JUDGMENT The judgment of the Court was as follows :–– This Rule issued upon an application under section 115 of the Code of Civil Procedure made by the petitioners whose application for pre-emption under section 8 of the West Bengal Land Reforms Act was rejected by the Revenue Officer and also by the learned Munsif to whom an appeal had been preferred. Petitioners claimed to pre-empt a transfer which purported to have been made by a document executed in the form of a gift. Petitioners contended that the transaction was one of sale for consideration and form but the document was purposefully made out as a deed of gift. The property that was the subject-matter of the transfer which was sought to be pre-empted is the two-third share of a Plot No. 422 in the khatian No. 1227/1 of mouza Amman. In the R.S. records that plot has been described as a tank. 2. The transfer was made by the opposite party No.4 in favour of the opposite party Nos. 1 to 3 by the document which is dated August 17, 1965. 3. Both the transferor and the transferee, i.e. the opposite party No.4 and the opposite party Nos. 1 to 3 opposed. Before the Revenue Officer the ground of objection was that as the transfer was by gift there can be no pre-emption under section 8 of the Land Reforms Act. The learned Revenue Officer noted that practically no other point of objection was raised before him. Regarding the objection the Revenue Officer held that in another case, i.e. Miscellaneous Case No. 66 of 1965 the Second Court of the Munsif held the document to be a deed of gift and that was upheld in Miscellaneous Appeal No. 19 of 1966 in the Court of the Subordinate Judge. It was brought to the notice of the Revenue Officer that the judgment in Miscellaneous Appeal No. 19 of 1966 had been moved against in the High Court by an application under section 115 of the Code of Civil Procedure. The Revenue Officer, however, duly on the ground that the transfer was by a document which was in its form a deed of gift, held obviously because of the provision of clause (b) of sub-section (2) of section 8 of the Land Reforms Act, that the application for pre-emption must fail and he disallowed the claim to pre-empt. 4. The Revenue Officer, however, duly on the ground that the transfer was by a document which was in its form a deed of gift, held obviously because of the provision of clause (b) of sub-section (2) of section 8 of the Land Reforms Act, that the application for pre-emption must fail and he disallowed the claim to pre-empt. 4. Against the order of the Revenue Officer the present petitioners preferred an appeal. The learned Munsif, who heard the appeal, in his judgment pointed out the Revenue Officer had not considered the real character of the impugned transfer but relied on the decision of the learned Mansif in Miscellaneous Case No. 66 of 1965 for holding that the transaction came under clause (b) of sub-section (2) of section 8. The learned Munsif has pointed out the decision on the question about the character of the transaction in the other case was in connection with a claim for pre-emption under section 24 of the West Bengal Non-Agricultural Tenancy Act in respect of other plots contained in the document of transfer. Because of the particular provisions of section 24 (1) of the Non-Agricultural Tenancy Act under which gifts of a qualified character, that is, gift in favour of certain relations of the donor would operate as a bar to pre-emption, the learned Munsif had held in that other case that pre-emption would lie under section 24(1) of the West Bengal Non-Agricultural Tenancy Act even in the transfer was a gift, but it was not specifically decided in the said Miscellaneous Case that the transaction in question was a gift and not a sale. The learned Munsif then proceeded to decide the question of the nature of the transfer, and upon evidence in the case he came to the finding that the transfer in question was in reality a sale under the garb of a gift. In that respect the learned Munsif overruled the ground on which the Revenue Officer had rejected the pre-emption application. 5. The learned Munsif then proceeded to examine the position with reference to the claim of pre-emption under the section of the Land Reforms Act. In that respect the learned Munsif overruled the ground on which the Revenue Officer had rejected the pre-emption application. 5. The learned Munsif then proceeded to examine the position with reference to the claim of pre-emption under the section of the Land Reforms Act. He pointed out that in the khatian in which the 2/3rd share of the tank in Plot No. 422 was recorded, i.e. khatian No. 1227/1 of mouza Amman the applicants for pre-emption are not co-sharers and he held that for that reason the petitioners are not entitled to pre-empt as co-sharers. 6. It was next argued before the learned Munsif that section 8 of the Land Reforms Act not only gave the right of pre-emption to any co-sharer raiyat of the holding but also that right is given by that section to 'any raiyat possessing land adjoining such holding'. That part of the section is a provision giving a right of pre-emption on the ground of vicinage. The learned Munsif, however, was of the view that because of the particular language is section 8 the petitioners do not 'come within the classification of contiguous tenant' of a holding a portion whereof has been transferred although in his view they may be co-sharers of the property which has been transferred and, therefore, he held that pre-emption on the ground of contiguity or vicinage as contemplated in section 8 of the Land Reforms Act is not applicable in the instant case. Having so decided the learned Munsif also noted in his judgment that pre-emption on the ground of vicinage has already been declared ultra vires the Constitution by the Supreme Court. Obviously, that is a reference to the decision of the Supreme Court in the case of (1) Bhanu Ram v. Baij Nath Singh and Ors., AIR 1962 SC 1476 . Upon those views the learned Munsif rejected the petitioners' claim for pre-emption on a ground other than the ground on which the Revenue Officer had rejected that claim. 7. Against that appellate order of the learned Munsif the present Rule has been obtained by the petitioners. Mr. Upon those views the learned Munsif rejected the petitioners' claim for pre-emption on a ground other than the ground on which the Revenue Officer had rejected that claim. 7. Against that appellate order of the learned Munsif the present Rule has been obtained by the petitioners. Mr. Banerjee appearing in support of the Rule has assailed the view of the learned Munsif that although the petitioners are co-sharers of the property which is the subject-matter of the transfer, section 8 of the Land Reforms Act does not enable them to pre-empt the transfer which the learned Munsif has held as a fact overruling the finding of the Revenue Officer that it is really a sale and not a gift. Mr. Banerjee emphasizes that the finding of the learned Munsif that transfer is a transaction of sale is a finding of fact arrived at upon the evidence in the case and for that reason the exception made in sub-section (2) of section 8 will not apply. Mr. Banerjee also pointed out that the evidence produced in the case clearly shows that in, a holding recorded in khatian No. 1227/1 comprising of several plots 2/3rd share only of the Plot No. 422 has been recorded. The other 1/3rd share of that Plot No. 422 has been recorded as a part of another holding in khatian No. 1423 which also comprises of several plots. In the holding recorded in khatian No. 1423 the petitioners claiming pre-emption are recorded tenants who are in possession of the entirety of the holding recorded in that khatian. In khatian No. 1227/1 the present petitioners are not recorded tenants even as co-sharers. From that in the view taken by the learned Munsif that the petitioners do not answer the description of a co-sharer raiyat of the holding one plot of which is the subject-matter of the transfer sought to be pre-empted may be right. But, Mr. Banerjee assailed the view of the learned Munsif that although they are the recorded tenants of the entirety of holding in which is comprised alongwith other plots 1/3rd share of the Plot No. 422, yet they are not within the "category of raiyat possessing land adjoining such holding". 8. In answer to Mr. Prasanta Kumar Banerjee's contention, on behalf of the opposite parties the learned Advocate, Mr. 8. In answer to Mr. Prasanta Kumar Banerjee's contention, on behalf of the opposite parties the learned Advocate, Mr. Ranjit Kumar Banerjee, in his learning and characteristic fairness, did not endeavour to support the learned Munsif's view that because the entirety of that portion of the tank in Plot No. 422, i.e., 2/3rd portion which is recorded in khatian No. 1227/1 is the subject of the transfer, therefore, it is not a transfer "of a portion of share of the holding". But Mr. Ranjit Kumar Banerjee contended that for claiming pre-emption on the ground of vicinage the petitioners for pre-emption need be a "raiyat possessing land adjoining such holding". In that phrase the word 'land' has been emphasized by Mr. Ranjit Kumar Banerjee for contending that it was necessary for the petitioners to show that not only they were possessing 1/3rd share of this very same tank 2/3rd share of which is the subject-matter of the transfer sought to be pre-empted, they were possessing land 'adjoining the holding.' The basis of this contention of Mr. Ranjit Kumar Banerjee is that the 'land' as defined in section 2(7) of the Land Reforms Act is in these terms :–– 2. In this Act, unless there is anything repugnant in the subject or context,... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (7) 'Land' means agricultural land other than land comprised in a tea-garden which is retained under sub-section (3) of section 6 of the West Bengal Estates Acquisition Act, 1953, and, includes homesteads but does not include tank. For that definition Mr. Ranjit Kumar Banerjee has endeavored to deduce that tank is not 'agricultural land. Subtle though the definition is, for the purpose of the present case it is enough to point out that although the claimant for pre-emption had clearly made a case in the very application for pre-emption on the ground 'contiguous tenant' yet that Plot No. 422 is of water and no land has ever been the contention raised on behalf of the opposite parties far less that the said Plot No. 422 is not agricultural land. A question of fact which could only be decided on evidence not having been raised at the proper stage, the opposite parties cannot be allowed to raise such a question of fact for the first time in the Third Court in this revisional application. Moreover, it appears from the record that the petitioners had brought in evidence the unimpeachable documents which are the relevant R. S. khatians and also the C. S. map all of which have been marked exhibits by the Revenue Officer. Had the controversy now sought to be raised by Mr. Ranjit Kumar Banerjee been raised it could be decided by the Court of fact by reference to the evidence that was already on the record. For these reasons the question of fact on which Mr. Ranjit Kumar Banerjee sought to support the order of the learned Munsif rejecting the application for pre-emption cannot be allowed to be raised for the first time in this revision case. 9. With regard to the Supreme Court decision to which the learned Munsif made reference in his judgment, i.e. the case of Bhanu Ram v. Baij Nath (supra). Mr. Ranjit Kumar Banerjee has himself pointed out that in that decision their Lordships of the Supreme Court have held the pre-emption on the ground of vicinage ultra vires the Constitution in respect of urban properties only, and their Lordships have made an exception in express words regarding agricultural lands. Therefore, no question of vires of the provisions giving right of preemption on the ground of vicinage in section 8 of the West Bengal Land Reforms Act is arising in this case because the subject-matter of the legislation, which the West Bengal Land Reforms Act is, is agricultural lands, and not urban properties. The contention of Mr. Ranjit Kumar Banerjee that the claim for pre-emption should fail because the petitioners have not proved that Plot No. 422 is agricultural land must fail. As I have mentioned already the reasons on which the learned Munsif had rejected the application for pre-emption has been conceded to be insupportable by Mr. Ranjit Kumar Banerjee himself appearing for the opposite parties. 10. The application under section 115 of the Code of Civil Procedure, therefore, succeeds and the Rule is made absolute with costs. The order rejecting the application for pre-emption is set aside. Ranjit Kumar Banerjee himself appearing for the opposite parties. 10. The application under section 115 of the Code of Civil Procedure, therefore, succeeds and the Rule is made absolute with costs. The order rejecting the application for pre-emption is set aside. The petitioners are entitled to pre-empt the transfer which is the subject-matter of the application. Let the records be sent back to the Court below. The Revenue Officer is directed to take appropriate steps according to this decision and the matter be disposed of there according to law.