A purchaser can only resist a pre-emption claim under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 if they are either a cosharer of the land transferred or an adjoining raiyat of the entire land transferred.

Satya Brata Sanyal. J.-This writ application is at the instance of the purchasers. It arises out of a proceeding under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter to be referred to as "the Act".

2. For determination of the question involved in this writ petition, facts in detail are not necessary. Suffices it to say, on 7.12.1972 (Annexure 4) petitioner no.1 purchased plot nos. 1484, 1416, 7094, 19 and 26, a total area of 82 decimals situated in village Haldi Chapra, P. S. Maner, district Patna. Admittedly these are plot scattered at different places and do not constitute one block. Petitioner no. 1 claimed to be adjacent raiyat of plot nos. 1416 and 7094 being owner of plot no. 1415 and plot no. 7. Petitioner no. 1 claims that he is joint with his brother Police Rai and others. They are all sons of Dhorha Rai, who is the grandson of Jodhan Rai. It is, therefore, said that even thought the name of Police Rai appears in the records with respect to adjacent plot nos. 1415 and 7, be is joint with his brother and he is to be treated as an adjacent raiyat. Petitioner no. 1 claims that he being an adjacent raiyat of two plots purchased under a composite sale deed his purchase cannot be nullified by the pre-emptor, who is admittedly a cosharer of all the plots conveyed by Annexure 4.

3. The respondents' case, on the other hand, is that petitioner no.l is not an adjacent raiyat even of plot nos. 1416 and 7094 which, is manifest from Annexure 4 itself. The documents relied upon to show joint ness are not decisive. Section 16(3) of the Act does not apply to khata but to the plot. Many persons can have land in the same khata and thereby all of them cannot claim to be co sharers having contiguous land. It was alternatively submitted that assuming that petitioner no. 1 is adjacent to two plots he cannot resist the right of pre-emption by a person who is a cosharer of all the plots and there being no provision for apportionment, the purchaser even though adjacent to two plots cannot resist the claim of the pre-emptor with respect to the entire sale deed.

4. The learned Member, Board of Revenue, rendered the finding that petitioner no: 1 was not joint with Police Rai. Therefore, he cannot resist the application for pre-emption, upholding the decision of the Additional Collector. The courts below did not apply their mind to the question I will just advert. Even learned counsel for the petitioners tried to establish before me that petitioner no.1 is joint with Police Rai. Therefore, the application for preemption is not maintainable whereas counsel for the respondents tried to dislodge the said proposition.

5. One of the objects of the Act is to secure consolidation by giving the right of reconveyance to a cosharer or a raiyat of the adjoining area so that the land can be used in the most advantageous manner and, also to prevent fragmentation of the land [See Hira Lal Agarwal v. Ram Padarath Singh (1968 P. L. J. R. 68A S. C.)]. The pre-emptor is bound to show not only that his right is as good as that of the purchaser but that it is superior to that of his [See Bishan Singh v. Khajan Singh (A. I. R. 1958 Supreme Court 838)]. In the case of Ram Chandra Srivastava v. Prasidh Narain Singh (1970 P. L. J. R. 579) a Full Bench of this Court held that the right that can be claimed by a preemptor is after fulfillment of certain conditions, namely, (a) there has been a transfer of land by execution and registration of a document; b) the transferee is neither a co. sharer in respect of the transferred land nor a raiyat of any adjoining land; (c) the person claiming to be entitled to be put in. possession of the transferred land must himself be a cosharer of the transferor or a raiyat holding land adjoining the land transferred and (d) the pre-emptor must present an application in the prescribed form along with a challan showing a deposit of the sum equivalent to the pur