Honble MITAL, C.J. - On 14th of December, 1968, Surajmal agreed to sell house in dispute which is part of a house known as Chhota makan for a sum of Rs. 18,000/- to Madan Mohan. Pursuant to the agreement of sale, Madan Mohan filed a suit for specific performance of contract and the suit was dererecd. Pursuant to the decree, sale-deed was executed on 26.10.1970.

(2). Gauri Shanker, who is step-brother of Surajmai filed suit for pre-emption on 18th May 1971 on the ground that he was a co- sharer with the vendor in regard to the house sold and under section 6 of the Rajasthan Pre-emption Act, 1966, he was entitled to the decree of possession by pre-emption. The suit was contested on the ground that there was no relatioship of co-sharer between the plaintiff and the vendor.

(3). On the contest of the parties, two issues were framed, the english version of which are as follows; —

"1. Whether the plaintiff is a co-sharer in the property and so he has got a right of pre-emption ?

2. Whether there is joint wall on which the slabs of both the houses rest and if so due to this, the plaintiff has got a right of pre-emption?"

(4). After evidence was led, the trial court as well as the learned single Judge of this court dismissed the suit and this is special appeal by the pre-emptor.

(5). The issues goes to show that under first issue it had to be seen whether the plaintiff and vendor are co-sharers of the property sold or not and even if they were not found to be co-sharers, under issue No. 2 whether the common wall was jointly owned by the parties and gave a right of pre-emption.

(6). The courts below decided the issues against the plaintiff and for that reason, the suit was dismissed by them.

(7). We have gone through the entire case and are of the opinion that the matter has been dragged in discussion in the two judgments unnecessarily in view of document Ex.8, which is a judgment of the Division Bench of this Court between the plaintiff and the vendor wherein there was a litigation between them regarding the Chhota makan, which is the one in dispute here. In that case, the pre-emptor was the plaintiff and he sought possession of the portion which has now been sold and was in the exclusive possession of the step brother, who is vendor in this case, A reading of the judgment shows that utimately is was found that both the brothers were co-sharers as they got the entire Chhota makan on the basis of will executed by the mother of the plaintiff and, therefore, the suit for possession of the excess share which was in possession of the defendent was dismissed with observation that the defendant was in possession of the excess share as a co-sharer and to seek possession of his half share, the plaintiff had to file a suit for possession by partition.

(8). In that suit, it was important to decide whether the parties were co-sharers or not and that decision has been rendered and will operate as res judicata between them.

(9). It appears that both the courts below lost sight of this importent aspect of law although they have referred to earlier decision.

(10). Referring to the judgment of the learned single Judge, we are of the view that he came to an erroneous view of law when he observed that since the parties were in exclusive possession of separate portions, it could not be held that they were co-sharers. The learned single Judge then observed as follows; —

"It may be observed that this court in the earlier decision did not come to the conclusion that the parties were in joint possession of the entire properly or that they were still holding possession over different apartments as co-sharers thereof. What this court observed was that if the plaintiff thought that the property left by Smt. Bhanwar Bai was joint property then he should bring a suit for partition and not a suit for possession."

(11). The aforesaid quotation goes to show that the learned single Jude was of the opinion that unless they jointly occupied the house, they could not be called co-sh

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