Vineet Kothari, J. - (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 within the meaning of Section 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 Section 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 Preemption 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 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 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 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 preemption 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 adjoining house or bungalow is sold and the owner of the adjoining another bungalow having a common boundary wall filed a suit for preemption, 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. 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 unconstitutional, 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 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.
(3.) 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.;