ORDER : Heard counsel for the parties. 2. This writ petition has been filed by the petitioner with a prayer for quashing the order dated 21.12.2005 (Annexure-6) passed in Revision Case No. 26 of 2005 by the respondent No. 2 i.e. Member, Board of Revenue, Jharkhand Ranchi, whereby the said Authority has set aside the appellate order dated 9.6.2005 passed in land ceiling Appeal No. 8 of 2004 which in turn was passed by the Additional Collector, Hazaribagh. The petitioner further prays for quashing the order dated 7.2.2004 (Annexure-4) passed in land Ceiling Case No. 13 of 2003 by the respondent No. 4 i.e. Deputy Collector Land Reforms, Hazaribagh, whereby the claim of the petitioner being the pre-emptor of the land under Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 has been rejected. 3. The brief facts involved in this case as submitted by the petitioner is as follows :- (a) Deonarayan Pandey husband of Bilwanti Devi @ Bimla Devi was cousin brother of Kedar Pandey @ Kedar Nath Pandey, the petitioner herein and they were co-sharer of their ancestral property. (b) After partition and after the death of Deonarayan Pandey, Bilwanti Devi inherited the property. Bilwanti Devi got the entire landed property including the property involved in this case, bearing Khata No. 5, Plot No. 280 measuring area 0.78 acres by filing title suit No. 31/37 of 1967/72 wherein the petitioner was defendant No. 6. (c) Said Bilwanti Devi transferred the land, in question, to her brothers Bhuneshwar Tiwari, Shashibhushan Tiwary and Yudhsishthir Tiwari by means of gift deed dated 3.7.1995. (d) Admittedly, the neither the writ petitioner nor the contesting respondent herein are related to Bhubneshwar Tiwari, Shashibhushan Tiwari and Yudishthir Tiwari. (e) Subsequently, Bhuneshwar Tiwari, Shashibhushan Tiwari and Yudhishthir Tiwari transferred the said land in favour of the Dahni Devi wife of Bhuneshwar Gope vide registered sale-deed dated 20.6.2003. Said Dhani Devi was respondent No. 6 in this writ petition who has now been substituted by her legal heirs and successors. A copy of the said sale-deed is annexed at Annexure-1 to the writ petition. (f) From the perusal of the said sale-deed, it appears that the sale-deed mentions about the gift deed dated 3.7.1995 and the boundary of the property of the land is mentioned as : North: Jagatnarayan Pandey & Others. South: Kedar Pandey & Others. A copy of the said sale-deed is annexed at Annexure-1 to the writ petition. (f) From the perusal of the said sale-deed, it appears that the sale-deed mentions about the gift deed dated 3.7.1995 and the boundary of the property of the land is mentioned as : North: Jagatnarayan Pandey & Others. South: Kedar Pandey & Others. East: Rupan Gope & Others. West: Kamakhya Pandey & Others. (g) It is a specific case of the petitioner that as per the deed itself towards the South the name of the petitioner appears as Kedar Pandey and further the petitioner has stated at para 4(g) of the writ petition that since the land in question is the ancestral property of petitioner and hence he is the co-sharer of the property of late Deonaranayan Tiwari/Bilwanti Devi. However, during the course of the arguments, the petitioner admit that the petitioner has no relation with Bilwanti Devi @ Bimla Devi wife of Deonarayan Tiwari and he cannot be termed as co-sharer of the vended property. (h) The petitioner filed a case before the Deputy Collector land reforms under Section 16(3) of the aforesaid Act which was numbered as L.C. Case No. 13/03 against the purchaser of the property i.e. original respondent No. 6 namely Dahni Devi vide sale deed dated 20.06.2003. (i) Notice was issued in L.C. Case No. 13 of 2004 to the Smt. Dahni Devi, she appeared before the said authority and disputed the claim of the petitioner Kedar Pandey. (j) The LC case No. 13 of 2003 was decided by Deputy Collector land reforms vide order dated 7.2.2004 whereby the application filed by the writ petitioner was dismissed by holding that there has been no violation of the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 by the vendors of Smt. Dahni Devi in selling the property, in question. It was held that in the sale-deed itself it has been recorded that towards the Eastern boundary the property belongs to Rupan Gope ancestor of the husband of Smt. Dahni Devi namely Bhubaneshwar Gope and accordingly the husband of Smt. Dahni Devi was the adjoining raiyat of the property. It was held that in the sale-deed itself it has been recorded that towards the Eastern boundary the property belongs to Rupan Gope ancestor of the husband of Smt. Dahni Devi namely Bhubaneshwar Gope and accordingly the husband of Smt. Dahni Devi was the adjoining raiyat of the property. (k) Against the said order dated 7.2.2004 an appeal was filed by the petitioner being Appeal case No. 8 of 2004 before the respondent No. 3 i.e. Additional Collector, Hazaribagh and the said authority after hearing the parties allowed the appeal vide order dated 9.6.2005. The appeal was decided in favour of the writ petitioner herein on the ground that from the perusal of the sale-deed it is apparent that the writ petitioner is adjoining raiyat of the property, in question, and also on the ground that the property, in question, has been purchased in the name of Dahni Devi and the adjoining plot being in the name of her husband, Dahni Devi cannot be termed as adjoining raiyat. (l) Against the aforesaid order passed by the Appellate Authority a revision petition was filed before the Member of Board of Revenue, Jharkhand by Smt. Dahni Devi which was numbered as Revision Case No. 26 of 2005. (m) The specific case of Smt. Dahni Devi before the revisional Court was that her husband had purchased the land in her name and her husband is the raiyat of the land adjoining to the disputed land and accordingly the appellate authority was not right in holding that the Smt. Dahni Devi was not the adjoining raiyat. Before the revisional Court she has not denied that the petitioner i.e. the pre-emptor was a raiyat of the land adjoining to the disputed land. The revisional authority dismissed the revision by the impugned order dated 21.12.2005. 4. The counsel for the petitioner while referring to the impugned order dated 21.12.2005 submits that as follows :- (i) The revisional authority recorded a specific finding that since the claim of Dahani Devi of being raiyat of land adjoining to the disputed land is based on a plot which was purchased in the name of her husband, the onus of making out the case of benami purchase rests upon Smt. Dah. (ii) In Devi and that she did not produce evidence to show that her husband purchased the disputed land in her name. (ii) In Devi and that she did not produce evidence to show that her husband purchased the disputed land in her name. (iii) Accordingly her claim that the property in question was the benami property of her husband was disbelieved by the revisional authority. (iv) The revisional authority further recorded that the petitioner had established the status as a raiyat of the land adjoining to disputed land. (v) But inspite of recording these findings the revisional authority set aside the order passed by the appellate authority which was passed in favour of the writ petitioner. (vi) The counsel for the petitioner submits that from the perusal of the impugned order dated 21.2.2005, it appears that, however, the findings of the order is in favour of the petitioner but still the order of the appellate Court was set aside. Learned counsel for the petitioner relied upon the judgment reported in : (I) 1969 (2) PLJR 517 (II) 1986 PLJR 763 (III) AIR 1984 PATNA 268 5. Learned senior counsel appearing for the substituted heirs of respondent No. 6, on the other hand, relied upon the Section 2(ee), 2(g) and 2(k) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and submits that the definition of family includes the spouse and as the adjoining land belongs to her husband so she is the co-sharer of the adjoining and hence comes within the meaning of adjoining raiyat of the property purchased by her. It is submitted that in this view of the facts there was no violation of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 in purchase of the property by Smt. Dahni Devi. The respondent has relied upon the judgment reported in 1999 BWR 115 to show that the right under the law of pre-emption is a weak right and only if the claimant makes out a fool proof case he can succeed. He has relied upon the paragraph 4 of the said judgment and referred to the object of the aforesaid Act itself. 6. He has relied upon the paragraph 4 of the said judgment and referred to the object of the aforesaid Act itself. 6. After hearing the counsel for the parties, this Court allows the writ petition filed by the petitioner on account of following facts and reasons :- (a) It will be useful to quote the relevant provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, which reads as follows :- Section 2(ee) : "family" means and includes a person, his or her spouse and minor children. Explanation I - In this clause the word person includes any company, institution, trust, association or body of individuals whether incorporated or not, Explanation II - The personal law shall not be relevant or be taken into, consideration in determining the composition of the family for the purposes of the Act; Section 2(g) : "Land Holder" means a family as defined in Clause (ee) holding land as raiyat or as under-raiyat or a mortgage of land in possession of holding land permanently settled by Government or lessee or land not resumable by Government; Section 2(k) : “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 be hired servants or with aid of partners, and includes also the successors in-interest or persons who have acquired such a right and includes, in the district of Santhal Parganas, a village head man in respect of his private land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1908 (Ben. Act VI of 1908), applies, a Mundari, Khuntkattidar or a Bhuinhar. Section 16. Restriction on future acquisition by transfer; etc.-(1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area. Explanation. - For the purpose of this section "Transfer" does not include inheritance, bequest or gift. Explanation. - For the purpose of this section "Transfer" does not include inheritance, bequest or gift. 2(i) After the commencement of this Act, no document incorporating any transaction for acquisition or possession of any land by way of transfer, exchange, lease, mortgage, agreement or settlement shall be registered, unless a declaration in writing duly verified is made and filed by the transferee before the registering authority under the Indian Registration Act, 1908 (XVI of 1908), as to the total area of land held by himself or through any other person any where in the State. (ii) No such registering authority shall register any document evidencing any transaction if, from the declaration made under Clause (i), it appears that the transaction has been effected in contravention of the provision of sub-section (1). (iii) No land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accordance with provisions of the Indian Registration Act, 1908 (XVI of 1908). Explanation.-Nothing in this subsection shall be deemed to have any effect on the provisions of the tenancy law of the area relating to transfer, exchange, lease, mortgage, agreement or settlement. (3)(i) When any transfer of land is made after the commencement of the Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of 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 per cent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pending for decision : Provided that where the application is rejected, the co-sharer or the raiyat, as the case may be, shall be evicted from the land and possession there of shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under Clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order XXI, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed. (b) Admittedly the condition for making an application under Section 16(3) of the aforesaid Act has been complied with by the writ petitioner by depositing a sum of 10 percent of purchase money in the prescribed manner. (c) The specific case of Smt. Dahni Devi (the purchaser) is that the adjoining property belongs to her husband and by virtue of this she is the co-sharer of the adjoining property and hence an adjoining raiyat. It is found that no such plea was ever taken by Smt. Dahni Devi before the authorities below. Rather the specific plea was that her husband had purchased the property in her name and the property was the benami property of her husband and her husband was the adjoining raiyat of the property and accordingly the property was rightly purchased by her husband in her name. This plea was rejected by the revisional Court on the ground that the plea of benami property was required to be proved by Smt. Dahni Devi and there was no evidence to that effect. (d) Otherwise also the said plea, which has raised for the first time by the respondent herein before the writ Court, is fit to be rejected considering the definition of “raiyat” as defined under Section 2(k) of the said Act. (d) Otherwise also the said plea, which has raised for the first time by the respondent herein before the writ Court, is fit to be rejected considering the definition of “raiyat” as defined under Section 2(k) of the said Act. From the definition of “raiyat”, it means primarily a person who has acquired right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners. This definition does not include wife of a raiyat and accordingly the Smt. Dahni Devi could not have claimed the status of adjoining raiyat on the basis of the fact that the adjoining land of the disputed property stood in the name of her husband by virtue of his ancestral property. The definition of family which includes spouse also does not help Smt. Dahni Devi in any manner as the term family has not been used in Section 16(3) of the said Act. The term which has been used is raiyat which has been defined under the Act. The definition of the term "land holders" also does not help Smt. Dahni Devi in any manner as this term has not been used in Section 16(3) of the said Act. Accordingly it is my considered view that Smt. Dahni Devi cannot be held to be an adjoining raiyat as claimed by the counsel for the respondent for the first time in the writ proceedings. (e) In the judgment reported in 1969 (2) PLJR 517, it was a specific case where the sale-deeds in connection with the disputed property was sold to three ladies and their husbands were raiyats of the adjoining lands. The claim of the said ladies to be raiyats of the adjoining land was rejected by the Hon'ble Patna High Court by holding that they could not prove that they were co-sharers of the property vended or that they were the raiyats of the adjoining land. The ratio of the judgment fully applies in the care in hand. Here also Smt. Dahni Devi has failed to establish that she is an ad-joining raiyat or she is a co-sharer of the vended property so as to deny the claim of pre-emption to the petitioner. The ratio of the judgment fully applies in the care in hand. Here also Smt. Dahni Devi has failed to establish that she is an ad-joining raiyat or she is a co-sharer of the vended property so as to deny the claim of pre-emption to the petitioner. (f) In the judgment of Hon'ble Patna High Court in the case reported in 1986 PLJR 763 it has been held that merely because the husband is the adjoining raiyat the wife cannot claim protection as adjoining raiyats of the land. In the said judgment it has been held that land purchased in the name of wife cannot be deemed to be of her husband's unless a case of benami purchase is made out and established and the wife cannot protect her lands from adjoining raiyats and on the plea that her husband is also adjoining raiyat. (g) In judgment reported in AIR 1984 Pat 268 it has been held following judgment reported in AIR 1969 SC 244 that application for pre-emption cannot be dismissed on the technical ground of non-compliance of Rule 19 and form L.C. 13. 7. The judgment reported in 1999 (1) BLJR 115 relied upon by the respondent does not help the respondent in any manner. In that case it has been held that right of pre-emption is a weak right And unless pre-emptor makes out a full proof case, he cannot succeed. 8. The right of preemption is a statutory right and is mandatory in nature. This view has been taken by Hon'ble the Supreme Court in the judgment reported in (2016) 6 SCC 441, the relevant portion of which is quoted herein below for ready reference : "20. The learned Single Judge deciding the writ petition and the Division Bench of the High Court deciding the LPA appear to have taken a view that the right of pre-emption is a weak right, presumably because the Division Bench of the Patna High Court in Sudama Devi v. Rajendra Singh and the learned Single Judge in Ram Pravesh Singh v. Board of Revenue have taken this view. Whatever may have been the views of the Patna High Court and this Court in the earlier decisions cited by the learned counsel for respondent 1, a five-Judge Bench of this Court in Shyam Sunder v. Ram Kumar has now held that where a right of pre-emption is recognised by statute, it has to be treated as mandatory and not discretionary. The relevant passage from the judgment in Shyam Sunder v. Ram Kumar is quoted hereinbelow : (SCC pp. 37-38, para 17) "17. ... The right of pre-emption of a co-sharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the co-owner of the land. The main object behind the right of pre-emption, either based on custom or statutory law, is to prevent intrusion of a stranger into the family holding or property. A co-sharer under the law of pre-emption has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him, meaning thereby that where a co-sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of pre-emption prevails. Such a right at present may be characterised as archaic, feudal and outmoded but this was law for nearly two centuries, either based on custom or statutory law. It is in this background the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary." Thus, even if there has been a long lapse of 19 years, the High Court could not have rejected the claim of the appellant for pre-emption when the claim was recognised by the statute, had been lodged in accordance with the statute and within the time prescribed by the statute and in the manner provided by the statute." 9. In view of the submissions made by the learned counsel for the parties, I am of the view that the writ petitioner has satisfied the requirement of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and accordingly he was entitled for the relief in connection with his right of pre-emption. In view of the submissions made by the learned counsel for the parties, I am of the view that the writ petitioner has satisfied the requirement of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and accordingly he was entitled for the relief in connection with his right of pre-emption. The said right is his statutory right and mandatory in nature which could not have been denied to him under the facts and circumstances of the case. 10. Moreover I fully agree with the arguments of the counsel for the petitioner that from the perusal of the impugned order passed by the revisional authority, it appears, that although the findings were recorded in favour of this writ petitioner but still the revisional authority had set -aside the order of the appellate authority. 11. Accordingly the writ petition is hereby allowed. The impugned order dated 21.12.2005 (Annexure-6) passed in Revision Case No. 26 of 2005 by the respondent No. 2 i.e., Member Board of Revenue is set aside to the extent it sets aside the appellate order dated 9.6.2005. Further the order dated 7.2.2004 (Annexure-4) passed in Land Ceiling Case No. 13 of 2003 by the respondent No. 2 i.e., Deputy Collector Land Reforms, Hazaribagh is also set aside and it is held that petitioner being the pre-emptor is entitled to relief under Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. Petition allowed.