Partial pre-emption is not permissible under Section 16 (3) of the Bihar Land Reform (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.

S. N. Jha, J.

1. -this application under Article 227 of the Constitution by the transferee arises out of a proceeding under Sec.16 (3) of the Bihar land Reform (Fixation of Ceiling Area and Acquisition of Surplus land)Act, 1961 (in short the Act ). The petitioner succeeded before the first authority, namely, the Deputy Collector, land Reform, but lost before the Additional Collector, and the Board of Revenue. He has challenged the orders of the paid two authorities.

2. Section 16 (3) of the Act provides that where any transfer of land is made to any person other than a co-sharer or raiyat of an adjoining land, co-sharer of the transferor or any raiyat holding land adjoining the land transferred shall be entitled to claim re-transfer of the landto him on the same terms and conditions as contained in the deed. This right of re-conveyance in the legal parlance is known as right of pre-emption. The land transferred in the instant case comprises of seven plots. It is an admitted position that the applicant of the proceeding i. e. the pre-emptor is co-sharer of the transferor as well as adjoining raiyat of all the plots. A co-sharer or adjoining raiyat, as stated above, is entitled to claim pre-emption but the claim can be allowed, inter alfa only if the transfered himself is not either co-sharer or the adjoniog raiyat. It is not in dispute in the instant case that the transferee i. e, the petitioner is adjoining raiyat of at least one plot, vis. , plot No.101. On this ground the claim of pre-emption was rejected by the d. C. l. R. holding that there cannot be partial pre-emption The Additional collector held otherwise. The Additional Member, Board of Revenue, while agreeing with the Additional Collector, took the view that the ialf share in the plants having been railed by the transferors, in the absence of partition between the transferors and the pre-emptor, it may well be that in the event of north southdivision of plot No.101, the eastern portion any fall to the share of the transfer of and in that case plot No.102 belonging to the petitioner situate on the western side of the plot transferred i. e. plat No.101 will not touch it and, therefore, he will not be the adjoining raiyat of even plot. Counsel for the pre-emtor-respondent No.4, however, very fairly did not support that logic inasmuch as plot No.102 is shown on the western boundary of plot No.101 in the sale-deed itself. It is, thus, an admitted position that the petitioner holds land adjacent to plot No.101, one of the plots transferred.

3. It is well-settled that a pre-emptor in order to succesed in his claim must prove that be is either co-sharer of the transferor or the adjoninig raiyat of all the plots transferred. Where the transferee himself holds land adjacent to the plots no such claim is maintainable. The point |for consideration is whether the transferee holding land ajacent to only one of the several plots and not all can resist the claim The penil is not res Integra.

4. In Ramchabila Singh V/s. Ramsagar Singh 1969 Bljr 203 as many as 148 plots had been transferred. The transferees held land adjacent to a large number of them but not all. The question for consideration as framed in paragraph 8 of the judgment was whether when several plots are transferred by one sale deed the co-sharers in respect of all the plots can claim a right of pre-emption under Sec.16 (3) when the transferee is himself an adjacent raiyat in respect of some of the plots. The learned Chief Justice after ousting the provisions of Sec.16 (3) (/) observed :-

". . . the clause refers to "land transferred" and "purchase money". The expression "land" any include several plots : but the clause contemplates only one transaction of transfer. The "purchase money" also is intended to be one unit. A further subdivision of the land transferred, with a view to make on apportionment between a co-sharer on the one hand and an adjacent raiyat on the other, is not contemplated in that clause, nor