IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.618 of 2008 1. HAZARI SINGH 2. KAMAKHYA SINGH, BOTH SONS OF LATE SHEOPUJAN SINGH, RESIDENTS OF VILLAGE THORI PANDEYAPUR, P.S.MURAR, DISTRICT BUXAR. Respondents /Appellants VERSUS 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BUXAR 3. THE COLLECTOR, BUXAR Respondents/Appellants 4. SHYAM BIHARI SINGH SON OF SUHAWAN SINGH 5. FULJHARO DEVI WIFE OF RAM AWADESH SINGH, BOTH RESIDENTS OF VILLAGE THORI PANDEYAPUR, P.S.MURAR, DISTRICT BUXAR. Writ Petitioners/Respondents ----------- For the appellant : Mr. Dhruv Narayan, Sr. Advocate Mr. Rajani Kant Singh, Advocate For the respondents : Ms. Mallika Mazumdar, Advocate Mr. S.K.Mazumdar, Advocate For the State : Mr. Prem Kumar, Advocate --------------- 06 01.08.2011 The present L.P.A. has been filed by the respondent Nos. 4 and 5, appellants herein for setting aside the order/judgment passed in CWJC No.4129 of 2005 dated 07.07.2008. The writ petitioners have filed this writ petition against the order passed by the Board of Revenue in Revision Case No.214 of 2004 which was disposed of on 07.02.2005 reversing the order of the lower appellate authorities and affirming the claim of the pre-emptor, i.e. the appellants herein. The respondent no.4 in the writ petition was the vendee who purchased the land and pre-emption was sought for by the appellant herein on the ground that they are adjoining ‘raiyats’. The lower appellate authorities have rejected the 2 pre-emption application on the ground that it is a ‘Firni’ Land and hence, it is subjected to pre-emption. But, however, the Board of Revenue relied on the revisional survey documents and held that the private respondents would not entitle for right of pre-emption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (for brevity ‘the Act’). The learned single Judge having heard the parties has held that pre-emption is a weak right and upheld the view that the land as ‘Firni’ land as the same is recorded under the consolidation proceeding and hence, the appellant could not exercise the right under Section 16(3) of the Act. Aggrieved by the same, the appellant has preferred this L.P.A. It has been contended by the learned senior counsel appearing for appellants that it is well established that pre-emption is not a weak right as per decision of the Apex Court in the case of Suresh Prasad Singh Vrs. Dulhin Phulkumari Devi and other, reported in 2010(6) SCC 441. The appellants’ right is not a weak right as they are having adjoining ‘raiyats’ of the disputed land, hence, right of pre- emption is in their favour. Pre-emption cannot be claimed only on the ground of classification of land as ‘Firni’ Land. The learned senior counsel for the appellants has contended that even assuming that the land is Homestead as per definition under clause 2 (f) of the Act Homestead land is 3 included. In Explanation-I “Homestead” means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out-building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Hence, observation of the learned single Judge has sought to be set aside. The learned counsel for respondent nos. 4 and 5 has contended that even though it was classified as agricultural land during consolidation proceedings, but it was shown as homestead land and hence, the homestead land is not subjected to pre-emption under Section 16(3) of the Act. We have also considered the definition of land as defined under clause 2 (f) of the Act. It would indicate that it has been inserted by Act 22 of 1976 where it has been stated that homestead land include dwelling house for the purpose of living or for the purpose of letting out together with any courtyard, compound, attached garden, orchard and out- building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. The definition of Homestead land has wide explanation which has included the building also as indicated above. The contention of the learned counsel for the respondents that the appellants have a house on the land 4 and they are not entitled to claim the right of pre-emption under section 16(3) of the Act cannot be accepted for the reason that the homestead land would include the building also as contained in the Explanation-I as stated supra. Under the aforesaid circumstances, we are of the opinion that such right of pre-emption is not a weak right as has been held by the Apex Court in the case of Suresh Prasad Singh Vrs. Dulhin Phulkumari Devi and other, reported in 2010 (6) SCC 441. We are of the opinion that in the absence of any material that the land is meant for any other purpose other than homestead land, the claim of the respondent would fail on the facts itself. Hence, we are of the opinion that the order of learned single Judge need to be set aside and accordingly the order of learned single Judge is set aside and the L.P.A. is accordingly allowed. chandran (T.Meena Kumari, J.) (Vikash Jain, J.)