Untwalia, J.:— These two writ applications have been heard together and are being disposed of by a common judgment, as the facts are similar and the points involved in them are identical.

C.W.J.C 1949 of 1970

2. The facts of this case are that respondents 8 and 9 executed a sale deed on 16.12.65 for a sum of Rs. 625/- in favour of the petitioners conveying to them three plots, detail of which are mentioned in paragraph 1 of the writ application. The registration of this document was complete under Section 61 of the Registration Act on 3.2.66 Dharkhan Singh, ancestor of respondents 1 to 6, and Sahdeo Singh, respondent 7, filed an application on 5.3.66 under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962), hereinafter called the Act, claiming to be either co-sharers of some of the plots transferred or adjoining raiyats of some of the plots. The petitioners filed a rejoinder to the application filed by Dharkhan and Sahdeo. In their rejoinder they did not take their full defence in regard to all the facts but reserved their right to take a fuller defence at a later stage. The main plank of defence was that they had transferred all the lands purchased by them by the sale deed dated 16.12.65 to one Shyam Narain Singh by a deed executed on 2.3.66 It may be mentioned here that the registration of this sale deed dated 2.3.66 was complete on 23.5.66 It would thus be seen that the sale deed in favour of Shyam Narain Singh was executed before the filing of the application under Section 16(3) of the Act but was registered later. The petitioners in their rejoinder also stated that the application filed by Dharkhan and Sahdeo under Section 16(3) of the Act was not in accordance with law as engrafted in the Act and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, hereinafter called the Rules, framed under the Act.

3. Dharkhan and Sahdeo, the two pre-emptors, in view of the stand taken in the rejoinder filed by the petitioners that they had transferred the land to Shyam Narain Singh, filed an application on 31.7.67 in the court of the Sub-divisional Officer who was in seisin of the case for adding Shyam Narain Singh as a party to the application under Section 16(3). So far as I have been able to gather from the materials placed before us, it appears that Shyam Narain Singh was not formally added as a party to Case No. 26 of 1966 but notice was issued to him. He appeared and filed a show cause petition. In the application filed by the pre-emptors on 31-7-67 it was stated that the sale deed executed by the petitioners in favour of Shyam Narain Singh was a farzi transaction meaning thereby that, in fact, there was no sale at all and the purported sale was a sham transaction.

4. The Sub-divisional Officer, by his order dated 10.12.68, a copy of which is Annexure 1 to the writ application, dismissed the application of the pre-emptors filed under Section 16(3) of the Act on the ground that the land had been sold to Shyam Narain Singh prior to the filing of the application the pre-emptors filed an appeal on 6.2.69 impleading therein the petitioner and the transferors; Shyam Narain Singh was not made a party to this appeal. Later, on 18.7.69 they filed an application before the Additional Collector, the appellate authority, for adding Shyam Narain Singh as a party in Appeal no. 169 of 1968-1969. But this prayer was refused. Relying upon a Bench decision of this Court in Phulena Prasad v. Jagdish Choudhary (1969 B.L.J.R 569), the Additional Collector, by his order dated 18.12.69 (Annexure 2), allowed the appeal and held that a subsequent transfer by the purchasers could not defeat the rigtt of the pre-emptors. The petitioners filed Revision no. 57 of 1970 before the Board of Revenue. The Board, by its order dated 2.9.70 (Annexure 3), has upheld the order of the Additional Collector. The petitioners have challenged the orders (Annexures 2 and 3) passed by the Additional Collector and the Board.

(C.W.J.C 1950 of 1970)

5. The facts of this case are similar to those of the other case. The vendors are the same. The pre-emptors are also the same. The purchasers are different. The two purchasers who are the petitioners in this writ case purchased the four plots of land described in Paragraph 1 of the writ application from respondents 8 and 9 by a sale deed executed by them on 16.12.65 Its registration was complete on 10.1.66 These petitioners also executed a sale deed on 2.3.66 in favour of Shyam Narain Singh conveying the lands purchased by them on 16.12.65 The case filed by Dharkhan and Sahdeo before the Sub-divisional Officer was numbered 30 of 1966. A similar rejoinder was filed by the petitioners in this case also. Same kind of prayer and result followed in the matter of addition of Shyam Narain Singh as a party in the case, and by a common order dated 10.12.68 (Annexure 1) the Sub-divisional Officer dismissed the application. The appellate order and the revisional order are also common.

6. Mr. Shreenath Singh, learned counsel for the petitioners in both the cases urged the following points—

(i) That applications for pre-emption were not in accordance with law engrafted in the Act and the Rules. They were not in form. The classification of the land was not stated and the boundaries were not given in Case No. 30 of 1966 which gave rise to Appeal No. 167 of 1968-1969 and the number of revision before the Board was 56 of 1970.

(ii) That since the petitioners had transferred the land to a third party, no order of pre-emption could be made against the petitioners under Section 16(3) of the Act.

(iii) That the pre-emptors were not adjacent raiyats or co-sharers of all the plots of land transferred and, therefore, pre-emption could not be allowed.

(iv) That the petitioners are adjoining raiyats of the plots transferred and no order of pre-emption could be made against them.

7. Since the cases are being sent back to the first court, namely, the Sub-divisional Officer for a fresh trial, we did not think it proper and necessary to defeat the pre-emptors on point no. (1) as urged on behalf of the petitioners. There did not appear to be infringement of any mandatory requirement of the law. All defects were in regard to the directory requirement and the Sub-divisional Officer, when the cases go back on remand to him, is directed to give an opportunity to the heirs of Dharkhan Singh and to Sahdeo Singh for removing the defects in their application within the time to be fixed by him.

8. The third and the fourth points urged on behalf of the petitioners may also shortly be disposed of. It has been pointed out in (1) Mussamat Dukho Devi v. Uchit Lal Mandal (1968 Patna Law Journal Reports 1) and Sheikh Mohammad Umar v. Baidyanath Giri (1969 Bihar Law Journal Reports 542) that the pre-emptor in order to succeed must be a co-sharer of the piece or block of land transferred or he must be an adjacent raiyat of the piece or the block. If the land transferred is comprised in several plots, which is not in one block, then the pre-emptor has to establish that either he is a co-sharer of the plots transferred or an adjacent raiyat of them. The claim can be founded and succeed only if he establishes this fact in respect of all the plots if the various plots are different pieces and different blocks of lands. In other words, the pre-emptor has to establish his claim in respect of all the pieces or blocks of lands transferred and cannot succeed by establishing that he is a co-sharer or is an adjacent raiyat of only a few pieces or blocks of lands out of several transferred by one common sale deed. No apportionment is permissible. No partial claim of pre-emption can be allowed with respect to some of the pieces or parcels of lands on the pre-emptor's establishing that he is a con sharer or an adjacent raiyat of those pieces [vide (2) Ram Chabila Singh v. Ram Sagar Singh (1968 P.L.J.R 279)]. This decision was followed by me in another decision, the reference of which is not in hand. But it was pointed out that no partial pre-emption could be allowed by invoking the powers under Section 37 of the Act. But since this matter was not fully controverted by the petitioners in their rejoinder filed before the Sub-divisional Officer and has not been enquired into fully by either of the courts below, the cases have to go back to the first authority. The Sub-divisional Officer will give an opportunity to the petitioners to put in their additional rejoinders and then proceed to decide the matter on taking fresh evidence which may be adduced by either party.

9. It is also plain in view of the language of Section 16(3) of the Act that if the purchasers are adjoining raiyats of any piece or block of land transferred then no order of pre-emption can be made against them. Mr. Shreenath Singh laid great stress on the fact that in C.W.J.C 1950 of 1970 the boundaries mentioned in paragraph 1 of the blocks of land transferred showed that the purchasers themselves are the adjacent raiyats of some of the blocks of land transferred. This fact has not been controverted in the counter-affidavit filed in this case. That being so, at least in this case it should be held that the application for pre-emption cannot succeed. I did not feel persuaded to take this exclusive course in this case as, in my opinion, without investigation of the facts by the authorities below, for the first time on the basis of affidavits filed in this court, no party should be allowed to succeed and when the cases go back to the court below, the Sub-divisional Officer, on the evidence adduced or which may be adduced afresh, will try to find out whether the purchasers are adjoining raiyats of any of the piece or blocks of land transferred. If they succeed in establishing that it follows that no order of pre-emption can be made against them in respect of the lands transferred, as, the same principle which has been discussed in relation to point no. (iii) would apply and a partial pre-emption cannot be granted.

10. The point of importance which falls for decision in these cases is the second point. The rival contentions of the parties in this regard are these. On behalf of the petitioners it is asserted that they had transferred the land to Shyam Narain Singh by executing a sale deed on 2.3.66, which, when registered later, conferred title on Shyam Narain from the date of the execution under Section 47 of the Registration Act. By an order of pre-emption made under Section 16(3)(iii) the Sub-divisional Officer is bound to direct, the transferee to convey the land in favour of the applicant by executing and registering a document of transfer. No such order would be made against the petitioners when they had parted with their property in favour of Shyam Narain. In presence of Shyam Narain the Sub-divisional Officer dismissed the application filed by the pre-emptors and when an appeal was taken by them, Shyam Narain was not made a party and was not allowed to be made a party to the appeal. The appellate court could not reverse the decision by following a Bench decision of this Court in Fulena Prasad's case which has been overruled by a Full Bench of this Court in (3) Ram Chandra Srivastava v. Parsidh Narain Singh (1970 Bihar Law Journal Reports 1101). On behalf of the pre-emptors Mr. Kailash Roy put forward the argument that the claim of pre-emption cannot be defeated by a subsequent transfer made within the period of limitation provided in Section 16(3) of the Act. In the instant cases although the sale deeds purport to have been executed three days prior to the filing of the application under Section 16(3), since they were registered after the filing of the application, they are hit by the doctrine of lis pendens as the transfer was complete during the pendency of the applications for pre-emption. Mr. Roy, in support of his submission, relied upon a Bench decision of this Court in (4) Tilakdhari Singh v. Gour Narain (A.I.R 1921 Patna 150). He further submitted that as soon as transfer of a land made to a person who is neither a co-sharer nor an adjoining raiyat of the land transferred is completed on the completion of the registration under Section 61 of the Registration Act, a right is created in the pre-emptor, which cannot be defeated by any subsequent transfer made before the expiry of the period of limitation for filing an application for pre-emption.

11. Section 16(3) of the Act reads as follows—

“(i) when any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transfer 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) 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 thereof 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 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed.”

Following the decision of the Supreme Court in (5) Ram Saran Lall v. Mst Domini Kuer (A.I.R 1961 Supreme Court 1747) it has been held by that Court in (6) Hiralal Agrawal v. Ram-padarath Singh (A.I.R 1969 Supreme Court 244) that the transfer is complete on the registration of the document and the pre-emptor becomes entitled to make an application for pre-emption after completion of registration. This case hag been followed by this Court in several decisions, to which I have also been a party. It would be noticed from the provisions of Section 16(3) that in Clause (i) the pre-emptor's right is to make an application for the transfer of the land to him. On deposit of the purchase-money together with a sum equal to ten percent (Sic) thereof, he becomes entitled to be put in possession of the land. Possession, if given to the pre-emptor, has to be restored back to the transferee in case the application for pre-emption filed fails, under the proviso to Clause (ii). If the application is allowed then under Clause (iii) the Collector has to make an order directing 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 order has to be executed in the manner provided in Order 21 Rule 34 of the Code of Civil Procedure, which is a procedure for execution of a decree for specific performance of contract to sell. In a suit for specific performance of a contract of sale a decree for specific performance can be passed against the subsequent transferee except when he is a bona fide transferee for value without notice of the original contract (vide Section 27 of the Specific Relief Act, 1877, which corresponds to Section 19 of the Specific Relief Act, 1963). In Section 16(3), however, there is absolutely no provision made for making an order of pre-emption against a subsequent transferee on an application filed for pre-emption against the first transferee. If the subsequent transferee is, in fact and in law, a transferee of the property in respect of which claim for pre-emption has been made then a question of his being a transferee with notice of the pre-emption application is not relevant in view of what I have said in my judgment in (7) Ramchandra Yadav v. Anutha Yadav (1971 B.L.J.R 994). I have pointed out three situations there. If the transferee of the property transfers it to a second purchaser by a document executed and registered before the filing of the application, the second transferee gets a good title to the property and there is no question of his light being defeated by a subsequent application filed by the pre-emptor, as he could not be presumed to have any knowledge of the application which may be filed in future. On the other side of the pricture, the cleat example is where the second sale deed is executed and registered after the filing of the application for pre-emption. In such a case the second transfer would be clearly hit by the doctrine of lis pendens engrafted in Section 52 of the Transfer of Property Act. But the difficulty arises when a document of sale is executed before the filing of the application for preemption but is registered after its filing. If the argument put forward by Mr. Kailash Roy were to be accepted as correct, even the completed transfer before the filing of the application for pre-emption would be bad because learned counsel submitted that on completion of the first transfer a right in the land is created in favour of the pre-emptor. This argument, in my opinion, overlooks the well-settled principles in regard to the nature of the right of the pre-emptor. In (8) Bishan Singh v. Khazan Singh (A.I.R 1958 Supreme Court 838) Subha Roy, J., as he then was, delivering the judgment on behalf of the court, quoted with approval certain passages from the judgment of Plowden, J., in (9) Dhani Nath v. Budhu (136 Punjab Re 1894 at Page 511) and from the judgment of Mahmood, J., in (10) Govind Dayal v. Inayatullah (I.L.R 7 Allahabad 775). The said quotations are in Column 2 of Page 840. Plowden, J., has said—

“A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter, does not appear to me to be either a right to or a right in that land….”

12. Mahmood, J., has said:—

“It is simply a right of substitution, entitling the pre-emptor, by means of a legal incident to which sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which he derived his title. It is, in effect, as if in a sale deed the vendee's name were rubbed out and pre-emptor's name inserted in its place.”

13. The learned Judge has said in paragraph 11 at page 841—

“The plaintiff is bound to show not only that his right is as good as that of vendee but that it is superior to that of the vendee. Decided cases have recognised that this superior right must subsist at the time the pre-emptor exercises his right and that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. To summarize: (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e, the pre-emptor takes the entire bargain the steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.”

14. I had said in one of my decisions that the law engrafted in Section 16(3) could have been struck down as being violative of Article 19(1)(f) of the Constitution but could not be so done because it is a protected legislation included in, the 9th Schedule of the Constitution. But the law of pre-emption engrafted in Section 16(3) of the Act, to my mind, is of weaker nature than the customary law of pre-emption. There, as pointed out by Mahmood, J., the pre-emptor, in effect, steps into the shoes of the vendee. And, yet Subba Rao, J., has said in paragraph 11 that the vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. The scheme of the law engrafted in Section 16(3) of the Act is to permit the pre-emptor to have the property conveyed to him by the transferee. Until possession is delivered to the pre-emptor under Clause (ii) he does not get any right in the property and until property is conveyed to him by a sale deed executed in pursuance of Clause (iii), he does not become the owner of the property. If under the customary law of pre-emption a preferential right to acquire land is not a right to, or a right in, that land, I fail to understand how under Section 16(3) a person who becomes entitled, to hie an application under the said provision of law acquires any kind of right to, or right in, the land transferred. No order of pre-emption car be made against the original transferee if he has transferred the land to another person before the filing of the application for pre-emption. There is no doubt in my mind about this proposition of law that if the subsequent transfer has been completed by registration before filing of the, application for pre-emption then no order for pre-emption can be made against the original transferee. And, as I have said above, the subsequent transfer made after the filing of the application by execution and registration of the sale deed subsequently will be hit by the doctrine of lis pendens, there is no doubt about this proposition of law also.

15. But the difficulty was sought to be created in a case where, as in the two instant cases, the subsequent sale deed is executed before the tiling of the application under Section 16(3) but is registered after its filing. In (11) Keshava Tewary v. Additional Member, Board of Revenue (1972 B.L.J.R 203)- a case which was decided much earlier than my decision in (7) Ramchandra Yadav's case (1971 B.L.J.R 994). Misra, C.J, overruled the argument of the opposite party that after the date of the execution of the sale deed in favour of the first transferee the said transferee had executed a Bale deed, in favour of another person one month thereafter and since the subsequent transferee was not impleaded to the petition, the pre-emptor could not succeed, by saying—

“The petitioners who were seeking to pre-empt, were concerned with the sale deed executed in favour of opposite party no. 4 and not with the other transactions that opposite party no. 4 entered into with other persons in regard to the same property, because they cannot hold to have acquired any title under the gale deeds in their favour.”

16. I had distinguished this case in my judgment in (7) 1571 B.L.J.R 994. Although it is stated in the judgment of Misra, C.J, that the second sale deed was executed one month after the execution of the first sale deed and much before the filing of the application under Section 16(3), it is not clear whether the registration was also complete before that. The point was taken for the first time in the High Court. Moreover, it is not correct to say that the subsequent transferees do not acquire tide. The first transferee is a good and valid owner of the property transferred to him. Except of the second transfer being bit by the doctrine of lis pendens, it is a good one; the second transferee acquires a good title from the first transferee. There are no words in section 16(3) to debar the first transferee from transferring the property before the expiry of the period of limitation.

17. In (4) Tilakdhari Singh v. Gour Narain (A.I.R 1921 Patna 150), the observations were made with reference to the law relating to mortgage actions. The mortgage suit was filed on 7th November, 1906. A decree was obtained. But the plaintiff was resisted by a person who claimed to have purchased the property by a sale deed executed on 11th August, 1906. The sale deed was registered on 22nd November, 1906. It would thus be noticed that the execution of the sale deed was prior to the filing of the suit but registration was later. Subsequently a suit for possession was filed by the mortgagee decree-holder, and in that suit the District Judge directed that the person who was defendant no. 5 should pay the mortgage money with costs and interest within six months from the date of the decree and on failure to do so, the plaintiff was to get possession of the disputed property. Under such circumstances, it was held that since the sale was complete after the institution of the suit, the plaintiffs right which was in existence on the date of the institution of the suit could not be defeated by a sale completed during its pendency. It will, however, be noticed that the right of defendant no. 5 was not obliterated altogether on the doctrine of lis pendens. The well-known principle that he should be given an opportunity to redeem the mortgage was applied. In the first instance, by the decree passed by the District Judge he was given that opportunity, and on his failure to do so, the plaintiff was to get possession.

18. (4) Tilakdhari Singh's case has not been followed by the Madras High Court in (12) Pingali Venkataramana Reddi v. Kotigari Rangiah Chetti (A.I.R 1922 Madras 249) and (13) Akki Guru Basappa v. Valuvathi Setra Santhappa (A.I.R 1925 Madras 710). A Bench decision of this court in (14) Sadei Sahu v. Chandramani Dei (A.I.R 1948 Patna 60) has pointed out that a deed of sale executed before the institution of the suit for specific performance of prior contract for sale of the same property but registered thereafter cannot be held to be executed pendente lite. (4) Tilakdhari Singh's case is not noticed in this judgment but two Calcutta cases reported in (15) Naresh Chandra v. Girish Chandra (A.I.R 1936 Calcutta 17) and (16) Gobardhan Bar v. Gunadhar Bar (A.I.R 1941 Calcutta 78) have been noticed in paragraph 6. I am conscious that the Supreme Court in (5) Ram Saran Lall v. Mst. Domini Kuer (A.I.R 1961 Supreme Court 1747) has quoted with approval in paragraph 8 of the judgment the decision of this court in (4) Tilakdhari Singh's case as also the two Calcutta cases which have been noticed and distinguished in (14) Sadei Sabu's case. But I venture to point out that the ratio in those decisions has been approved by the Supreme Court in a different context. The question before the Supreme Court was: when was the pre-emptor to perform the ceremonies under the Muhammadan Law? The majority decision of the Court was that the sale was complete on completion of the registration under Section 61 of the Registration Act and, therefore, the ceremonies had to be performed after completion of the registration. A similar view has been expressed in (6) Hiralal Agarwal's case (A.I.R 1969 Supreme Court 244). In the customary law the question assumes importance as to the point of time when the ceremony is to be performed and under Section 16(3) of the Act the question arose as to when the pre-emptor gets a right to file an application under Section 16(3). In (17) Budhnandan Ram v. The State of Bihar (C.W.J.C 133 of 1969) decided by a Bench of this Court, of which I was a member, on 30th January, 1970. I had elaborately considered the point. I had pointed out that there could not be two starting points of limitation under Section 16(3) of the Act; starting point must be one either the date of execution of the sale deed or the date when its registration is complete. I held following (6) Hiralal Agarwal's case that the latter was the date which was the starting point of the period of three months for the filing of the application under Section 16(3). But to apply the doctrine of lis pendens is a different thing. Here cases have consistently taken the view, to which reference has been made earlier by me, that if a sale deed is executed before the filing of the suit but is registered later then such a transfer is not pendente lite, the transferee became the owner of the property, in view of the provision of law contained in Section 47 of the Registration Act, prior to the filing of the suit. No case taking a contrary view for the application of the doctrine of lis pendens was brought to cur notice by learned counsel for respondents 1 to 7.

19. The Additional Collector relied upon a Bench decision of this Court in (18) Phulena Prasad v. Jagdish Chaudhary (1969 Bihar Law Journal Reports 569). In this case it was held that if the first transferee was not a co-sharer or an adjoining raiyat of the land transferred on the date of his transfer, he could not defeat the claim for pre-emption by becoming a co-sharer or an adjoining raiyat later within the period of three months. This decision was overruled in the Full Bench decision of this Court in (3) Ram Chandra Srivastava v. Prasidh Narain Singh (1970 B.L.J.R 1101). I am not quite sure whether the view expressed by the Division Bench in (18) 1969 B.L.J.R 569 was erroneous and was rightly overruled by the Full Bench. It may well be that the person subseququently becoming a co-sharer or an adjoining raiyat of the land transferred to him earlier cannot defeat the pre-emptor. Had either of the two instant cases been a case of that nature, we were bound by the decision of the Full Bench and would have respectfully followed it. But here the case is a different one. The purchasers transferred the property to Shyam Narain Singh, which transfer, if not farzi and sham, is not hit by the doctrine of lis pendens, it would be good transfer and no order of pre-emption under Clause (iii) of Section 16(3) can be made against the original purchasers, as the order would be futile and infructious. A claim for pre-emption at the proper time in that event had to be made against Shyam Narain Singh, which was not made. But on the facts and in the circumstances of the two cases, I am satisfied that the question whether Shyam Narain Singh was a real purchaser or the sale deed executed in his favour was merely farzi and sham has not been investigated by any of the courts below. The cases, therefore, have to go back to the first court for allowing opportunities to the parties to adduce evidence on the point and for a decision. It will be necessary to add Shyam Narain Singh as a party to both the cases because if that question of farzi nature is decided in his absence, it will not bind him.

20. For the reasons stated above, both the writ applications are allowed, the orders contained in Annexures 1, 2 and 3 in both the cases are set aside and the two cases are remitted back to the first authority, namely, the Sub-divisional Officer who is acting as the Collector under the Act for a fresh disposal in accordance with law in the light of this judgment and by observing all the directions given herein before. There will be no order as to cost in either.

21. Akbar Husain, J.:—I agree.

Applications allowed.