H.L. AGRAWAL, J

1. This application arises out of a proceeding for pre–emption started under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, (for short 'the Ceiling Act'). The purchasers are the petitioners. They purchased 27.05 acres of land from one Sakoor Sah (Respondent No.5) appertaining to plot nos. 1309, 929 and 732 of Khata No. 267 through a registered deed of sale dated 6.1.1975.

2. Respondent No.4 Chhotan Sah then filed the application of pre–emption against the petitioners on the ground that he was a cosharer of the vendor as well as a raiyat of the adjoining lands. The claim of being a cosharer is on the basis of his being the descendent of the common ancestor Bhattu Sah and thus being a member of the same Mohammedan family. He claimed to be an adjoining raiyat on the basis of an oral gift alleged to be made by his father, supported by an affidavit of his father Ramzani.

3. The defence of the petitioners was that (1) the pre–emptor being a Mohammedan had no interest in the property of his father during his life time and therefore, he could not be said to be a cosharer and (2) the affidavit filed by father of the pre–emptor was motivated and intended to defeat the provisions of the Ceiling Act. Undisputedly the pre–emptor had got no land in his own name in the boundary of any of the plots.

4. The case of the pre–emptor was rejected by the Land Reforms Deputy Collector, Nawadah by his order dated 31.7.1976 (Annexure-1). He recorded the following finding:–

(i) It could not be said with certainty as to whether Ramzani was actually a cosharer of all the plots in question.

(ii) There was nothing on the record to show that he was an adjoining raiyat of one plot no.1309 also.

He rejected the claim of the pre–emptor on the basis of oral gift by his father on the view that the Ceiling Act, prohibited transfer even by a Mohammedan by an oral gift.

5. Respondent No.4 then filed an appeal before the Additional Collector, Nawadah, Respondent No.2 which was allowed. The petitioners challenged the order of the Additional Collector before the Board of Revenue but lost at the stage also. The appellate order and that of the Additional Member, Board of Revenue are Annexure 2 & 3 respectively.

The Additional Collector accepted the story and the validity of the oral gift, as under the Mohammedan Law that was permissible, although he does not appear to have accepted the claim of pre–emptor of being a cosharer. The learned Additional Member, Board of Revenue, has gone a step further and on reading the definition of the expression "raiyat" under the Ceiling Act, which I shall deal hereinafter, has held the pre–emptor to be a "raiyat" as being a successor–in–interest of his father during his life time. The Member Board of Revenue, also stated that the petitioner in the revision petition [Paragraph 7 (iv)] had admitted that the further of the pre–emptor was an adjoining raiyat of plot nos. 1309 and 929. As regards the third plot, namely, 732 the father of the pre–emptor was already shown in the boundary. He accordingly held that the pre–emptor was thus boundary tenant of all the three disputed plots.

6. Before I proceed to consider the contentions advanced before me and the points arising in this case, I may refer to some of the relevant statutory provisions which would govern this case. First, I would refer to two sections of the Bihar Tenancy Act, namely, sections 12 and 26A which read as follow:–

"12. Voluntary transfer of permanent tenure.

(1) A transfer of a permanent tenure by sale, gift, exchange or mortgage other than a transfer by a sale in execution of a decree or by summary sale under any law relating to patni or other tenures can be made only by a registered document."

(2) XX XX XX XX

(3) XX XX XX XX

(4) XX XX XX XX

"26A. Transfer and bequest of occupancy holdings or portions there of.

(2) Every transfer of an occupancy-holding or a portion thereof, together with the right of occupa