Under Section 16(3) of the Bihar Land Reforms Act, 1961, a co-sharer of the land transferred and an adjacent raiyat have equal rights to pre-emption, and there is no preferential right given to a co-sharer.

R.L. Narasimham, J.

1. This is an application under Articles 226 and 227 of the Constitution to quash the order of the Additional Member, Board of Revenue, dated the 7th January, 1967 (Annexure F), setting aside the appellate Order of the Commissioner of Tirhut Division, dated the 21st October, 1966 (Annexure E), and the order of the Additional Collector of Muzaffarpur, dated the 20th November, 1965 (Annexure D), passed in favour of the two petitioners in an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act, 1961 (hereinafter referred to as the Act), A review petition was filed before the Additional Member, Board of Revenue, for reconsideration of his order; but, by his subsequent order, dated the 7th March, 1967 (Annexure G), he rejected the prayer for review.

2. On the 18th December, 1964, one Musammat Jago Kuer, widow of Damodar Singh, executed a sale deed (Annexure A) in favour of opposite party Nos. 1 and 2, viz., Ramsagar Singh and Sheosagar Singh conveying 7 bighas 19 kathas 14 1/4 dhurs of raiyati land in village Madhopur Nijhma and other villages in the district of Muzaffarpur for a sum of Rs. 10.000/-. The Total number of plots mentioned in the sale deed would be about 148, and, in almost all the plots, it was stated that Musammat Jago Kuers interest amounting to one-fourth share was conveyed by the document. It was further mentioned in the sale deed that her late husband. Damodar Singh, and the two petitioners, Ramchabila Singh and Ganga Singh, were descended from a common ancestor named Feku Singh, and that, though they had separated in mess and business, the property remained joint. Musammat Jago Kuer, however, asserted in the document that, by virtue of the Hindu Womens Right to Property Act, 1937, and the Hindu succession Act, 1958, she became the full owner of her husbands interest, amounting to one-fourth share.

3. On the 15th March, 1965, the two petitioners applied to the Additional Collector, Muzaffarpur, under Section 16(3) of the Act (Annexure B) for the transfer of the lands in their favour, alleging that they were co-sharers of Jago Kuer, and, as such, entitled to the right of pre-emption. The total consideration of Rs. 10,000/- and an additional sum of Rs. 1,000/- were deposited, and a copy of the treasury chalan, showing such deposit, was also filed along with the application as required by the proviso to Clause (i) of Sub-section (3) of Section 16 of the Act. Their application was resisted by the transferees, viz., Ramsagar Singh and Sheosagar Singh (opposite party Nos. 1 and 2), on two important grounds (Annexure C); (1) the petitioners ceased to be co- sharers in respect of some of the plots (about 13 in number) because they had settled the same with their wives viz., Sunaina Devi and Sudama Devi, who were in actual possession of the same; and (2) the objectors were adjacent raiyats in respect of most of the plots sold, and that, as between a co-sharer on the one hand and the raiyat of the adjacent land on the other, Section 16(3) of the Act did not recognise any preferential claim of the former.

4. The learned Additional Collector observed that the settlement of some of the plots with the wives of the petitioners was a bogus transaction, and that the petitioners continued to be the co-sharers of .all the plots. As regards the second point, he observed that, under Section 16(3) of the Act, a co-sharer of the land transferred is entitled to a preferential right over the raiyat of the adjacent land. He also observed that the objectors were not owners of adjacent lands of all the plots transferred. Hence, he allowed the application. The Commissioner, in appeal, practically endorsed the findings of the Additional Collector.

5. When the dispute was taken up in revision before the Additional Member, Board of Revenue, he was inclined to take the view that, under the provisions of the Act, the co-sharer and the adjacent raiyat w