Sachchidanand Jha and Aftab Alam JJ.

1. Prayer for substitution of the heirs of the sole petitioner, which is not opposed by the respondents, is allowed. Let the name of the petitioner be expunged from records and in his place, those of his heirs mentioned in the substitution petition be substituted.

2. These two petitions between the same parties relating to the same dispute arising out Of analogous proceeding 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) have been heard together and are disposed of by this common judgment.

3. The dispute relates to Plot No. 506 or village Bishunpura within Udwantnagar Anchal of Bhojpur district." The plot having total area of 8.31 acre stood in the name of respondent No. 5. Mst. Meniran Bibi. On 1.6.76 Maniram Bibi sold 0.15 acre land of the plot to respondent No. 4 Md. Azim. The petitioner filed application under Sec. 16(3) of the Ceiling Act claiming right of pre-emption, i.e. re conveyance of the vended land on the same terms and conditions. The application was registered as Case No. 11 of 1976-77 Later, the purchased the remaining portion of the plot, i.e. 0.16 acre, from respondent No. 5 on 28.6.76. It was the turn of respondent No. 4 to file application for pre-emption which was registered as Case No. 17 of 1976-77. It may be stated here that the petitioner is non else than the son of respondent No. 5. His case in substance was that his mother, i.e. respondent No. 5, was merely benamidar; the real owner of the property being the father, late Tawarak Hussain. He thus pleaded that he was co-sharer of the land with his mother. The claim of respondent No. 4 on the other hand was that by reason of the purchase of portion of the plot on 1.6.76, he had become adjoining raiyat of the land which was later purchased by the petitioner. He also denied that the petitioner was either a co-sharer or adjoining raiyat as on the date of the purchase by him (respondent No. 4)

4. All the three authorities below have rejected the case of the petitioner that his mother was benamidar or that he had any subsisting right or interest in the land from before. In fact, the purchase of portion of the plot from her sounds death-knell of his case. Admittedly, he had purchased the portion of the plot subsequent to the purchase by respondent No. 4. Thus he could neither claim pre-emption as being co-sharer or adjoining raiyat or the plot nor resist the claim of respondent No. 4. These aspects of the matter stand concluded by concurrent findings of fact by the authorities below.

5. The solitary submission made by the counsel for the petitioner Mr. Shashi Shekhar Dwivedi was that by reason of subsequent events, namely consolidation of the erstwhile plots of land into new plots (chaks) and change in the status quo the disputed land has lost its identity and, therefore, the order of pre-emption cannot be given effect to. He submitted that right of the pre-emptor must subsist not only on the date of the application but continue upto the final disposal of the case by the ultimate court. In support of his contention, counsel placed reliance on Ishaque Hajam V/s. Addl. Member Board of Revenue 1935 PLJR 323. He also referred to the object underlying the provision of Section 16(3), which, according to him, is to consolidate the fragments or small parcels of land. That object having been achieved by virtue of orders and proceedings under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short, the Consolidation Act), the claim of the petitioner must be held to have become in fructuous. In this regard, he referred to the non-obstinate clause as contained in Sec. 39 of the Consolidation Act and placed reliance on Sarwan Singh V/s. Kasturi Lal -- .

6. The decision in the case of Ishaque Hajam (supra) rendered by a single Judge of this Court is clearly distinguishable on facts and therefore it is not