A homestead of a land-holder, as defined in the Bihar Land Reforms Act, 1961, includes a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and outbuilding and includes any outbuilding for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house.

UNTWALIA, J.

1. These three writ applications arising out of the one and the same proceeding under Sec.16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter called the Act, have been heard together and are being disposed of by this common judgment. Unless otherwise indicated, the facts will be stated with reference to C. W. J. C. 429 of 1967.

2. Syed Mohammad Muslim, respondent No. 2, was owner of 0.06 acre of land comprised in plot No. 3307, Khata No. 517, with his dwelling house standing thereon, in village Rangpura, Police station Dhamdaha, district Purnea. By a registered sale deed dated 27-2-1965, he transferred the said land to Sheikh Salahuddin, respondent No. 1, for Rs. 100/-. The petitioner is brother of respondent No. 2. In order to claim pre-emption under Sec.16 (3) of the Act, he made a deposit of Rs. 110.00 on 13-3-1965 in accordance with the Act and the Rules framed thereunder. The application under Sec.16 (3) of the Act along with duly filled up form L. C. 13 prescribed under the Rules and a certified copy of the Kebala was filed on 15-3-1965; the application was filed against respondents 1 and 2. On service of notice, respondent No. 2 appeared on 29-4-1965 and filed his objection, a copy of which is annexure 1, to resist the application of the petitioner filed under Sec.16 (3) of the Act. In his objection, he disclosed that respondent No. 1 had committed fraud on him and had taken the sale deed on 27-2-1965 for a sum of Rs. 100.00 only although the agreement was to transfer the land with the house standing thereon for a sum of Rs. 600/-. Respondent No. 2, therefore, claimed to have cancelled the sale deed by executing a deed of cancellation on 9-4-1965. The claim of the petitioner was that he was either a co-sharer or an adjacent raiyat to the land transferred and the transfer was to a person who was neither. The first authority by its order dated 18-6-1965 (annexure 2) held that the purported cancellation brought about by respondent No. 2 was an afterthought - not effective; pre-emption was ordered. Respondents 1 and 2 preferred two appeals before the Commissioner. The appeals were dismissed by order dated 6-1-1966 (Annexure 3). The two revisions filed by the said two respondents were allowed by the Additional Member, Board of Revenue, by order dated 24-6-1966 (Annexure 4), because before the Board it was asserted that not only the sale deed dated 27-2-1965 had been cancelled by the deed of cancellation dated 9-4-1965 but also another sale deed had been executed on the same date, i.e., 9-4-1965 in favour of Syed Wahizul Haque alias Waizul Haque, respondent No. 3, for a sum of Rs. 900/-. The Board, in view of the assertion of new fact, thought it proper to remand the case in order to add respondent No. 3 as a party to the proceeding under Sec.16 (3) of the Act and to decide the matter afresh in his presence.

3. Respondent No. 3 on being added endeavoured to resist the application of the petitioner for pre-emption on several grounds. The Additional Collector who decided the matter in the first instance after the remand order of the Board held, by his order dated 31-10-1966 (annexure 5), that the cancellation and the second sale deed were fraudulent; title had completely passed to respondent No. 1 under the first sale deed on 27-2-1965. In that view of the matter, pre-emption was again allowed. This time three separate appeals were filed by each of respondents 1 to 3 and they were dismissed by a common order of the Commissioner on 3-1-1967 (annexure 6). Three revisions were taken to the Board and this time the Board of Revenue has taken the view that title did not pass by the first sale deed dated 27-2-1965 to respondent No. 1 and the sale deed in favour of respondent No. 3 was effective and valid. A copy of the order of the Board of Revenue dated 17-5-1967 is annexure 7.

4. When these writ applications came up for hearing before a Division Benc