Judgment BIRENDRA PRASAD SINHA, J. The petitioner purchased 42 decimals of land appertaining to plot No. 1244, khata No. 666 situate in village Ratangarh, police Station Sahar in the district of Bhojpur from respondent No.3 Keshavendra Pratap Singh Respondent. No.2. Dulhin Basamatia alias Basmato Devi filed an application under section 16(3) of the Bihar Land Reform (Fixation of Ceiling Area and Aquisition of Surplus Land) Act, 1961 (hereinafter called the, Ceiling Act) before the Deputy Collector, Land Reforms claiming to be an adjoining Raiyat The Deputy Collector. Land Reforms allowed the application on 30.10.1978 (vide Annexure 1). The appeal filed by the petitioner was dismissed on 20.11.1978 by the Collector (vide Annexure 2). The petitioner's revision Application before the Board of Revenue also failed (vide Annexure 3). The petitioner has, therefore, challenged the three orders contained in Annexure 1, 2 and 3 and has prayed that they should be quashed. 2. The petitioner has claimed that he is a Sikmidar of plot No. 1244 and adjoining plot No. 1243 and has been continuing in actual physical cultivating possession of these plots. Apart from this the petitioner claimed to have constructed it house over the disputed plot which was adjacent to his ancestral house. It was submitted on behalf of the petitioner that since) he was an under-raiyat of the plot in question being a Sikmidar he had acquired all the rights and privileges of a raiyat and, therefore, the application for preemption against him was misconceived and not maintainable. The other ground on which this application is founded is that the vendor respondent No. 3 was not impeded as a party by the pre-emptor respondent No.2, before the Deputy Collector, Land Reforms. His application, therefore, was not maintainable at all. 3. The other ground on which this application is founded is that the vendor respondent No. 3 was not impeded as a party by the pre-emptor respondent No.2, before the Deputy Collector, Land Reforms. His application, therefore, was not maintainable at all. 3. The Ceiling Act, provides for fixation of ceiling, restriction on sub letting and resumption by certain raiyats for personal cultivation of land acquisition of status of raiyat by certain under-raiyats, and acquisition of surplus land by the state and matters connected therewith Section 16 or the Ceiling Act, puts certain restrictions on future acquisition by transfer Sub-section (3) of section 16 confers certain preferential rights on a co-shares or an adjoining raiyat and it reads as under : "When any transfer of land is made after the commencement of this Act, to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat bolding land adjoining the land transferred shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before, the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period." The question for consideration is whether the word "raiyat" used in section 16(3) in clouds an under-raiyat also and whether an adjoining under-raiyat or an under-raiyat of the vended property is also entitled to the preferential right conferred on a co-sharer or a raiyat ? It was contended that law does not make a distinction between a raiyat and an under-raiyat is this regard inasmuch as the dominant object of the Act, is to discourage fragmentation of holdings and to encourage productivity. 4. According to Bihar Tenancy Act, there are several classes of tenants such as tenure holders, including under-tenure holders, (1) raiyats, and (3) under-raiyats, that is to say tenants holding, whether immediately or immediately, under-raiyats. 4. According to Bihar Tenancy Act, there are several classes of tenants such as tenure holders, including under-tenure holders, (1) raiyats, and (3) under-raiyats, that is to say tenants holding, whether immediately or immediately, under-raiyats. There are three types of raiyats, namely, (a) raiyats holding at fixed rates, which expression mean, raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity; (b) occupancy raiyats that is to say raiyats, having a right of occupancy in the land held by them, and (c) non-occupancy raiyats that is to say, raiyats not having such a right of occupancy. "Raiyat" has been defined in section 5 of the Bihar Tenancy Act, which means primarily a person who bas acquired a right to hold land (or the purpose of cultivating it by himself, or by members of his family or by hire servants, with the aid of partners, and includes also the successor-in-interest of persons who have acquired such a right. It attaches to it an explanation which reads as under :- "Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or for grazing cattle on it." Bihar Tenancy Act, does not give the definition of under-raiyat. The Ceiling Act, which was enacted in 1961 has virtually reproduced the definition of "raiyat" given in the Bihar Tenancy Act. It reads as under:- "raiyat' means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with aid of partners and includes also the succssors-in-interest or persons who have acquired such a right and includes, in the district of Santhal Parganas, village headman in respect of his, private land if any but does not include the areas to which the Chotanagpur Tenancy Act. 1908 applies. 1908 applies. According to the Bihar Tenancy Act, an under raiyat means a tenant holding whether immediately or mediately, under raiyat, According to section 2(n) of the Ceiling Act, the words and expression used but not defined in this Act, shall have in their application to any area in which Bihar Tenancy Act, 1885 is in force, the same meaning as are assigned to them in that Act. 5. A Full Bench of this Court in Dr. Sudhir Kumar Mukherjee Vs. Nirsi Dhobin and other stated that the word "under raiyat" has not been defined in the Bihar Tenancy Act, and reason was that the word "raiyat" having been defined it was not necessary to define "under raiyat" because the purpose of his tenancy must also be the same as that of the Raiyat. It was observed that an under raiyat must hold his lands also for the purpose for which a person must acquire the right to held his land in order to come within the definition of "raiyat". Thus a person cannot be an under-raiyat within the meaning of the Bihar Tenancy Act, unless he is a tenant and holds lands for agricultural purpose. There is no denial of the fact that a Sikmidar is an under-raiyat as he holds and possesses the land for agricultural purpose, In the case of Doma Singh and others Vs. jaigovind Pande it was held that a Sikmi-dakhildar was an under raiyat having occupancy rights in respect of the holding. The petitioner's claim is that be is a Sikmidar and is in cultivating possession of the disputed and the adjoining plots. That being so, it must be held that he enjoys all the rights and privileges of a 'raiyat'. 6. Under section 16(3) of the Ceiling Act, the right of pre-emption cannot be enforced against a co-sharer or an adjoining raiyat. If the claim of the petitioner is true that be is a Sikmidar in cultivating possession of the adjoining plot of the vended property, then respondent No.2 the pre-emptor cannot enforce this right of pre-emption. The learned Additional Member, Board of Revenue, before whom this question seems to have been specifically raised has summarily rejected this contention on a wrong assumption that a Sikmidar is not saved under section 16(3) of the Ceiling Act. 7. The learned Additional Member, Board of Revenue, before whom this question seems to have been specifically raised has summarily rejected this contention on a wrong assumption that a Sikmidar is not saved under section 16(3) of the Ceiling Act. 7. It has been specifically asserted in paragraph 3 of the writ petition that the petitioner is a recorded raiyat as Sikmidar of the vended plot No. 1244 and the adjoining plot No. 1243 and that he is in physical cultivating possession of said plots for a long time. This fact has not been denied by the respondents. That being so, it must be held that he has acquired the right of occupancy in the vended as well is he adjoining plot of the vended land and is entitled to the protection given to a raiyat of the adjoining plot under the Ceiling Act; The pre-emptor cannot enforce his right against a purchaser who is either a co-sharer or a raiyat of an adjoining plot. The right is also available to an under-raiyat who has acquired the right of occupancy. 3. The other point raised by the learned counsel is that the transferor respondent No.3 was not made a party in the application under section 16(3) of the Ceiling Act. His contention is that the law requires that the transferor and the transferee both shall be made parties in the application under section 16(3) of the Ceiling Act, and the provision being madatory the application under section 16(3) should have been summarily dismissed. 9. An application under section 16(3) of the Ceiling Act, has to be filed in the prescribed manner. Rule 19 of the Bihar Land Ceiling Rules, 1963 provides that the application shall be filed in Form L. C. 13 and the purchase money together with a sum equal to 10 per cent thereof shall be deposited in the Treasury. According to Rule 9(3) a copy of the said application has to be sent simultaneously by the applicant to the transferee and the transferor by Registered Post. According to Rule 9(3) a copy of the said application has to be sent simultaneously by the applicant to the transferee and the transferor by Registered Post. According to Rule 19(4) the Collector shall issue a notice to the transferor end the transferee and the applicant to appear before him on a date to be specified in the notice and after giving the parties concerned a reasonable opportunity to show cause if any, and of being heard shall by an order in writing either allow the application or reject it. The relevant portion of Form L.C. 13 in which the application has to be filed is reproduced below: "To The Collector (appointed under Bihar Act, XII of 1962) .......................... .......................... Sir, I, the under mentioned co-sharer raiyats/raiyat of land adjoining the land of the raiyat. named ..........of village/town ............ P. S.... ...Subdivision......... District.... .......... ...beg to state that transfer of ………acre/acres of land as described in the Schedule I attached hereto has been made by the aforesaid raiyat to a person/persons other than a co-sharer or a raiyat of adjoining land through a document registered on the............day of......19 …under the Indian Registration Act, 1908. The form shows that the details of the land and the transferor has to be given in the application. According to paragraph 2(ii) of this Form a copy of a registered deed by which the land has been transferred by the raiyat transferor has to be enclosed along with the application. 10. All these indicate that the transferor is a necessary party in the application under section 16(3) of the Getting Act. According to the Act, and the Rules the transferor is also entitled to be heard before the application is disposed of. In fact, the provisions contained in section 16(3) of the Act, is a restriction on the right to sell the property by a lawful owner thereof although a reasonable restriction. But, when such a right is sought to be restricted, the person concerned has a right to be heard before an order is passed in respect of any conveyance by him. Besides this, there may be a case in which an owner of a land has not, infact, sold his property and the right of pre-emption is sought to be enforced of the basis of a fake sale deed. Besides this, there may be a case in which an owner of a land has not, infact, sold his property and the right of pre-emption is sought to be enforced of the basis of a fake sale deed. Unless the owner of the property who is supposed to have transferred a particular land is heard in the matter, he will be seriously prejudiced if he is not made. It party in the proceeding. I am, therefore, of the opinion, that in every case of pre-emption not only the transferee but also the transferor is a necessary party and if any of them has not been impleaded as a party, the application must be dismissed at the initial stage being not maintainable. The fact that the transferor was not made a party and notices of the proceeding were not sent to him, has not been denied. The application of respondent No.3 for preemption, therefore, was not maintainable and should have been dismissed on this ground alone. It is well established that right of presumption is a very work right and, therefore; the pre-emptor is required to follow each and every mandate of law. 11. This application, accordingly, succeeds and the orders contained in Annexures 1, 2 and 3 are quashed and set aside. There shall be no order as to costs. Application allowed.