JUDGMENT : 1. Heard Mr. Rajiva Sharma, senior counsel assisted by Mrs. Rita Kumari, counsel appearing for the petitioner 2. Heard Mr. Amar Kumar Sinha, counsel assisted by Mr. Kundan Kumar Ambastha, appearing for the respondent no. 5 3. Heard Mr. A.K. Thakur, counsel appearing for the respondent-State. 4. This writ petition has been filed by the writ petitioner challenging the order dated 16.09.2006 (Annexure-1) passed by the Member, Board of Revenue, Jharkhand (Respondent no 2) in Revision (Ceiling) Case No.36 of 2005 whereby and whereunder respondent no. 2 has been pleased to uphold the order passed by the Appellate Authority i.e Deputy Commissioner, Gumla. The appellate authority had set aside, inter-alia, the order dated 26.03.1999(Annexure- 4) passed by the Deputy Collector Land Reforms, Gumla (Respondent no. 4) in pre-emption case no. 1/1995-96 the pre-emption case filed by the present petitioner was allowed. 5. The facts of the case as submitted by the counsel for the petitioner is an under: (a) The petitioner had filed two applications under Bihar Land Reforms (Fixation of Ceiling Area and Acquisition Surplus Land) Act, 1961 bearing Pre-emption Case No. 1 of 1995-96 and Pre-emption case no 2 of 1995-96 under section 16(3) of the aforesaid Act before the Land Reforms Deputy Collector, Gumla on the ground that he was the co-sharer and also the adjoining raiyat of the properties sold vide sale deed no. 876/93 and 875/93 respectively. (b) Both the applications were allowed by the Land Reforms Deputy Collector, Gumla vide order dated 26.03.1999 as contained in annexure 4 to this writ petition. (c) Against the said order dated 26.03.1999 the Respondent no 5 filed appeal before the Deputy Commissioner, Gumla who allowed the appeal being appeal no 1 of 2001-02 and appeal no 2 of 2001-02. The appellate authority vide common order dated NIL passed in Pre-Emption set aside the order dated 26.03.1999. (d) Being aggrieved by the appellate order, the petitioner filed revision Case No. 36 of 2005 before the Member Board of Revenue which was disposed of vide impugned order dated 16.09.2006 as contained in Annexure-1 to the writ petition. (e) The petitioner submits that so far as the relief in connection with sale deed no. 875 of 1993 is concerned the same was allowed in favour of the petitioner but the other relief in connection with sale deed no. (e) The petitioner submits that so far as the relief in connection with sale deed no. 875 of 1993 is concerned the same was allowed in favour of the petitioner but the other relief in connection with sale deed no. 876/93 was denied to the petitioner on the ground that the respondent herein were also the adjoining riayat of the vended property. The petitioner claims that he is the co-sharer as well as the adjoining Raiyat of the vended property and therefore the application for preemption was rightly allowed by the Respondent no 4. The petitioner further submits that it is not in dispute that the respondent no. 5 is also the adjoining raiyat of the property but the boundary of the vended property is larger as compared with that of the Respondent no 5. 6. In support of his contention, the counsel for the petitioner has relied upon the judgment reported in (2010) 6 SCC 441 and with the particular reference to paragraph nos. 20 and 21 which is quoted hereinbelow 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 coowner 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. It is some sort of encumbrance carrying with the land which can be enforced by or against the coowner 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. 21. Respondent 1, however, claims to be a boundary raiyat saying that she had purchased under an earlier sale deed dated 11-1-1980 a plot of land adjoining to the land in respect of which the appellant has applied for pre-emption under Section 16(3) of the Act. The learned counsel for Respondent 1 has relied on the decision of the Patna High Court in Ram Pravesh Singh v. Board of Revenue for the proposition that the claim of pre-emption was not maintainable against a person who holds an adjacent plot of land. This view of the Patna High Court is based upon its earlier judgment in Ramachabila Singh v. Ramsagar Singh that if the transferee happens to be an adjacent raiyat in respect of some other plots, a co-sharer cannot claim any right of pre-emption under Section 16(3) of the Act. As a matter of fact, Section 16(3) confers the right of preemption not only on the co-sharer but also on the raiyat holding land adjoining to the land transferred. As a matter of fact, Section 16(3) confers the right of preemption not only on the co-sharer but also on the raiyat holding land adjoining to the land transferred. We are, however, of the considered opinion that a complete stranger who was not originally a raiyat holding land adjoining to the land transferred cannot be allowed to defeat the right of pre-emption of a co-sharer by first purchasing an adjoining plot of land and thereafter claiming to be a raiyat holding land adjoining to the land transferred. The decisions of the Patna High Court are cases of original boundary raiyats resisting the claim of pre-emption by a co-sharer of the transferred land. The object of Section 16(3) of the Act is to recognise the right of pre-emption of the co-sharer of the transferor or any raiyat holding land adjoining to the land transferred and this object would be frustrated if strangers are allowed to first buy one plot of land and then resist the claim of right of pre-emption of a co-sharer or a boundary raiyat on the basis of such first purchase of a plot of land. 7. Counsel for the private respondent on the other hand submits that the application filed by the petitioner under section 16(3) of Bihar Land Reforms (Fixation of Ceiling area and Acquisition of surplus land) Act 1961, was itself not maintainable as the provision of section 16(3) of the said case is not attracted in the facts of the present case. The counsel submits that in view of the admitted position that the respondent no. 5 is also the adjoining raiyat of the property involved in this case the condition precedent for application under section u/s 16(3) of the aforesaid Act is not satisfied and accordingly the application for pre-emption in connection with sale deed 876/93 was itself not maintainable before the authority. In support of his submissions learned counsel for the private respondent has relied upon the judgment passed by this Court reported in 2007(1) JCR 339 as well as the judgment reported in 1995(1)PLJR 357 and submits that it has been held that raiyat having larger adjoining area than the purchaser has no preferential right over the purchaser. In support of his submissions learned counsel for the private respondent has relied upon the judgment passed by this Court reported in 2007(1) JCR 339 as well as the judgment reported in 1995(1)PLJR 357 and submits that it has been held that raiyat having larger adjoining area than the purchaser has no preferential right over the purchaser. He further submits that the judgment relied upon by the counsel for the petitioner reported in (2010) 6 SCC 441 is in his favour and for this purpose he draws the attention of this Court at para 21 of the judgment reported in (2010) 6 SCC 441 . 8. After hearing the counsel for the parties, looking to the facts of this case, I find no reason to give any relief to the petitioner of this writ petition in view of the following facts and reasons : (a) It is an admitted position that the respondent no. 5 is also the adjoining raiyat of the property involved in this case as contained in sale deed no. 876/93. (b) From the bare perusal of section 16(3) of the aforesaid Act, it is apparent that the condition precedent for the application to be filed under section 16(3) of the Act is that the transfer ought to have been made to a person other than co-sharer or a raiyat of the adjoining land. The provision of section 16 (1) and (3) of the said Act is quoted herein below for ready reference :- 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. 2 (i) …….. (ii)…….. (iii) ………. Explanation.- …….. Explanation.- For the purpose of this Section “Transfer” does not include inheritance, bequest or gift. 2 (i) …….. (ii)…….. (iii) ………. Explanation.- …….. (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 cosharer 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 percent thereof is deposited in the prescribed manner within the said period. (ii) ………….. (iii) …………………. (c) It is appears from a bare perusal of the section 16(3) of the aforesaid Act that the law does not recognize the right of preemption by a person who is the co-sharer as well as adjoining raiyat to be superior to that of the purchaser who himself is an adjoining raiyat. (d) The right of pre-emption being a statutory right and being mandatory in nature can be exercised only by persons whose case falls within the provisions of section 16(3) of the Act itself. The purchaser of the property i.e respondent no 5 being an adjoining raiyat of the vended property , the application of the petitioner under section 16(3) of the Act was itself not maintainable so far as sale deed no. 876/93 is concerned which is the subject matter of this writ petition. (e) The judgment relied upon by the petitioner reported in (2010) 6 SCC 441 is apparently in favour of the respondent wherein the Hon'ble Supreme Court has held that section 16(3) of the aforesaid Act confers right to pre-emption not only on the co-sharer but also on the adjoining raiyat. The Hon'ble Supreme Court in the judgment reported in 2010 (6) SCC 441 has clearly held that the provision of section 16(3) of the Act are recognized under statutory law and has been held to be mandatory and not mere discretionary. The Hon'ble Supreme Court in the judgment reported in 2010 (6) SCC 441 has clearly held that the provision of section 16(3) of the Act are recognized under statutory law and has been held to be mandatory and not mere discretionary. Issue involved in this case is not as to whether the right of pre-emption is a weak right or strong right but the issue involved in this case is whether the section 16(3) of the Act is at all attracted in the facts of this case or not. As already held above this court is of the considered view that the application of the petitioner under section 16(3) of the Act was itself not maintainable so far as sale deed no 876/93 is concerned which is the subject matter of this writ petition. (f) In the judgment reported in 2007 (1) JCR 339 (JHR) it has been clearly held that the adjoining raiyat having larger boundary with the vended property cannot claim any better right u/s 16(3) of the Act vis-a-vis the purchaser who is also an adjoining raiyat but having a smaller boundary. 9. In view of the facts and circumstances of this case, the writ petition is dismissed.