A sale of property made in pursuance of a decree for specific performance of an agreement to sell is not an involuntary sale, and therefore does not defeat the right of pre-emption.

1. - This appeal arises out of a suit for pre-emption of a house property situated in the city of Udaipur. Raghunath had two sons Surajmal and Gaurishanker. Surajmal was the elder son from his first wife, while Gaurishanker was the younger one from his second wife Smt. Bhanwaribai. Surajmal executed an agreement to sell the house in dispute in favour of defendant Madanmohan for a sum of Rs. 18,000/- on December 14, 1968. As Surajmal did not execute a sale deed in pursuance of the aforesaid agreement to sell, Madanmohan brought a suit for specific performance of the contract against Surajmal, which was decreed by the court of Senior Civil Judge, Udaipur. Surajmal died during the pendency of that suit and in consequence of the decree for specific performance passed in the suit filed by Madanmohan, a sale-deed was executed by the Senior Civil Judge, Udaipur, in favour of Madanmohan on October 26, 1970. Gaurishanker thereupon filed a suit for pre-emption on May 18, 1971 on the allegation that he was a co-sharer as there was a joint wall between the house of Gaurishanker and the house which was subject matter of sale and the patties of both the houses were made to rest on the joint wall. Madanmohan defendant No. 1 contested the suit on the ground that a partition had taken place between the plaintiff and deceased Surajmal on November 5, 1954 and since both the plaintiff and Surajmal were living separately and were in possession of separate portions of the property, the plaintiff was not a co-sharer of the house sold by deceased Surajmal It was also denied that there was a joint wall between the two houses, but it was asserted by defendant Madanmohan that here were two separate walls. The learned Additional District Judge dismissed the plaintiff's suit for preemption. Hence this appeal has been filed in this Court.

2. The first question which requires determination in this appeal is as to whether the plaintiff is a co-sharer of the property, which was subject matter of sale, and as much he has got a preferential right of purchase in respect of the said property. The plaintiff's case is that the intervening wall between the house in dispute and the plaintiff's house was a joint one between him and his brother Surajmal deceased, who sold the property in dispute to defendant No. 1 and as such he was a partner in the wall and consequently he was a co-sharer in the property sold. The defendant No 1 has pleaded that a partition has taken place between the two brothers during the life-time of Surajmal and that both brothers were in possession of their respective shares since November 5, 1944.

3. It appears from the record that the plaintiff Gaurishanker had earlier filed a suit against Surajmal for possession. In that suit, the plaintiff's case was that Raghunath, father of the plaintiff and Surajmal, was owner of two houses known as 'bada makan' and 'chota makan'. A will was alleged to have been executed by Raghunath on May 16, 1944 giving away 'bada makan' to his sons Surajmal and Gaurishanker in equal sharers, while the "Chhota makan" was given away by Raghunath to his second wife Smt. Bhanwar Bai with full powers of disposal. It was alleged that Raghunath died in May, 1944 while Bhanwar Bai died in May, 1955. Gaurishanker alleged that Surajmal was put in possession of his share of the house some time after Raghuoath's death, but later on Surajmal also took possession of other portions of the house from time to time. In that suit, Surajmal admitted that he was put in possession of the half share of 'bada makan' just before his father's death. He also stated that Bhanwar Bai executed a will on November 5, 1944 by which she gave her property half and half to Gaunshanker and Surajmal and that he was in possession of half share of 'Chhota raakan' by virtue of the will of Bhanwar Bai. The suit for possession filed by Gaurishanker was dismissed by the trial court. The first appeal was heard by a division bench of this Court, being D.B