K.Venkataswami, J.

1. This is an appeal under Clause 10 of the Letters Patent. It arises out of an application under Articles 226 and 227 of the Constitution of India. The facts giving rise to the appeal, shortly stated, are there.

2. Respondent No. 3 Keshav Chandra Pratap Singh made a transfer by sale of 0.42 acre land of plot No. 1244 of village Ratangarh in the district of Bhojpur in favour of respondent No. 2, Raja Ram Singh, The appellant made an application under Sec. 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short the Ceiling Act) claiming right of pre-emption on the ground of adjacency to the vended plot. The claim was resisted by the purchaser on the ground that he was a Sikmidar i.e. an under-Raiyat not only of the vended plot but also the adjacent plot bearing plot No. 1243. According to him, as a Sikmidar, he has acquired certain rights and privilege in the land. The Deputy Collector Ineharge Land Reforms, exercising the powers of the Collector under the Act allowed the claim. The appeal and the revision preferred by the purchaser having gone in vain, he came to this Court in C.W.J.C. No. 2169 of 1979. The said writ petition has been allowed and the order of the authorities below set aside by the judgment and order under appeal (Judgment is reported in 1985 BBCJ 458). The learned Judge held that the rights conferred upon a Raiyat of the adjoining plot of land or co-sharer to resist the claim of pre-emption is also available to an under-Raiyat having right of occupancy.

3. Mr. Dinu Kumar, learned Counsel for the appellant, submitted that the learned Judge has erred in law in referring to the provisions of the Bihar Tenancy Act in coming to the conclusion that the statute of an under-Raiyat is the same as that of Raiyat when the two expressions have been separately defined in the Ceiling Act itself. Counsel submitted that the Ceiling Act makes clear distinction between Raiyat and an under Raiyat and, therefore, it cannot be said that an under-Raiyat stands on the same footing as a Raiyat. Reference was made to definition of the terms Raiyat and under-Raiyat occurring in Sec. 2 of the Act, and also to Sec. 21 of the Act

4. Sub-sec. (3) of Sec. 16 of the Act, so far as relevant provides:

When a transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferer or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed.

A co-sharer of the transferor or a raiyat of the adjoining land is entitled to have the land re-conveyed to him on the same terms and conditions. This right, however, is not available to him if the transferee himself is a co-sharer or an adjoining raiyat. In order to succeed in his claim of pre-emption, thus, he has to prove both; that he is a co-sharer or adjoining raiyat, and the transferee is not.

5. The provision, it is true, does not refer to under-raiyat. It confers right upon a raiyat of the adjoining land or a person who is co-sharer of the transferor to resist the claim of pre-emption. In view of the provisions of Sections 2(k), 2(m) and 2(n) of the Ceiling Act read with the provisions of Sections 4 and 5 of the Bihar Tenancy Act, an under-raiyat in the strict sense of the term may not be a raiyat. Nevertheless, having regard to the provisions of Secs. 12, 21 and 22 of the Ceiling Act it has to be held that under-raiyats too have certain pre-existing rights in the land.

6. It is well established that right of pre-emption is a weak right which is defeatable by all legitimate means particularly at the instance of those who themselves claim equal rights. In Smt. Sudama Devi and Ors.