1. These two applications have been heard together and are being disposed of by a common judgment. Two sale deeds were executed by Rahman Hajam and Mahabali Hajam in favour of Radha Krishna Mishra father of respondents Nos. 4 and 5 on 6-7-1965, one in respect of 6 kathas of land of plot No. 531 and another in respect of 15 kathas 61/2 dhurs of the same plot. The petitioners filed two applications under S.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, stating, inter alia, that they were co-sharers holding a portion of the same plot No.631. The cases were numbered as Ceiling Case No. 54 of 1965-66 and Ceiling Case No. 55 of 1965-66. The two cases were decided in favour of the pre-emptor. The petitioners filed appeals before the learned Additional Collector who ultimately set aside the order passed by the Land Reforms Deputy Collector and held that since the pre-emptors had transferred their interest in the holding the application could not be maintained. The matter was taken by the pre-emptor to the Board of Revenue, where it appears that he filed only one revision application which was numbered as Case No.202 of 1978. The Additional Member, Board of Revenue by a resolution dated 28-3-1979 dismissed the revision application and held that the pre-emptors were no longer boundary raiyats as they had sold their interest in plot No. 631 by two sale deeds dated 30-4-1970 and 8-5-1970. The revision application was, accordingly, dismissed. The petitioners have filed two writ applications being CWJC Nos.2107 and 2108 of 1979. In both of them the order passed by the Additional Member, Board of Revenue in Case No. 202 of 1978 (Annexure-1) as also the order passed by the Additional Collector in Appeals Nos. 845 of 1977-78 and 853 of 1977-78 have been challenged. It appears that only one revision application was filed before the Member Board of Revenue against the common order passed by the Additional Collector in the two ceiling appeals. In fact, two revision applications should have been filed. It is now admitted by learned counsel for the petitioners that this writ application is confined only to Ceiling Case No. 55 of 1965-66 which was in respect of 15 kathas 61/2 dhurs of land of plot No. 631. There is no application against the order passed in respect of sale deed of 6 kathas of plot No. 631. Learned counsel, therefore, confines himself to the case in respect of 15 kathas 61/2 dhurs of land of plot No. 631. Since both these writ applications are against the same order the one i.e., C.W.J.C. No. 2108 of 1979, in fact, has become infructuous and is not being pressed.

2. Mr. Susheel Chandra Sinha learned counsel appearing on behalf of the petitioners has submitted that original order was passed by the Land Reforms Deputy Collector on 6-10-1969 by which he allowed both the applications for pre-emption. He submitted that on that day i.e. the date on which the order was passed in the two cases, the sale deeds had not been executed by the pre-emptors transferring their interest in plot No. 631. In other words, learned counsel submitted that on the date of the order passed by the first Court the pre-emptors were the boundary raiyats and, therefore, they had a right to pre-empt.

3. The question for consideration is as to whether the owner of a contiguous plot is entitled to pre-empt, if he has sold his property to another person after institution of the case. Learned counsel for the petitioners had relied upon S.233 of Mullas Mohammendan Law 17th Edition where it has been observed that the right in which pre-emption is claimed whether it be co-ownership or participation in appendages or vicinage must exist not only at the time of sale, but on the date of the suit for pre-emption and it must continue up to the time the decree is passed. It was submitted by the learned counsel that the decree was passed in the case on 6-10-1969 and until then the sale deed had not been executed by the