JUDGMENT : Ashoke Kumar Dasadhikari, J. Order impugned dated 16th January, 2007 passed by the learned Additional District Judge, Fast Track 2nd Court, Contai in Misc. Appeal No. 18 of 2006 reversing the order of the learned Trial Court dismissing application for pre-emption is under challenge in this revisional application. 2. Facts revealed in this case is briefly stated hereunder:-Opposite party nos. 2, 3 and 4 purchased the suit property by a registered deed of sale dated 24th June, 1999. The petitioners are joint owners of plot Nos. 792, 794 and 795 which are situated western side of the suit property. Opposite party no. 1/pre-emptor became the owner of property being plot Nos. 792, 794 and 795 after partition with his brother and the opposite party no. 1 is the adjoining owner of the land of the suit property and as such, opposite party no. 1 prayed for pre-emption. The petitioner contested the Misc. Appeal by filing written objection. It was contended by them that the opposite party no. 1 is neither a co-sharer nor adjoining raiyat of the suit property being plot No. 780 measuring 57 decimals belonged to Atul and Asutosh in equal share. Accordingly, in revisional settlement their names have been published finally recorded as raiyat in the record of right. Thereafter registered partition deed was registered on 3rd January, 1978 by which Atul got entire suit property and had been in possession thereof. Thereafter Atul by a registered deed of gift dated 4th June, 1987 gifted the property in favour of one Nirmala and Nirmala sold the suit property to the opposite party nos. 2, 3 and 4 by a registered sale deed dated 2nd July, 1999. The registration was recorded in volume on 20th July, 1999. Opposite party no. 1 filed a pre-emption case on 15th November, 1999 within the statutory period of four months in between the date of registration of sale deed dated 2nd July, 1999 and filing of pre-emption case on 15th November, 1999. Opposite party nos. 2, 3 and 4 by a registered deed exchanged the suit property with the petitioners on 23rd June, 1999. The pre-emption case was heard on merit. The learned Trial Court rejected the application for preemption by its order dated 31st August, 2004. The pre-emptor/opposite party no. 1 being aggrieved by and dissatisfied with the impugned judgment order dated 31st August, 2004 filed a Misc. The pre-emption case was heard on merit. The learned Trial Court rejected the application for preemption by its order dated 31st August, 2004. The pre-emptor/opposite party no. 1 being aggrieved by and dissatisfied with the impugned judgment order dated 31st August, 2004 filed a Misc. Appeal no. 18 of 2006 before the learned Additional District Judge, Fast Track 2ndCourt at Contai. The appeal was heard on contest. Learned Additional District Judge, Fast Track 2nd Court at Contai by judgment and order dated 16th January, 2007 was pleased to allow the appeal setting aside the judgment and order passed by the learned Civil Judge, Junior Division, 1st Court at Contai. Hence this is revisional application. 3. Learned Counsel appearing for the petitioners who are transferee by exchange have filed this revisional application thereby alleging that the order impugned should be set aside. 4. Learned Counsel representing the petitioners submitted that the learned Appellate Court has failed to follow the provisions of law prescribed under Section 8(2)(a) of the West Bengal Land Reforms Act, 1955. 5. Learned Counsel firstly submitted that after the land was transferred by Nirmala in favour of the opposite party nos. 2, 3 and 4, the petitioners exchanged the suit property between themselves and the opposite party no. 2, 3 and 4 and, therefore, there is a transfer by exchange and as such, the preemption application is hit by sub-Section 2(a) of Section 8 of the said Act. 6. Learned Counsel submitted that the pre-emption application ought to have been dismissed on that score alone. Learned Counsel then submitted that by this time law of pre-emption is well settled. He submitted that while considering the pre-emption application the learned Appellate Court ought to have kept in mind the three principles laid down by the Hon'ble Apex Court in case of (Shyam Sunder v. Ram Kumar) reported in A.I.R. 2001 Supreme Court 2472. 7. Learned Counsel then submitted that by this time law of pre-emption is well settled. He submitted that while considering the pre-emption application the learned Appellate Court ought to have kept in mind the three principles laid down by the Hon'ble Apex Court in case of (Shyam Sunder v. Ram Kumar) reported in A.I.R. 2001 Supreme Court 2472. 7. Learned Counsel submitted that the three legal principles which are attracted and in fact applicable in the facts and circumstances of this case are (1) The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only; (2) The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first Court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit the suit for pre-emption must fail. (3) A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first Court would not affect his right of maintainability of the suit for pre-emption. 8. Learned Counsel emphasised on these three principles. According to him, from the date of sale till date of passing of decree the provisions of law is undergone sea-change. He submitted that the provisions, which were introduced by way of amendment in 2000, ought to have been weighed at the time of consideration and disposal of the appeal. 9. Learned Counsel submitted that in view of exchange between the petitioner and the opposite party nos. 2, 3 and 4, original transfer, merged with exchange. Therefore, the provisions under Sub-Section (2)(a) of the Section 8 are attracted in such a situation. 10. Learned Counsel further submitted in view of such exchange the claimant lost his right and the petitioners have improved their right equal or above the right of the claimant. 11. Learned Counsel submitted therefore the learned Appellate Court below has made a serious mistake while disposing of the appeal. 10. Learned Counsel further submitted in view of such exchange the claimant lost his right and the petitioners have improved their right equal or above the right of the claimant. 11. Learned Counsel submitted therefore the learned Appellate Court below has made a serious mistake while disposing of the appeal. Learned Court below failed to apply its mind in respect of the entire matter and has reached to a wrong conclusion which is not sustainable according to the law of land. 12. Learned Counsel then cited another judgment reported in A.I.R. 1932 Privy Council 87 (Hans Nath v. Ragho Prasad Singh). Learned Counsel submitted that sale is taken place to a stranger. There are three possible views as to the rights of a co-sharer namely, (1) that an indefeasible right of pre-emption arises by the sale itself and that no change in the status or relation of the parties after the sale can affect the question between them; or (2) that the criterion must be the position of the parties when the right is formally asserted by the institution of a suit; or (3) that the validity of the claim must be judged on the facts existing on the date when a decree has to be passed. 13. Learned Counsel submitted that the existing law on the date of passing the decree ought to have been considered by the learned Appellate Court. But in the instant case the learned Court below did not take note of the law of preemption on the date of passing the decree. According to him, the order impugned is not at all sustainable. 14. Learned Counsel appearing for the pre-emptor/opposite party no. 1 submitted that in the instant case the land in question was transferred by Nirmala to opposite party nos. 2, 3 and 4 by a registered sale deed dated 2nd July, 1999 which has entered in volume on 29th July, 1999. Pre-emption case was filed on 15th November, 1999 within the stipulated period of four months. Therefore, appellant was entitled to get an order of pre-emption. 15. Learned Counsel submitted that the pre-emptor/opposite party no. 1 acquired the right to file an application within the period of limitation prescribed under the Act i.e. four months from the date of such transaction. Pre-emption case was filed on 15th November, 1999 within the stipulated period of four months. Therefore, appellant was entitled to get an order of pre-emption. 15. Learned Counsel submitted that the pre-emptor/opposite party no. 1 acquired the right to file an application within the period of limitation prescribed under the Act i.e. four months from the date of such transaction. Here in the instant case the application was made within that time and admittedly the land was sold by Nirmala in favour of opposite party nos. 2, 3 and 4. However, to get an escape from the pre-emption application an exchange took place between the petitioners and the opposite party nos. 2, 3 and 4, the original transferees. 16. Learned Counsel submitted that on the date of filing the pre-emption application the pre-emptor do have right of pre-emption. The pre-emptor had a right to get the property on pre-emption on the date of decree also. The pre-emptor had a right to get the decree in favour of himself on the ground of vicinage. 17. Learned Counsel submitted that the property is situated in the vicinity i.e. close to the boundary of the aforementioned three plots and in view of provisions under Section 8 of the Act the petitioner is entitled to get preemption. 18. Learned Counsel further submitted that the pre-emptor/opposite party no. 1 filed pre-emption petition against the first transfer which took place between Nirmala and the opposite party nos. 2, 3 and 4 on 2nd July, 1999 and the claim made for pre-emption was secured on the basis of the sale of the property which was transferred by exchange subsequent to sale. 19. Learned Counsel submitted the law is quite specific and clear if any subsequent exchange or transfer by way of partition took place that would not at all be covered under sub-Section (2)(a) of Section 8 of the said Act. 20. Learned Counsel submitted the reading of the aforementioned subsection would make it clear that in such a situation sub-Section (2)(a) of Section 8 of the Act is not at all attracted. 21. Learned Counsel submitted neither there is a merger in the exchange which took place subsequent to the sale nor there is any question of merger either. The Act do not contemplate such a situation. There is no such specific provision dealing with such a situation. Nothing could be presumed nor assumed as implied. 21. Learned Counsel submitted neither there is a merger in the exchange which took place subsequent to the sale nor there is any question of merger either. The Act do not contemplate such a situation. There is no such specific provision dealing with such a situation. Nothing could be presumed nor assumed as implied. 22. Learned Counsel submitted that the Supreme Court's judgment in fact goes in his client's favour. The Hon'ble Apex Court has squarely spelt out that the pre-emptor should have a right to pre-empt on the date of sale, on the date of filing suit and date of passing the decree of the first instance only can get such pre-emption. 23. Learned Counsel submitted that in the facts and circumstances of this case even after taking note of the aforementioned principles there is no scope to take a different view. 24. Learned Counsel further submitted that this revisional application is of no merit and as such should be dismissed. 25. On the basis of the facts narrated hereinbefore and taking note of the submissions made by the respective learned Counsel representing the parties before this Court specially the petitioners, exchangee, and the pre-emptor/opposite party no. 1 this Court is of the view that the preemption application is not at all affected by clause (a) of sub-Section (2) of Section 8 of the West Bengal Land Reforms Act, 1955. For better appreciation of the scope and ambit of Section 8 of the Act the provisions are quoted hereunder:- “8. 1 this Court is of the view that the preemption application is not at all affected by clause (a) of sub-Section (2) of Section 8 of the West Bengal Land Reforms Act, 1955. For better appreciation of the scope and ambit of Section 8 of the Act the provisions are quoted hereunder:- “8. Right of purchase by co-sharer or contiguous tenant – (1) If a portion or share of a [plot of land of a raiyat] is transferred to any person other than a [co-sharer of a raiyat in the plot of land], [the bargadar in the plot of land] may, within three months of the date of such transfer, or] any [co-sharer of a raiyat in the plot of land] may within three months of the service of the notice given under sub-section (5) of section 5, or any raiyat possessing land [adjoining such plot of land] may, within four months of the date of such transfer, apply to the [Munsif having territorial jurisdiction,] for transfer of the said portion or [share of the plot of land] to him, subject of the limit mentioned in [section 14M,] on deposit of the consideration money together with a further sum of ten per cent of that amount: [Provided that if the bargadar in the plot of land, a [co-sharer of raiyat in a plot of land] and a raiyat possessing land [adjoining such plot of land] apply for such transfer, the bargadar shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by others shall be refunded to them:] [Provided further that where the bargadar does not apply for such transfer and] a [co-sharer of a raiyat in the plot of land] and araiyat possessing land [adjoining such plot of land] both apply for such transfer, the former shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by the latter shall be refunded to him: [Provided also] that as amongst raiyat possessing lands [adjoining such plot of land] preference shall be given to the raiyat having the longest common boundary with the land transferred. (2) Nothing in this section shall apply to- (a) a transfer by exchange or by partition, or (b) a transfer by bequest or gift, or hiba-bil-ewaz, or (c) a mortgage mentioned in section 7, (d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit [for any individual, or] (e) a transfer of land in favour of a bargadar in respect of such land if alter such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate. Explanation.- All orders passed and the consequences thereof under sections 8, 9 and 10 shall be subject to the provisions of Chapter 11B.] (3) Every application pending before a Revenue Office at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.” 26. In view of sub-Section (2)(a) of Section 8 of the West Bengal Land Reforms Act, 1955 the initial transfer if by way of exchange or by partition or by bequest or gift then the provisions of the Section is attracted. In the present case the initial transfer was not by exchange by way of sale, took place on 2nd July, 1999 which created a right in favour of the adjoining owner to claim pre-emption and, accordingly, opposite party no. 1/pre-emptor being an adjoining owner filed a pre-emption case within the stipulated period of time. The date of sale by a registered deed is the material date but not the date of exchange which took place much after 2nd July, 1999. The judgment cited by the learned Counsel for the petitioner/the subsequent transferee clearly envisage that an indefeasible right of pre-emption arises by the sale itself and that no change in the status or relation of the parties after the sale can effect the question between them. However, within the period of limitation there is a second transfer between the original purchaser being opposite party nos. However, within the period of limitation there is a second transfer between the original purchaser being opposite party nos. 2, 3 and 4 and the petitioner by way of exchange and this transfer on exchange in no way affect the right of the adjoining owner in view of the provisions under sub-Section (2)(a) of Section 8 of the aforementioned Act. Learned Appellate Court considered the matter and came to a finding that the exchange which took place in between the date of sale and the date of filing pre-emption application is of no effect and in no way affect the right of the pre-emptor/opposite party no. 1. There is no error in the decision. There is also no controversy over those principles laid down by the Hon'ble Apex Court in case of (Shyamsundar) (supra). It is admitted position that the first transfer is by way of sale which is not at all a partition nor an exchange, therefore, it would not be difficult to hold that the claim of the pre-emptor/opposite party no. 1 is lawful and not at all hit by any of the provisions under Section 8(2)(a) of the aforementioned Act. Moreover, the principles laid down by the Hon'ble Apex Court in case of (Shyamsundar) (supra) also approve and support the claim and contention of the petitioner. 27. This Court is of further view that the pre-emptor/opposite party no. 1 had his right to pre-empt on the date of sale and on the date of filing the suit since his right accrued on first date of transfer which took place on 2nd July, 1999 not thereafter and for that reason he had a right to file a suit within limitation period prescribed under the Statute and also he has right on the date of passing the decree. Therefore, the order passed by the learned Trial Court do not go contrary to the principles laid down by the Hon'ble Apex Court or settled in other cases. 28. For all the aforementioned reasons there is no illegality in the findings of the learned Appellate Court. 29. In my view there is no merit in this revisional application, therefore, is dismissed.