The main legal point established in the judgment is that a person having a share in a party wall does not have the right of pre-emption under the Rajasthan Pre-emption Act, 1966.

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 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 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 recognised 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 Rams 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 cosharer 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 an