JUDGMENT : 1. Heard Mr. L.K. Lal, counsel appearing for the petitioners. 2. Heard Mr Asit Baran Mahatha, counsel appearing for the respondent no. 5. 3. Heard Mr. Shahid Khan counsel appearing for the State. 4. This writ petition has been filed challenging the order dated 08.05.2002 as contained in Annexure-4 to the writ petition passed by the respondent no. 2 in Lohardaga Revision Case No. 08/2001 whereby the Revision has been allowed upholding the order dated 12.11.99 passed by the respondent no. 4 in Pre-emption Case No. 1/99 after setting aside the order dated 23.01.2001 passed by the respondent no. 3 in Pre-emption Appeal No. 18R 15/19-2000. The petitioners also brought into notice the order dated 12.11.1999 (Annexure-2) passed by the respondent no. 4 in Pre-emption Case No. 1/99 whereby the application for pre-emption filed by the respondent no. 5, herein, was allowed under the provision of section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 on the ground that the respondent no 5 is a co-sharer of the vended properties. 5. The counsel for the petitioners submits as under:- (i) The property involved in this case was sold by the petitioner nos. 1 and 2 (who are sons of Tilakdhari Ram) in favour of petitioner nos. 3 to 7 by virtue of five different registered sale deeds. (ii) The Respondent no. 5 (son of Gaya Mahto and nephew of Tilakdhari Ram) for all the properties covered by five sale deeds filed single application for pre-emption under the provisions of section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 claiming his right of pre-emption which was numbered as Pre-emption Case No. 1/1999. (iii) The respondent no. 5 herein claimed to be a co-sharer of the property and his application for pre-emption was allowed by the learned Deputy Collector, Land Reforms, Lohardaga in Pre-emption Case No. 1/1999 holding him as the co-sharer of the property. (iv) Against this the petitioner filed an appeal before the appellate authority which was numbered as Appeal Case No. 18R15 /99-2000. 5 herein claimed to be a co-sharer of the property and his application for pre-emption was allowed by the learned Deputy Collector, Land Reforms, Lohardaga in Pre-emption Case No. 1/1999 holding him as the co-sharer of the property. (iv) Against this the petitioner filed an appeal before the appellate authority which was numbered as Appeal Case No. 18R15 /99-2000. The Appellate Court passed order dated 12.11.1999 setting aside the order passed in Pre-emption Case No. 1/1999 on the ground that the property involved in this case cannot be said to be an agricultural property and hence the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 has no applicability. (v) Against this order dated 12.11.99 the respondent no. 5, herein, filed revision before the Member Board of Revenue, Jharkhand which was numbered as Case No. Revision Lohardaga case No. 8/01 and was disposed of vide order dated 08.05.2002 holding that the respondent no. 5 was a co-sharer of the property and accordingly the order dated 12.11.99 passed by the learned Deputy Commissioner, Land Reforms, Lohardaga in Pre-emption Case No. 1/1999 was restored and upheld . (vi) Counsel for the petitioners submits that after the original order passed by the learned Deputy Commissioner, Land Reforms, Lohardaga, the respondent no. 5 herein along with his brother Chamar Ram filed five Title Suit Nos. 9/2001, 10/2001, 11/ 2001, 12/2001 and 13/2001 in connection with five different properties involved in the five sale deeds in which five purchasers were made defendants. All the title suits were amalgamated and numbered as Title Suit No. 9/01 vide order dated 21.01.2009 and accordingly all the purchasers in different sale deeds were named as defendants 11A to 11E who are the petitioner nos. 3 to 7 in the writ petition. (vii) Counsel for the petitioners submits that one of the issues framed in the said suit was as to whether the said property in question was partitioned between the ancestors of the plaintiffs and defendants. It has been held in para 39 of the said judgment passed in Title Suit No. 9/01 that it was admitted fact that both the defendants and plaintiffs have their common ancestors Mahadeo Komhar recorded raiyat relating to the suit land. It is also admitted fact that family partition took place between full brother namely Gaya Mahto, Sheo Shankar Mahto, Dhanukdhari Mahto and Tilakdhari Mahto. It is also admitted fact that family partition took place between full brother namely Gaya Mahto, Sheo Shankar Mahto, Dhanukdhari Mahto and Tilakdhari Mahto. It was also further admitted that the Gaya Mahto and Tilakdhari Mahto were allotted one share of the property and another share allotted to Sheo Shankar Mahto and Dhanukdhari Mahto. It has been held in para 41, of the title suit, is as follows : “41. ………..Here I find that the memorandum of partition which is itself is signed by the father of the plaintiffs Gaya Mahto and Tilakdhari Mahto is more binding upon the Gaya Mahto and it has much more legal force then the present survey khatiyan of Khata No. 53 which is Ext. 4. In this way I find that it is established that amicable family partition took place between Gaya Mahto in 1963 and which was reduced to writing by memorandum of the partition dated 22.2.66. In this way I find that defendant No. 1 and 2 have full right title and interest and possession over the suit land and they have full right to sale the suit land to the different persons as it is done by them to defendant 11A to 11D in the present suit. I find the plaintiffs and their coparcenary have not joint in the present suit. I find the plaintiffs and their coparcenary have not joint right, title and possession over the schedule property, plaintiffs and defendants no. 1, 2, 3 are holding separate landed properties as per the family settlements in the year 1963 between their ancestors, sale deed executed in favour of defendant no. 11A to 11E is operative and binding upon the plaintiffs or their co-parcenors, plaintiffs has not valid right title and interest over the suit land of schedule-B. Thus On the basis of discussion made above I find that issue no. 7, 8, 9 and 10 are decided negatively against the plaintiffs.” (viii) It is submitted by the counsel for the petitioners that in view of the aforesaid findings recorded in the Title Suit No. 9/01 the claim of the private respondent no. 5 that they were co-sharer of the property and hence entitled to claim right of pre-emption of land in question has no legs to stands. 5 that they were co-sharer of the property and hence entitled to claim right of pre-emption of land in question has no legs to stands. In the Revision Case No. 8/01 pendency of title suit was not brought to the notice of the Court in which order was passed that the respondent no. 5 is a co-sharer of the property of the vended property. Counsel for the petitioners submits that in view of the specific finding in the title suit that partition took place in the year 1963, the impugned order passed by learned Member of Board Revenue holding that the respondent no 5 is a co-sharer of the vended property is fit to be set aside. 6. Counsel for the respondent no 5 , on the other hand, is not in a position to dispute the finding recorded in the title suit no 9 of 2001, but he insisted that the respondent no. 5 is still the co-sharer of the property. Counsel for the respondent no. 5 further submits that the respondent no 5 was not only a co-sharer of the property but was also an adjoining raiyat and for that he referred to the application for preemption filed by the Respondent no 5 wherein both the points have been taken. He submits even if it is held that the Respondent no 5 is not a co-sharer of the property, still his right of preemption remains intact on the strength of being an adjoining raiyat. 7. Counsel for the State, on the other hand, submits that there was no occasion for the learned Member, Board of Revenue to consider the pendency of the title suit as this fact was not brought to the notice of the said authority. He further submits that there was no occasion for the Member Board of Revenue to give any finding on the point of adjoining raiyat as the original authority had not allowed the petition for preemption on the point of adjoining raiyat but the same was disposed of on the ground of co-sharer of the property. Against this appeal was filed but the respondent no 5 did not file any cross objection or cross appeal in connection with his claim of being an adjoining raiyat and now this issue cannot be examined in writ jurisdiction under Article 226 of the Constitution of India. 8. Against this appeal was filed but the respondent no 5 did not file any cross objection or cross appeal in connection with his claim of being an adjoining raiyat and now this issue cannot be examined in writ jurisdiction under Article 226 of the Constitution of India. 8. After hearing counsel for the parties, and giving thoughtful consideration to the various impugned orders as well as after going through the judgment passed in Title Suit No. 9/01, this Court finds that this writ petition is fit to be allowed on the ground that the very claim of the respondent no. 5 that he is the co-sharer of the property stood decided against the Respondent no 5 by the judgment pronounced in the Title Suit No. 9/01 against which the private respondent no. 5 has not filed any appeal. In view of the specific findings in the judgment passed in the title suit as quoted above, the respondent no. 5 cannot be said to be a co-sharer of the property and accordingly his claim of being a co-sharer of the property is rejected. Although the judgment of the title suit has been delivered after the passing of the impugned order passed in the revision case but it records a clear finding that the partition had taken place as back as in the year 1963 and was put into writing in the year 1966 and is binding upon Gaya Mahto (father of the respondent no 5). This Court also perused the application for pre-emption filed by the Respondent no 5 before the learned Deputy Collector, Land Reforms, Lohardaga and found that in the petition the respondent no. 5 had claimed to be a co-sharer as well as adjoining raiyat of the vended properties but the petition was allowed only on the ground that the Respondent no 5 was a co-sharer of the property and there is no finding that Respondent no. 5 was an adjoining raiyat. At the appellate stage the Respondent no. 5 neither filed any cross appeal nor filed any cross objection and did not agitate his claim as an adjoining Raiyat. Accordingly at this stage the Respondent no. 5 cannot be permitted to agitate his claim for preemption in the capacity of adjoining Raiyat. 9. Considering the facts and circumstances, the writ petition is hereby allowed. 5 neither filed any cross appeal nor filed any cross objection and did not agitate his claim as an adjoining Raiyat. Accordingly at this stage the Respondent no. 5 cannot be permitted to agitate his claim for preemption in the capacity of adjoining Raiyat. 9. Considering the facts and circumstances, the writ petition is hereby allowed. The impugned order dated 08.05.2002 as contained in Annexure-4 to the writ petition passed by the Member, Board of Revenue, Jharkhand in Lohardaga in Revision Case No. 08/2001 is hereby set aside and accordingly the order dated 12.11.1999 in Pre-emption Case No. 1/99 passed by the learned Deputy Commissioner, Land Reforms, Lohardaga is also set-aside and it is held that the Respondent no. 5 is not entitled to any relief under section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.