In a case of subsequent transfer where the deed of transfer was executed before the filing of the pre-emption applications, the claims of pre-emption would not be maintainable unless the second transferee was also brought on the record as an Opposite party.

Aftab Alam, J.

1. These two writ petitions arise from a pre-emption proceeding unde? Sec. 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. These two cases has been heard together and are being disposed of by this common order.

2. Sushil Kumar Choudhary and Sunil Kumar Choudhary the two brothers (petitioners in CWJC No. 3340/95) purchased from a certain Bhairab Prasad Kumar (Respondent No. 6 in both the cases) 69-1/2 decimals of land (fully described in paragraph 4 of CWJC No. 3340/95) under a sale deed executed on 13-6-1988. By another sale deed executed on the same date their father Bhupal Choudhary (petitioner in CWJC No. 3341/95) purchased from the same Bhairab Prasad Kumar 33-1/2 decimals of land (fully described in paragraph 4 of CWJC No. 3341/95). The registration of the two sale deeds was completed on 8-12-1988. On 2-2-.1989 a certain Rajni Kumar (Respondent No. 5 in both the writ petitions) filed two applications under Sec. 16 (3) of the Act exercising the right of pre-emption in respect of the two sales claiming to be both a co- sharer and adjacent raiyat of the vended pieces of land. Prior to the filing of the pre-emption applications, the purchasers, the petitioners in the two writ petitions had executed on 20-1-1989 a deed of gift in. respect of the vended pieces of land in favour of one Rohit Kumar Choudhary (Respondent No. 7 in both the writ petitions), the maternal grant son of Bhupal Choudhary and the nephew of Sushil Kumar Choudhary and Sunil Kumar Choudhary. On notices being issued the purchasers appeared in the pre-emption proceeding and filed their show cause on 23-6-1989 resisting the claim of pre-emption on one of the grounds that the disputed lands were already transferred in favour of Respondent No. 7 and the claim of pre-emption was not maintainable because the donee was not made a party in the pre-emption applications. The registration of the deed of gift was finally completed on 16-10-1989 and a copy of it was produced before the Court of the first instance on 25-12-1989.

3. It is an admitted position that though the fact of the disputed lanus being transferred in favour of Respondent No. .7 came to light from the show cause filed by the petitioner on 23-6-1989, no steps were taken by the pre- emptor to get the donee impleaded as an Opposite party in his applications for pre-emption and the donee was not brought on the record before the Court of the first instance.

4. However, the L.R.D.C., Uda Kishunganj by his order dated 28-3-1990 allowed the claim of pre-emption raised by respondent No. 5. Against this order the petitioners preferred appeals before the Collector, Muzaffarpur who by his order dated 19-3-1990 allowed the appeals and rejected the claims of pre-emption. At the appellate stage too the donee was not impleaded as a party. Against the Appellate order the pre-emptor filed revisions before the Board of Revenue. In the revisions filed before the Board of Revenue the donee was for the first time impleaded as a party. The Board of Revenue by order dated 30-11-1994 allowed the revisions filed by the pre-emptors, set aside the appellate order and upheld the claims of pre-emption. Both the L.R.D.C. and the Additional Member, Board of Revenue did not go into the question whether the pre-emption applications were at all maintainable without bringing on record the donee in whose favour the disputed lands were transferred before the filing of the pre-emption applications. They, however, found that the deed of gift was farzi and fraudulent and was intended to frustrate the claims of pre-emption. According to the Addl. Member, Board of Revenue the two pieces of lands were gifted by the petitioners (the father and the two sons) by a single gift deed to Respondent No. 7 who was a resident of Bhagalpur district. The donee did not prefer any appeal against the order passed by the L.R.D.C and no evidence was produced by him to show that following the gift