JUDGMENT : Nilu Agrawal, J. This intra-court appeal has been preferred by the unsuccessful writ petitioner against the order dated 06.12.2010 passed by the learned Single Judge in C.W.J.C. No. 10728 of 2010 (Ram Sagar Rai v. The State of Bihar & Others), whereby the learned Single Judge has dismissed the writ petition thereby allowing the pre-emption application in favour of the pre-emptor, Respondent No.5, deceased Bhola Rai. 2. Heard learned counsel for the appellant and the learned counsel appearing on behalf of the State as well as learned counsel appearing on behalf of private respondent-pre-emptor-Respondent No.5, substituted by his legal heirs by order dated 06.09.2016, who had filed the pre-emption application, seeking pre-emption of the lands purchased by the appellant from Respondent no.6, Nuza Rai. 3. The short history of the case is that the land in question was part of ancestral land belonging to one Faujdar Rai, who has two sons, namely, Shivdhani Rai and Anandi Rai. While Anandi Rai had three sons, Bhola Rai (original Respondent No.5), Mahadev Rai and Shankar Rai, Shivdhani Rai had one son, Nuza Rai (Respondent No.6). Thus, original Respondent No. 5 and Respondent No.6 were brothers. Respondent No.6, after partition, out of total land of 14 decimals, got a share of 7 decimals. Appellant purchased part of 7 decimals of such ancestral land from Respondent No.6 measuring an area of 2 katha 10 dhurs executed by sale deed dated 12.05.1989, appertaining to Khata No. 23, Khesra No. 615, 616 (Old) and 884, 885 (New) situated in village Dadhiya Belar, P.S. Muffassil, District – Samastipur for a consideration of Rs. 15,000/-. In the sale-deed, the land was described as Kasth Kayani. Soon thereafter, after execution of sale deed, original Respondent no.5 filed a pre-emption application to pre-empt the lands sold by Respondent no.6 to the appellant before the learned Deputy Collector Land Reforms, Samastipur, bearing Ceiling Case No. 03 of 1996 under Section 16(3) of the Bihar Land Ceiling Act, 1961 (hereinafter referred to as the Act), challenging the sale deed dated 12.05.1989 and stating therein that he being the adjoining raiyat, is entitled to pre-empt the land in question, so sold. From the sale deed, it appears that the land of 2 katha 10 dhurs purchased by the appellant was bounded on the North by Yadu Paswan, South was Road, East was one Raso Rai and West was Nij i.e. land belonging to Nuza Rai. The pre-emptor stated before the Deputy Collector Land Reforms that "Nij" was wrongly recorded in the sale deed, as he being the adjoining raiyat, it was his land and cattle shed and that out of ancestral land i.e. 14 decimals, Respondent No.6 owned share of 4 decimals, at best his share was 7 decimals, but he has sold 11 decimals of land to the appellant, hence, his pre-emption application be allowed. However, said dispute of ownership, interest and title on the land could not be looked into in pre-emption matter under Section 16 (3) of the Act, as rightly observed by the learned DCLR. As pointed out by the appellant, that the nature of land was homestead and there was one thatched hut and cattle shed existing on the said land, which has also been admitted by the pre-emptor that there was a cattle shed. Thus, learned DCLR having found the land to be homestead rejected the pre-emption application filed under Section 16(3) of the Act as not maintainable by order dated 12.12.1996. Against the said order, Respondent No.5 preferred appeal being Land Ceiling Appeal No. 182 of 1996-97/ 12 of 1999-2000, where under, writ petitioner-appellant had appeared initially, but thereafter left making pairvi, hence, the appeal was decided ex parte in favour of Respondent by order dated 23.08.2001. The revision so preferred by the writ petitioner-appellant before the Additional Member Board of Revenue, Bihar in Board Revenue Case No. 12 of 2002 also suffered the same fate and was rejected summarily by order dated 26.09.2008. Being aggrieved by the said order, writ petitioner-appellant preferred writ application before this Court. The learned Single Judge taking into consideration that in the Record of Rights the land in question was shown "Bheeth" land which would be agricultural land, and, that even if the land is homestead but belonging to raiyat, it can be used for agricultural purposes, held, proceedings under Section 16(3) of the Act would be maintainable and, thus, dismissed the writ application, which has been challenged in the present intra-court appeal. 4. 4. The order of the learned Single Judge is liable to be set aside on two grounds, which I may refer a little later. Certain intervening facts also assume importance. The appellant had also filed Title Suit No. 17 of 2009 against Respondent No.5 and others before the competent Civil Court but withdrew it on 29.07.2010 on the ground that writ petitioner-appellant had moved this Court against the order of the Additional Collector, Samastipur dated 23.08.2001 and order of the Additional Member Board of Revenue, Bihar dated 26.09.2008. However, during course of hearing and pendency of Title Suit No. 17 of 2009, Advocate Commissioner was appointed to ascertain the nature of the disputed land, who submitted his report dated 10.05.2010 clearly stating that the disputed land is homestead and not agricultural land and there is house, cattle shed and orchard of the writ petitioner-appellant. 5. Now, coming to the issues. Firstly, the learned Single Judge did not take into consideration the nature of the land as on his own showing Respondent No. 5 had shown the land to be a cattle shed and the Advocate Commissioner so appointed in Title Suit No. 17 of 2009 also found the land to be homestead having a house, cattle shed and orchard. Secondly, Respondent No.6 had sold part of the ancestral land coming in his share being an area of 2 katha 10 dhurs to the writ petitioner-appellant. Such a fragmental piece of land of 2 katha 10 dhurs could not be used for agricultural purposes as the intent of Section 16(3) of the Act is a beneficent legislation, intended to prevent fragmentation of holding and to facilitate consolidation with a view to utilization of land in favour of a co-sharer or a raiyat of adjoining land for agricultural purposes. The pre-emptor can claim pre-emption as being a raiyat or co-sharer of adjoining land only for its use for agricultural purposes. Such land had all along been homestead as also agreed by Respondent No.5 before the learned DCLR and also found by the Advocate Commissioner in his report, which was submitted in pursuance to the order passed by the Civil Court in Title Suit No. 17 of 2009. The sale deed itself showed the western boundary to be of Respondent No.6 and lastly fragment or small piece of 2 katha 10 dhurs of land could not have been used for agricultural purposes. The sale deed itself showed the western boundary to be of Respondent No.6 and lastly fragment or small piece of 2 katha 10 dhurs of land could not have been used for agricultural purposes. The original Respondent No.5 was claiming right, title and interest on the land purchased by the appellant claiming to be his land which is not maintainable under Section 16(3) of the Act. These factors the learned Single Judge did not consider while passing the impugned order. 6. Accordingly, order of the learned Single Judge dated 06.12.2010 passed in C.W.J.C. No. 10728 of 2010 as also order dated 26.09.2008 passed by the Additional Member Board of Revenue, Bihar in Board Revenue Case No. 12 of 2002 and the order dated 23.08.2001 passed by the Additional Collector, Samastipur in Land Ceiling Appeal No. 182 of 1996-97/12 of 1999-2000 are set aside. The order of the learned DCLR passed in Ceiling Case No. 03 of 1996 dated 12.12.1996 is upheld and the appeal is allowed. Navaniti Prasad Singh, J. - I agree.