CW -240/95- Satya Narain Vs. Ismile & Ors. : Judgment dt 13.5.2008 1/5 S.B. CIVIL FIRST APPEAL NO.240/1995 Satya Narain Vs. Ismile & Ors . Date of Judgment : 13th May, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J.K. Bhaiya for the appellant. Mr. Jagdish Vyas for the respondents. --------- 1. Heard learned counsels. 2. Learned counsel for the respondents has pointed out that issue involved in this writ petition is squarely covered by the Division Bench judgment of this Court in LRs of Smt. Sire Kanwar Maloo Vs. Shri Daudas Mantri – 2007(3) DNJ (Raj.) 1661 in which the Division Bench of this Court has laid down that on the basis of common wall between the two adjacent properties only the plaintiff cannot claim a right of pre-emption. It would be appropriate to reproduce the relevant part of the judgment of Division Bench in para 30 to 37:- “30. The foundation of the case of Jagannath's case (supra0 being only a custom, based on a personal law. The force of customs being diluted by enactment of a statute, this case loses its binding force. It may at best have a kind of illustrative value. Thus, in our considered opinion, the ratio of the case of Jagannath's case has no binding value for deciding the question in hand. A custom in certain statutes have been recognized to have been continuing value but in the Pre-emption Act, no such saving has been provided for any CW -240/95- Satya Narain Vs. Ismile & Ors. : Judgment dt 13.5.2008 2/5 prevailing custom, therefore also, a custom based on a perusal law looses significance altogether. 31. The ratio in the case of Bahu Ram's case (supra) clearly is to the effect that vicinage cannot be a position which will give the right of pre- emotion. In this case, it has been recognized that a co-sharer definitely has a right of pre-emption. 32. What is now to be seen is whether the term co-sharer or Partner as delineated in Section 6(1)(i) engulfs in it a person who has a right in a party wall i.e. When there is a common wall between the two dwellings. 33. A common wall supports the structure of the two houses. To that extent, is the use of the wall. Both the dwellings being contiguous. It is to be seen whether the two inmates have any commonality of the use of their dwellings? Answer would be in the negative. None of the two houses have anything common except a wall, which is jointly owned and faced the respective dwellings. 34. If the two houses have no other feature which is common to them, then this is certain that their occupant do not share the property when put to use, in any facet, except of course the support of wall. Can that contingency be given a broader definition so as to characterise each of the owner of the wall, be termed to be user of both the houses in its all parameters? The answer will again be in the negative. No one permits a neighbour to get into his house to his determinant. Meaning thereby the co-sharership or partnership does not extend beyond the wall. Thus the owner of the CW -240/95- Satya Narain Vs. Ismile & Ors. : Judgment dt 13.5.2008 3/5 house of both sides are part owner of the common wall. 35. Definition of co-sharer as given in Section 2 (1) of the Rajasthan Pre-emption act, 1966 defines an owner of the part of a premises as a co-sharer. But co-sharer of the nature we are concerned has a handicap, that is most important aspect, that he cannot use any part of the premises of another. If use is restricted to wall only then to what extent his rights are to be recognized? 36. As part owner of the wall, two neighbours exclude each other from the use of the respective houses. Thus each one of them is excluded from the use of the dominant part of the main part of the house. If a co-sharer as depicted as a sharer of Party wall, is not in a position to use the dominant part of the house, then his rights are confined to the use of the wall of which each one is part owner. A part owner thus, given the right of pre- emption under Section 6(1)(i), will have the capacity to inhibit the free enjoyment of property of other. Such restriction sounds to be an onerous burden. 37. Premises on which the doctrine of right of pre-emption is based is that the vendee should not put the existing owner in a difficult position than the one which was before sale. The wall separates the two dwellings. The respective easements are governed by a separate statute. Those rights cannot be infringed by any sale. These easementary rights have been provided for in a separate statute. Thus, the transfer cannot put the CW -240/95- Satya Narain Vs. Ismile & Ors. : Judgment dt 13.5.2008 4/5 vendee in a position wherein he can cause any interference in the domain of non-selling part owner of the wall.” 3. Paras No.39 and 40 are also reproduced for ready reference:- “39. If this is also viewed from the point of view of the statutory provision in the Rajasthan Pre-emption Act, 1966, then clause (iii) of Section 6 which has been struck down, engulfs the position of the owner of the house feeling aggrieved by sale, more specifically because the common wall having been partly owned by both the neighbours, can fit in the scheme of Part(iii) of sub-section (1) of Section 6 of the Rajasthan Pre-emption Act, 1966 and thus, the same having been held un- constitutional, no right can be seen in the neighbour, a Part owner of the wall to enforce pre- emption. Thus, in the ultimate conclusion e opine on the question as framed by the learned Single Judge as to whether a co-owner of the party wall can pre-empt the transfer of other immovable property under Section 6(1) of the Act, in negative and hold that no such right would accrue to a part owner of a wall, call it by any name co-owner or co-sharer. 40. The question having been answered by us, we would remit the case to respective Benches for their ultimate decision in accordance with law. We are not entering into the merits of the cases sent to us for deciding the reference. CW -240/95- Satya Narain Vs. Ismile & Ors. : Judgment dt 13.5.2008 5/5 This will be decided in the light of the law laid down in relation to pre-emption. The rights of the parties may be accordingly decided by the respective Courts in the light of the above discussion.” 4. From the perusal of the memo of appeal as well as the impugned judgment, it is clear that the right of pre-emption was claimed by the appellant-plaintiff on the basis of common wall only. The suit was rejected by the learned trial court by the impugned judgment dated 22.8.1995. 5. Since the controversy is no longer res integra in view of the aforesaid Division Bench Judgment, this appeal is found to be devoid of merit. The appeal is accordingly dismissed. No costs. [ DR. VINEET KOTHARI ], J. item No.43 babulal/