Honble PRASAD, J.–We are seized of the matter as a refree court. The reference as made is in the subject matter of the decision in a first appeal. The matter of Smt. Sire Kanwar Maloo vs. Daudas Mantri came before the learned Single Judge. After examining the case, he was of the opinion that the following question is involved in the appeal:

"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".

(2). Regarding this question the learned Single Judge was of the opinion that there exists an apparent diversity of opinion in the decisions of this court in the matter of Jagan Nath vs. Radheshyam and Anr., reported in, ILR (1960) 75 and a later decision in the matter of Dharam Pal vs. Smt. Kaushalya Devi - 165 RLR 1989 (2) 826. The learned Single Judge ordered that the matter be placed before the Honble Chief Justice for referring the matter to a larger Bench. The Honble Chief Justice ordered that this case be decided by a larger Bench and hence the matter comes before us.

(3). The Learned Single Judge referred two aforesaid decisions for consideration, therefore, first we take up these two decisions and look into them as to what has been decided in them.

(4). First we take up the matter of Jagan Nath (supra). It has been observed in this judgment :

"Pre-emption was not known to Hindu Law. The law of pre- emption was imported into India by Mohamedan conquerors and was imposed by them in various places so that a right or custom of pre-emption began to be recognized as prevailing amongst Hindus also in some parts of the country. It is settled law that such custom where it exists, must be presumed to be founded on and co- extensive with the Mohammedan law on that subject, unless the contrary be shown. It is not disputed that the right or custom of pre-emption prevails in Jaipur City. The presumption, therefore, is that is founded on and is co-extensive with the Mohammedan Law on that subject.".

"A partner in a party wall is a pre-emptor falling in class I, as a co-sharer. So is a partner in the house. Yet a partner in the house is to be preferred over a partner in a party wall, who is not a partner in the house, but only a partner in the mansion and is almost in the same position as a neighbor."

(5). Thus, it would be seen that the case of Jagan Natth (supra) was decided in the background where there was a custom prevailing in the Jaipur city. No Statutory law was available in Jaipur City governing Pre-emption. The learned Judge has observed as under:

"It is settled law that the custom of pre-emption where it exists, must be presumed to be founded on and co- extensive with the Mohammedan law on the subject, unless the contrary be shown. There is no custom regarding pre-emption prevailing in Jaipur City, which may be at variance with the rules of Mohammedan law."

(6). The learned Single Judge in the case of Jagan Nath (Supra) has extensively quoted from the commentaries on the Mohmdan Law to decide the case as there being no statuary law available in Jaipur in the relevant span of time. It is also quoted by the learned Single Judge that:

"According to Khusafm the neighbor who is postponed to a partner in the right of way is one who is not co-owner of the land on which a party wall stands, and when the neighbor is such a partner he is not to be postponed, but rather to be preferred to a partner in the way. To explain this, suppose that a piece of land belongs to two persons, and that they erect a wall in the midst of it, and then make a partition as to all the rest of the land, so that the wall and the ground on which it stands remains in the joint ownership, the neighbor in such a case is a partner in a part of the thing sold. A partner in the wall, but in nothi

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