1. The petitioners are the pre-emptors who have challenged the order of the Additional Member, Board of Revenue dated 30.9.2005 passed in Case No. 94 of 2005. By the impugned order, the Additional Member, Board of Revenue has set aside the order of the Land Reforms Deputy Collector dated 5.8.2002 and the order of the Collector dated 22.5.2005, which was in favour of the petitioners.

2. The respondent no. 5 purchased lands appertaining to Khata No. 137, Plot No. 723, measuring 1 (one) acre by a registered sale deed dated 11.2.2002. The petitioners deposited the consideration amount alongwith statutory 10 per cent on 5.6.2002 and thereafter filed an application under Section 16(3) of the Ceiling Act on 6.6.2002, claiming that he is the boundary raiyat and a co-sharer and as such he is entitled to get the lands transferred in his favour.

3. The case of the purchaser, on the other hand, is that the purchaser is an adjoining raiyat having purchased Plot No. 724 by a registered sale deed on 25.6.2001, measuring 13 decimals and 2 acres of lands appertaining to Plot No. 650, and as such the pre-emption application was not maintainable. It is also specifically pleaded that there was partition between the sons of Jalim Yadav and each of the sons had got the lands mutated in their names, and as such it cannot be said that the petitioners who are from the branch of one of the sons, namely, Biranchi Yadav are co-sharers of the father/grandfather of the respondents, namely, Darogi Yadav. The respondents have also objected to the fact that the pre-emption application has been filed beyond the period of three months prescribed under sub-section 3(i) of Section 16 of the Ceiling Act. There is a specific pleading on behalf of the purchaser that after the purchase of the lands, the purchaser has constructed his house on a portion of the lands in question on which one flour mill and godown has been established and is running. The remaining land has been utilized for residential purposes and for the purpose of keeping their cattle, and as such the submission is that the purchaser has already made construction over Plot No. 723 and is utilizing it for running his business as well as he has got his residential house over the disputed land since the date of purchase i.e. for the past eight years.

4. The Land Reforms Deputy Collector condoned the delay in filing the preemption application and thereafter allowed the pre-emption application on the ground that the petitioners are shown in the boundary of Plot No. 723 in the sale deed and as such, are entitled to file the pre-emption application. The Collector, Katihar similarly rejected the appeal of the respondents and upheld the order of the Land Reforms Deputy Collector, Katihar.

5. The questions for consideration before this Court are as follows:

(i) Whether the Challan showing the deposit of consideration amount was within the prescribed period?

(ii) Whether the pre-emptors are co-sharers of the vendors?

(iii) Whether the purchaser holds lands adjoining to the portion of the disputed land?

(iv) Whether the nature of the disputed land is agricultural or homestead land as defined under Section 2 of the Ceiling Act?

6. The first question is whether the Court below could have condoned the delay in filing the pre-emption application and whether the petitioners have adequately explained the delay in filing the pre-emption application. In this context, it would be proper to point out that there was an agreement between the vendors and the purchasers to transfer the lands on 10.3.1991. At that time, the respondent no. 5/purchaser had deposited Rs.98,000/- as advance which was very much within the knowledge of the petitioners. The application has been filed for condoning the delay under Section 5 of the Limitation Act without giving adequate reasons for the delay. The fact that there was an agreement to sell the lands, has not been disputed or denied by the petitioners. The reason for not filing the