Rajasthan High Court - Jodhpur

Premchand vs Mangilal on 15 May, 2025

[2025:RJ-JD:21344]

 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
                     S.B. Civil First Appeal No. 414/2019

1.       Premchand S/o Shri Velji Panchal, Aged About 65 Years,
         R/o Bodigama Chhota, Tehsil Aspur, District Dungarpur
         (Raj.)
2.       Shanti Lal S/o Shri Premchand Panchal, Aged About 31
         Years,      R/o   Bodigama           Chhota,        Tehsil    Aspur,   District
         Dungarpur (Raj.)
                                                                         ----Appellants

                                         Versus
1.       Mangilal S/o Shri Devchand Ji Lohar, R/o Bodigama Chhota,
         Tehsil Aspur, District Dungarpur (Raj.)
2.       Shri Popatlal S/o Shri Devchand Ji Lohar, R/o Bodigama
         Chhota, Tehsil Aspur, District Dungarpur (Raj.)
3.       Smt. Kamla W/o Shri Devchand Ji Lohar, R/o Bodigama
         Chhota, Tehsil Aspur, District Dungarpur (Raj.)
4.       Smt. Chanda Bai W/o Shri Devilal Jain, R/o Nandesair,
         Tehsil Gogunda, District Udaipur.
                                                                       ----Respondents


For Appellant(s)              :     Mr. Narpat Ram
For Respondent(s)             :     Mr. Mahendra Kumar Gurjar &
                                    Mr. Pawan Singh



      HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Judgment

Judgment Reserved on : 02/05/2025 Judgment Pronounced on : 15/05/2025

1. Appellants-plaintiffs - Premchand & Shantilal have preferred

this Regular First Appeal under Section 96 of the Code of Civil

Procedure challenging the impugned judgment and decree dated

10.04.2019 passed by the Additional District Judge, Sangwara,

District Dungarpur in Civil Original Suit No. 09/2018, whereby the

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trial Court dismissed the suit filed by the appellants-plaintiffs for

Pre-emption in respect of the property in question.

2. Facts leading to the filing of this first appeal are that on

18.02.2013 appellants-plaintiffs instituted Civil Original Suit

No.09/2018 against the respondents-defendants with the averments

that the appellants-plaintiffs are in possession of ancestral house

measuring 73.9' x 29' situated at Chhota Bodigama as owners. The

house of respondents-defendants Nos. 1-3 is situated towards

southern side of appellants-plaintiffs house. It was further submitted

that father of the appellants-plaintiffs namely Velji had constructed a

house for father of defendant Nos. 1 and 2 measuring 73.6' x 13.6'

having existed a common wall in between both the houses.

3. It was further alleged that the respondents-defendants had

sold their house through registered sale-deed dated 18.09.2012 to

defendant No.4 - Smt. Chanda Bai for a consideration of Rs.3.00

Lakhs. As soon as, the appellants-plaintiffs came to know about the

said sale deed, they requested the respondents-defendants to cancel

the said sale deed but the respondents-defendants refused to do so.

Thereafter, the appellants-plaintiffs, sent a legal notice to the

respondents-defendants on 20.12.2012 but the defendants did not

move forward, thus, the appellants-plaintiffs filed a suit for Haq

shufa (pre-emption) seeking cancellation of the said sale deed

executed in favour of the respondent-defendant No.4.

4. The defendant Nos. 1- 3 filed their joint written statement

wherein while denying the contents of the plaint, it was pleaded that

the house, though ancestral, was not constructed by the father of

the plaintiffs - Velji rather it was constructed by ancestor of the

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respondents-defendants Shri Gangaram Ji. It was further contended

that since the respondents-defendants are holding separate house,

they need not to obtain prior consent of plaintiffs to sell the property

in question and thus, a prayer for dismissal of the suit was made.

5. On the basis of the pleadings of the parties, the trial Court

framed Five Issues on 13.07.2016, which are reproduced hereunder:

¼1½ D;k oknhx.k] çfroknhx.k la[;k 1&3 }kjk tks foØ; i= fnukad 18-09-12 ds }kjk çfroknh la[;k 4 dks edku foØ; fd;k x;k] gd'kQk (Pre-emption) ds vkèkkj ij Ø; djus ds vfèkdkjh gSa \ &oknhx.k ¼2½ D;k oknhx.k gd'kQk ds vkèkkj ij çfroknhx.k la[;k 1&3 }kjk çfroknh la[;k 4 ds i{k esa fd;k x;k foØ; i= fnukad 18-09-12 dks jnn djokus ds vfèkdkjh gS a \ &oknhx.k ¼3½ D;k oknhx.k ds edkukr o çfroknhx.k la[;k 1&3 }kjk fofØr fd;s xbZ edku dh fnokj fljdrh ugha gksus ls oknhx.k dks gd'kQk dk vfèkdkj gkfly ugha gS \ &çfroknhx.k ¼4½ D;k oknhx.k dk okn i= viw.kZ U;k; 'kqYd ij gS \ &çfroknhx.k ¼5½ vuqrks"k

6. The appellants- plaintiffs, in support of their claim, produced in

evidence PW1 - Premchand, PW2 - Shantilal, PW3 - Ramji Patidar

and Exhibited documents Ex.1 to Ex.12. Whereas, respondents-

defendants produced DW1 - Kamla in evidence. The learned trial

court, after considering the submissions of both the parties, their

pleadings and evidence available on the record, dismissed the suit of

the plaintiffs.

7. Mr. Narpat Ram, the learned counsel for appellants-plaintiffs

contended that the trial Court has committed a serious illegality in

dismissing the suit of the plaintiffs for Pre-emption in respect of the

disputed property. It is contended by the learned counsel for the

appellants-plaintiffs that the house in question is ancestral house of

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the plaintiffs and the defendants and when the trial court

categorically recorded a finding that the ancestors of the appellants

and respondents are same and the house in question was

constructed by the ancestors and once it is established that the

house in question is ancestors and no partition had taken place,

then right of Haq shufa accrues in favour of the appellants-plaintiffs.

8. It is further contended by the learned counsel for the

appellants-plaintiffs that the wall between the plaintiffs and

defendants houses is a joint and common wall and its existence is

sufficient to entitle to the preferential right of the pre-emption under

Section 6(1)(i) or Section 6(l)(ii) of the Rajasthan Pre-

emption Act, 1966 (for short, hereinafter, 'the Act').

9. Per contra, Mr. Pawan Singh, learned counsel for the

respondents - defendants supported the impugned judgment and

prayed for dismissal of the instant appeal.

10. I have considered the submissions of the learned counsel for

the parties and examined the impugned judgment as well as the

record of the trial Court.

11. The principal issue for consideration in the present appeal is

whether the appellants-plaintiffs have established a legal right of

pre-emption over the suit property on the ground of common wall

and contiguity, and whether the findings of the learned trial court

suffer from any perversity or misappreciation of evidence.

12. Before dealing with the submissions of the learned counsel for

the parties, in the light of various rulings cited at the Bar, this court

thinks it fit and proper to consider the relevant provisions of law and

citations referred at the Bar.

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13. For ready reference, sub-Section (1) of Section 6 of the Act,

1966 is reproduced as Under:-

"6. Persons to whom right of pre-emption accrues. - (1) Subject to the other provisions of this Act, the right of pre- emption in respect of any immovable property transferred shall accrue to, and vest in, the following classes of persons, namely:-

(i) Co-sharer or partner in the property transferred;

(ii) Owners of other immovable property with a stair-case or an entrance or other right or amenity common to such other property and the property transferred, and

(iii) Owners of property servant or dominant to the property transferred."

15. The definition of co-sharer as defined in Clause (i) of Section 2 of the Act of 1966 is also reproduced as under: -

"2. Definitions. In this Act, unless the subject or context requires otherwise. -

(i) "co-sharer" used in relation to any immovable property, means and person entitled as an owner or a proprietor to any share or part in such property, whether his name is or is not recorded a such owner or proprietor in the record of right or in any register prepared in accordance with law;"

14. In the instant case, the appellants, to invoke the right of pre-

emption, have primarily relied on the alleged existence of a

"common wall" between their houses and the suit property being

ancestral.

15. In Sire Kanwar Maloo vs. Shri Daudas Mantri - 2008 (1)

CT (Raj.) 407 = 2008(1) RLW (Raj.) 781, a Division Bench of

this Court answered a reference in negative and held that co-

owner of a party wall (common boundary wall) situated between the

two adjacent immovable properties are not the co-sharers and have

no right to pre-empt the transfer of other immovable property under

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Section 6(1) of the Rajasthan Pre-emption Act , 1966. Para 1 and

32 to 39 of the judgment are reproduced as under :-

"1. We are seized of the matter as a referee 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 to 31 ...........................

32. 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.

33. 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.

34. It 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 cause 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

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neighbour to get into his house to his determination. 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.

35. 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?

36. As part owner of the wall, two neighbour 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.

37. Premises on which the doctrine of right of pre-emption 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.

38. 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

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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 herein below 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 pre-emption, his claim for pre-emption is simply on the basis of his being a neighbour. The mere existence of a common boundary does not make him a co-sharer in the property sold or a person with a common staircase or common entrance or any other common rights or amenity. Substantially he is only a neighbour and so far as party wall is concerned, 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 is append-ages."

39. 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 un-constitutional, 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

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that no such right would accrue to a part owner of a wall, call it by any name co-owner or co-sharer."

16. It is well settled that the right of pre-emption is a weak right

and must be clearly established through strict pleading as well as

cogent evidence. The burden lies squarely on the person asserting

the right to demonstrate both the legal basis for such a claim--

whether statutory, customary, or contractual--and the factual

preconditions required to exercise such a right.

17. In light of the answer given to the reference made by the

Division Bench in case of Sire Kanwar (supra) and the findings

recorded by the trial court on the Issue Nos. 1 and 2, this Court is of

the opinion that the appellants-plaintiffs failed to prove their right of