The right of pre-emption under Sec.16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, is defeated if the purchaser also acquires the status of an adjacent raiyat or co-sharer before the application for pre-emption is filed.

B. P. Singh, J.

1. The instant writ petition arises out of a proceeding under Sec.16 (3) of the Bihar Land reforms (Fixation of Ceiling Area and acquisition of Surplus Land) Act, 1961. The said proceeding for pre-emption was initiated on an application filed by respondent No.5 herein. The Deputy collector, Land Reforms, Biharshariff by his order dated 27th July, 1993, rejected the application for pre-emption on a finding that since the petitioner, who was the purchaser, was also an adjacent raiyat of the land in question, respondent No.5 could not maintain an application for pre-emption as against him. However, the appellate authority, namely, the Additional Collector, nalanda, Biharshariff, by his order dated 10-8-1984 (Annexure-2) allowed the appeal which order was affirmed in revision by the Additional Member, board of Revenue, Bihar, Patna, on 4-4-1985. The orders passed by the appellate and the revisional authority have been challenged in the instant writ petition by the petitioner, who was the purchaser.

2. The facts of the case are that the petitioner purchased a plot of land measuring two kathas and odd pertaining to plot No.5124 in Khata No.318 from respondent No.6. The sale deed was executed on 25th March, 1982, but the same was registered on 16-9-1982. From the aforesaid sale deed it is apparent that plot Nos.5122 and 5123 were to the adjacent north of plot No.5124, and plot Nos.5320 and 5125 were to its adjacent east. To the south of the plot sold were plot Nos.5126 and 5127.

3. Even before an application for pre-emption could be filed by respondent No.5 the purchaser/petitioner purchased a portion of plot No.5126 under a sale deed executed on 19-10-1982. The sale deed was presented for registration on 12-11-1982, but was actually registered on 14-5 -1983.

4. After execution of the sale deed in favour of the petitioner on 19-10-1982, respondent No.5 filed an application exercising his right of pre-emption in respect of plot No.5124 sold under the sale deed dated 25-3-1982, which was registered on 16-9-1992. In his application respondent No.5 claimed that he was owner of plot Nos.5122 and 5125 which were adjacent to the plots sold under the said sale deed and, therefore, claiming to be an adjacent raiyat he exercised his right of pre-emption under Sec.16 (3) of the Act.

5. The purchaser/petitioner resisted the claim of respondent No.5 on the ground that even before filing of an application for pre-emption he had also purchased plot No.5126 on 19-10-1982. By reason of the sale deed executed on 19-10-1982 he also became an adjacent raiyat of a plot of land adjacent to the land purchased by him, since plot no.5126 purchased by him on 19-10-1982 was adjacent to plot No.5124 purchased by him earlier in respect of which pre-emption was claimed. The deputy Collector, Land Reforms, rejected the application for pre-emption holding that since the petitioner was himself an adjacent raiyat, an application for pre-emption by another adjacent raiyat against him was not maintainable under the Act. The order dismissing the pre-emption application was challenged in appeal, which was disposed of by the Additional Collector, who held that though the sale deed in respect of plot No.5126 was executed on 19-10-1982, it was presented for registration on 12-11-1982. Before that, on 11-11-1982 an application for preemption had been filed by respondent no.5 in exercise of his right under Sec.16 (3) of the Act. On the date of the application filed under Sec.16 (3) of the Act, the petitioner could not claim to be an adjacent raiyat, because though a sale deed had been executed in his favour in respect of an adjacent plot, the sale deed had not been presented for registration by the time the application for pre-emption was filed. On such finding, holding respondent No.5 to be an adjacent raiyat, he allowed the appeal and consequently allowed the application for pre-emption. The appellate order has been affirmed by the revisional authori