy act.
(5) Mr. Mitter next contended that the application for pre - emption is barred by limitation. In support of this contention mr. Mitter pointed out that although the application for pre - emption was made within four months from the date of registration of the document in question but the execution of the said document having been made earlier, the date of transfer should be deemed to have been made from the date of execution in view of the provisions of section 47 of the indian registration act. We are unable to accept this contention of mr. Mitter.
(6) Mr. Suprakash banerjee, the learned advocate appears for the state of west bengal pursuant to a notice given on the learned advocate general of west bengal because a challenge was thrown as to the vires of section 8 of the west bengal land reforms act in so far as pre - emption on the ground of vicinage was concerned. Mr. Banerjee has rightly pointed out that the limitation will run from the date of the registration of the document and not from the date of execution of the same and such contention was also considered by this court in 60 c. W. N. P. 57 gostabehari v. Rajabala and it was held in the said decision that limitation will run from the date of registration and not from the date of execution of the document. It may also be pointed out in this connection that if the proposition that limitation will run from the date of execution of a document and not from its registration is accepted to be correct, the right of pre - emption may be easily defeated by a purchaser by intentionally presenting his document of transfer for registration after expiry of four months from the date of execution of the same.
(7) Mr. Mitter lastly contended that the application for pre - emption is also not maintainable because the lands sought to be pre - empted do not form any holding within the definition of the "holding" under the west bengal land reforms act. In this connection mr. Mitter refers to subsection (6) of section 3 of the west that holding means land or lands held by a raiyat and treated as a unit for assessment or revenue. Mr. Mitter contended that for becoming a 'holding' the land should not only be held by a raiyat but the land must be treated as a separate that for assessment of revenue. This contention of mr. Mitter cannot be accepted because this point was not taken in the courts below and no evidence was led by mr. Mitter's client to show that the lands in question do not form any unit for assessment of revenue. As all the contentions of mr. Muter fail, this rule is discharged but we make no order as to costs.
(8) As stated earlier, a notice of the rule was served on the learned advocate general because a point was, taken in the rule that section 8 is ultra vires the constitution because the provision for pre - emption on the ground of vicinage was contrary to article, 14 of the constitution of india. But the said contention cannot be accepted inasmuch as it has already been held by this court in earlier decisions that the west bengal land reforms act having been included in the schedule 9 of the condition of india, the vires of section 8 of the west bengal land reforms act, cannot be challenged any further. Rule discharged
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