CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 1/11 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. S.B. CIVIL SECOND APPEAL NO.41/1992 against the decree and judgment dated 15.3.1991 in Civil Appeal Decree No.50/82 – Abdul Zabar & Anr.Vs. Smt. Khatiza. Date of order : 13th October, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. D.K. Parihar for the appellant. Mr. R.K. Thanvi ) for the respondents. Mr. Manish Shishodia) --------- BY THE COURT:- 1. Heard learned counsels. 2. This matter pertains to claim of plaintiff-appellant for the right of preemption on the basis of a common wall situated between the two properties in question, one owned by the plaintiff-appellant and the another over which he claimed the right of preemption. In this very appeal, the question referred below was framed by the learned Single Judge of this Court in the following terms and was referred to the Division Bench for answer due to conflict of decision by Single Bench on earlier occasion:- “Whether co-owner of a wall situated between the two adjacent immovable properties, are co-sharers CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 2/11 within the meaning of Sec.2(1) of the Rajasthan Pre-emption Act, 1966, read with other Provisions of the Act so as to give right to the co-owner of the party – wall to pre-empt the transfer of other immovable property under Sec.6(1) of the Act. 3. The said reference was answered by the Division Bench on 1st October, 2007 in the following terms:- “In the reference in hand, question before us is whether a person having share in a party wall will have the status of a co-sharer or a Partner as contained in Section 6(1)(i) and Section 2(1) of the Rajasthan Pre- emption Act, 1966. This Court in the case of Jagannath's case (Supra) considered this aspect. At the time the Jagannath's case (Supra) was considered, there was no statutory law in force in the area in question. The case was decided with reference to a prevailing custom. Origin of the custom was in Muhammadan law. A custom is fairly defined parameter, but it lacks the precision of a Statute. The dispute before us is in relation to two judgments, one based on antiquated custom and other on the basis of a statute. In our view, the findings in a case based on custom will have to give way to the findings arrived at after considering a Statute which has been brought in to cover the field. We can see that in the Jagannath's case, the right of an owner of a party wall has also been termed to be of a kind that of a neighbour. Right of a neighbour part take the character of vicinage. A right on the strength of vicinage has been decided un-favourably by the Hon'ble CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 3/11 Supreme Court. Even according to Mohammadan law, the character of a co-sharer is dependent on the question whether there was a partition of wall by metes and bonds and after considering that only, the status of a neighbour or a co-sharer is determined. Thus, if the antiquated premises is taken in consideration, then also the status of a co-sharer in relation to a party wall is a proposition which is impregnated with many such thoughts which do not support the proposition that a Partner in the party wall would be a person on whom a right of pre-emption can be conferred. The foundation of the case of Jagannath's case (Supra) being only a custom, based on a personal law. The force of custom 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 prevailing custom, therefore also, a custom based on a personal law looses significance altogether. 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-emption . In this case, it has been recognised that a co-sharer definitely has a right of pre-emption. 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. A common wall supports the structure of the two CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 4/11 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 faces the respective dwellings. 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 house of both sides are part owner of the common wall. 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? 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- CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 5/11 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. 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 vendee in a position wherein he can cause any interference in the domain of non-selling part-owner of the wall. With the discussion hereinabove, we find that the findings arrived at by the learned Single Judge in Dharam Pal’s case (Supra) are more rational and close to the points of view put forward by Hon’ble Supreme Court in the cases of Bahu Ram (Supra) and Atmpa Prakash (Supra). The relevant portion of Para 14 of the judgment is reproduced hereinbelow for ready reference :- “14. ……………. To illustrate, I may point out that there are several plots over which adjoining bungalows or houses belonging to different persons are constructed and they have a common boundary wall which is party wall. If an CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 6/11 adjoining house or bungalow is sold and the owner of the adjoining another bungalow having a common boundary wall filed a suit for pre- emption, his claim for pre-emption is simply on the basis of his being a neighbour. The mere existence of a common boundary wall or a party wall in between two bungalows does not make him a co-sharer in the property sold or a person with a common stair case or common entrance or any other common rights or amenity. Substantially he is only a neighbour and so far as party wall is concerned, the rights and obligations of the two neighbours are so analogous to easement rights and obligations that they should be looked upon as part of the law of easements and not as participators in appendages.” (emphasis applied) 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 we 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 CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 7/11 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. The question having been answered by us, we would remit the cases 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. 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. Sd/ sd/- (MUNISHWAR NATH BHANDARI),J. (BHAGWATI PRASAD). J” 4. Learned counsel for the appellant Mr. D.K. Parihar urged that since he has filed a review petition against the said judgment of the Division Bench dated 1st October, 2007, the Court may await the decision of said review petition. This request is however turned down in view of the fact that as far as this Court is concerned sitting singly, this Court is bound by the answer to the aforesaid question by the Division Bench. 5. Not only this, this Court in another judgment delivered at Jaipur Bench in case of Smt. Rukmani Devi Vs. Prabhu Narayan & Ors. - 2007 (3) RLR 244 dealt with a case of preemption claim on the basis of a common chowk and pole and negatived the said claim observing as under :- CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 8/11 “13. In order to claim the right of pre-emption u/s 6 of the Rajasthan Pre-emption Act, 1966 two conditions are necessary, (1) the pre-emptor should be either a co-sharer or partner in the property transferred and (2) there should be commonness of the stair case or an entrance or other right or amenity common to suit property and the property owned and possessed by the pre-emptor. Section 8 of the said Act further requires a notice by the vendor to the pre-emptor which can be waived if after such a notice the pre-emptor within two months form the date of such notice does not tender or pay the price specified in the notice given u/s 8 of the Act. It is also well settled that rule of estoppel applies in such cases. This Court from the evidence on record finds that the plaintiff had full knowledge of the sale transaction in question and he in fact actively participated in the same and gave up his right of pre-emption after allowing the registration of the sale deed in favour of defendant No.1 without any demuror objection raised during the contemporary period. He was ready and willing to purchase the suit property only for the sum of Rs.11,000/- and the bare perusal of the plaint shows that he kept his right of pre-emption hanging in balance and left to the Court that if the court comes to the conclusion that the real sale consideration was Rs.14,999/- and not Rs.11,000/- then also he would purchase the suit property at Rs.14,999/-. The scheme of the Act shows that once the pre-emptor is put to the notice, he has to exercise this right of pre-emption within two months by paying the price f or which the CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 9/11 transaction in question is going to take place. DW.4 Shankar Lal, vendor himself has stated before the learned trial court that he informed the plaintiff about the said transaction and in fact he was pursuing the plaintiff for the last one year to purchase the suit property but he refused to do so and adopted a dilly-dallying approach towards the same. Thereafter when the transaction with defendant No.1 also was finalised at Rs.14,999/- the plaintiff acquiesced in the matter and actively participated in the said sale transaction and the mere fact that he was present at the time of registration of the sale deed in the Collectorate, which fact has never been disputed and denied by him, shows that he had no objection to the said sale taking place in favour of defendant No.1. In view of the legal position that the right of pre- emption is a weak right and the plaintiff pre- emptor if he waives or gives up his right without raising any objection to the sale taking place in favour of third party, the court should not allow substitution in the sale deed at the instance of such plaintiff pre-emptor who has already given up his right.” 6. The learned counsel for the respondent Mr. R.K. Thanvi submits that the controversy is no longer res integra and in view of the aforesaid binding precedent of the Division Bench of this Court and aforesaid quoted judgment of Single Bench also the learned appellate court cannot be said to have committed any error in allowing the defendant's appeal and dismissing the suit of the plaintiff CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 10/11 by the impugned judgment dated 15.3.1991. 7. Admittedly the suit was decreed by the learned trial court on 28.5.1979 only on the basis of the fact found by the learned trial court that there was a common wall existing between the two properties in question and, therefore, the plaintiff had a right to be substituted in place of vendee on the basis of his right of preemption. The first appellate court, however, reversed the judgment of the learned trial court and allowed the defendant's appeal and held that the plaintiff could not claim any right of preemption on the basis of a common wall between the properties in question. In the present second appeal, the substantial question of law framed by this Court already stands answered upon a reference, by the Division Bench of this Court on 1.10.2007. Irrespective of the fact that a review petition has been filed by the plaintiff-appellant against that Division Bench judgment, the fact remains that the judgment already rendered on 1.10.2007 still holds the field and neither the operation of the same has been stayed by the Division Bench nor the judgment has been set aside yet either in the review petition or even by the Apex Court. Therefore, as far as this Court is concerned, this Court is bound by the answer given by the Division Bench in the aforesaid matter. 8. Accordingly this Court finds no force in this appeal of the plaintiff and the same is liable to be dismissed and the suit filed by the plaintiff on the basis of his claim for right of preemption on account of a common wall between the properties is liable to be CSA – 41/92 - Zahoor Ahmed & Ors. Vs. Abdul Zabar & Ors. Judgment dt.13.10.08 11/11 dismissed and the learned first appellate court cannot be said to have committed any error in dismissing the suit. 9. Therefore, the answer to the question framed above is answered against the appellant-plaintiff and the appeal is dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.57 babulal/-