JUDGMENT
Gopal Krishna Sharma, J.
1. This second appeal has been preferred against the judgment of the Addl. District Judge, Udaipur dated 4-4-1975, by which he set aside the judgment & decree passed by the Additional Civil Judge, Udaipur dated 14-4-1966.
2. The appellants filed a suit for pre-emption with regard to one Ora and part of Patsal which have been shown as ‘kha’ and ‘Gha’ in the map attached with the plaint. According to the map submitted with the plaint the portion shown in yellow colour belongs to defendant Roshan Lal and on the North of this house the Ora ‘Kha’ exists and part of Patsal ‘Gha’ have been shown in red colour. Beyond this Ora and Patsal there is house of the plaintiff which has been shown in light pink colour. It is not disputed that the parties are co-sharers in the property in question. The Ora ‘Kha’ and part of Patsal ‘Gha’ were sold by Dayal Singh defendant No. 2 to Roshan Lal defendant No. 1 on 29-8-1961 for a sum of Rs. 500/-. This disputed property is situated at Bapnoki Pole in city of Udaipur. The disputed property was in a dilapidated condition and the plaintiff could not have any knowledge of the said sale till they were informed on 9-10-61 by one Chainaram. The plaintiffs informed both the defendants on the same day by telegram expressing that they had a right of pre-emption to this property & would like to purchase the property after paying Rs. 500/- and also willing to pay the expenses incurred in connection with sale. The plaintiffs also offered this amount to the defendant Roshan Lal on 10-10-1961 but he refused to accept the money and re-transfer the property in the name of plaintiffs. The plaintiffs are members of the joint Hindu Family and Shanti Lal purchased the upper storey of the disputed Patsal from defendant No. 2 Dayal Singh. It was also alleged that the plaintiffs have purchased one Ora in the north of the disputed Ora ‘Kha’ which has been shown in the map attached with the plaint as ‘Ka’ from Shanker Lal. The Patsal infront of this Ora in common property of Shanker Lal and Dayal Singh and thus they have a preferential right of pre-emption. It was also alleged that the upper storey of the disputed Ora belong to Bakhtawarlal plaintiff. This upper storey has fallen down and was not in existence when the suit was filed but still the plaintiffs have a right of pre-emption through it The portion of the Patsal which is alleged to have been sold by Dayal Singh to Roshal Lal defendant No. 1 is their joint property and Dayal Singh alone has no right to sell it. In this way according to the plaintiffs they are shafi-e-khalit or shafi-e-jar. It was also prayed that if in case the Court comes to the conclusion that the plaintiff have no preferential right of pre-emption over the suit property then certain recitation in the sale-deed which are wrong and adversely affect their right should be deleted from the sale-deed.
3. The defendants have contested that suit. It was stated that the plaintiffs came to know about this sale-deed after two-three days of the purchase of the property but they did not assert the right of pre-emption and did not tender its price and therefore, they cannot now claim this right as it is belated. It was denied by the defendants that the Chowk and the Chabutri is not the sole property of the defendants and it is denied that it is a joint property of the defendants and the plaintiffs. It was also denied that the Ora’ shown as ‘Kha’ was purchased by Shanti Lal from Shanker Lal and also denied that the ‘Patsal’ is a joint one. It was also pleaded that the wall between the Oras was not joint wall but belong to Dayal Singh exclusively. No construction exists over these ‘Oras’ which themselves are in dilapidated condition. It was admitted that there is a kitchen on the Patsal which belongs to Takhat Singh and it was denied that it was purchased by Shanti Lal. So the defendants have denied that the plaintiffs have any right of pre-emption over the disputed property. It was also pleaded that the chowk shown in the same sale-deed belongs to Roshan Lal defendant No. 1 and his brother Himmat Singh in which Shanker Lal and Dayal Singh had no share. Similarly the southern and western wall of the Ora belongs exclusively to Roshan Lal. It was also pleaded that the defendant Roshan Lal has a preferential right of pre-emption because the disputed property belongs to him and he has other easementary rights on this property.
4. On the pleadings of the parties the trial Court framed 13 issues. After recording evidence of both the parties and hearing them, the learned Addl. Civil Judge decreed the plaintiffs suit for pre-emption with regard to disputed property. Aggrieved by this judgment an appeal was preferred by Roshan Lal which was disposed of by the Addl. District Judge, Udaipur vide his judgment dt. 4-4-1975. The learned first appellate Court accepted the appeal and set aside the judgment and decree granted by the trial Court and dismissed the plaintiff’s suit.
5. No body appeared on behalf of the respondents. Shri Dalpat Raj learned Counsel for the appellants argued that there is only one point involved in this second appeal and that point is with regard to preferential right of pre-emption over the disputed property. He had argued that it is not disputed that parties are co-sharers in the disputed property. The dispute is with regard to Ora ‘Kha’ and part of Patsal ‘Gha’. It is not denied by the defendant-respondent Roshan Lal that the plaintiffs-appellants are co-sharers and that they had purchased the Ora shown as ‘Kha’ in the site-plan submitted with the plaint. It is also not disputed that the roof of the disputed Ora ‘Kha’ belongs to plaintiff-Bakhtawarlal. It is also not disputed that there is a kitchen on the roof of the Patsal ‘Gha’ and this kitchen is of the plaintiffs. The learned first appellate Court did not agree with the judgment of the trial Court on the ground of preferential right of pre-emption. According to the learned Addl. District Judge, there is no preferential pre-emption right. It was argued by Shri Dalpat Raj that the finding of the first appellate Court with regard to preferential pre-emption right is self-contradictory. Para 23 of the judgment was read over to him. In this para the learned Addl. District Judge has observed as under:
The trial Court has, therefore, erred in giving this finding that the plaintiffs have a preferential right of pre-emption than the defendants. It is well settled law that the right of pre-emption is a very weak right and the pre-emption suit should only be decreed if the plaintiff is able to establish his superior right then the vendee. In the present case the plaintiff and defendants both are co-sharers in the disputed property and as such the trial Court has erred in giving preference to the plaintiffs and decreeing the plaintiffs suit.
6. The learned Additional District Judge on one hand observed that a settled law is that for a right of pre-emption the plaintiffs has to prove that he has superior right than the vendee. On the other hand he observed that the trial Court has erred in giving this finding that the plaintiffs have preferential right of pre-emption than the defendant. It has two meanings either the learned Addl. District Judge was of the view that there could not be any preferential right of pre-emption or he was of the view that there is a preferential right of pre-emption but the plaintiffs have failed to prove that right. While observing in this para of the judgment he has not clearly specified and given the reason how the trial Court has erred in finding that the plaintiffs have preferential right of pre-emption. It seems that the learned ADJ could not understand the law regarding pre-emption and could not understand the preferential right of pre-emption of a property.
7. In such circumstances where it is an admitted position that both the parties are co-sharers in the disputed property, both the parties have right of pre-emption over the disputed property and in such circumstances what the Court is to examine is which party has preferential and superior right of pre-emption than the other party. Now the right of pre-emption is no right and it is a very weak right but this or it can be said to be a secondary right. It is a right to acquire the property which is going to be sold and in the case of co-sharer where both the parties have equal share over the disputed property then which party has superior right or which party has a preferential right over the disputed property has a pre-emption right.
8. In Bishan Singh and Ors. v. Khagan Singh and Anr. 1958 Supreme Court 838, it has been observed by the Hon’ble Supreme Court as under:
The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right called the primary or inherent right. The pre-emption has a secondary right or a remedial right to follow the thing sold. It is a right of substitution but not of re-purchase i.e. the pre-emption takes the entire bargain and steps into the shoes of the original vendee. It is a right to acquire the whole of the property sold and not a share of the property sold. Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. The right being very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimants of a superior or equal right being substituted in his place.
9. In the case of Jagan Nath v. Radhey Shyam and Anr. ILR 10 (Raj.) page 75 the Custom of pre-emption was discussed and the matter regarding co-sharer was involved. In this case the dispute was with regard to the property which was claimed by both the parties as a right of pre-emption by way of co-sharer. In that case the question was considered with regard to the fact that the plaintiff is entitled to a decree for pre-emption if buyers belong to the same class of pre-emptors as he himself. The another point discussed in that case was whether the plaintiff had a preferential right over the defendant. While dealing the law of pre-emption it was observed that “parties are partners in the house. A partner in the house is to be preferred over a partner in a party wall. For a partner in party wall, although he is a co-sharer, is almost in the same position as a neighbour. For no part of his premises over-looks the premises sold. Nor does he share any part of the house used by the residents of the premises sold. It was also observed in that case that the flat owned by the plaintiff and that sold by the defendants No. 2 and 3 are situated opposite one another on the same floor. They over-look one another and the way of egress and ingress is along part of a balcony and stairs owned jointly by the owners of the two flats While discussing the law of pre-emption it was observed that the plaintiff who is a partner in the house within the sense of the term used by Bailia and Ameer Ali has a preferential right over defendant who is in the mansion and partner in the party wall. The plaintiff is, therefore, entitled to pre-emption the whole of the property which was purchased by defendant No. 1 under the sale-deed.
10. The case of Jagan Nath (supra) is identical to the present appeal. In this case according to the pleading of the parties the defendant Roshanlal has a wall on the northern side of his house adjacent to the disputed Ora ‘Kha’ and Patsal ‘Gha’. The trial Court in its judgment has concluded that the northern wall of the house of Roshan Lal defendant is not a common wall but it is a separate wall. Ora ‘Kha’ and Patsal ‘Gha’ had separate southern wall while Roshan Lal had separate northern wall of his house. The reason given by the trial Court for this conclusion is a correct reason and after perusing the judgment of both the lower Courts I agree with the findings of the learned trial Court in this respect. The finding of the trial Court that the Ora marked ‘Ka’ in the site-map was purchased by Shanti Lal from Shanker Lal. I also agree with the finding of the trial Court that the kitchen over roof of Patsal ‘Gha’ and the roof over Ora ‘Kha’ belong to plaintiffs. No doubt, all the parties are co-sharers but in view of the fact and circumstances of this case the plaintiffs have certainly preferential right of pre-emption than the defendant Roshan Lal. Being co-sharer the defendant Roshan Lal had only a wall attached to the southern wall of Ora ‘Kha’ and Patsal ‘Gha’. Roshan Lal has no portion under his control or under his possession towards the portion marked with light pink colour in the map attached with the plaint. The plaintiffs have more rights or say superior rights than the defendant Roshan Lal as far as this disputed property is concerned. As mentioned above and also observed by Hon’ble Supreme Court and by this Court in the case of co-sharer which party has a better right, a superior right or a preferential right is to be seen. The learned trial Court has given reason and has correctly arrived at the conclusion that the plaintiffs have preferential right of pre-emption than the defendant Roshan Lal. I do not agree with the conclusion arrived at by the learned first appellate Court and he has not correctly appreciated this point.
11. In view of my above observation, I am of the opinion that the judgment of the learned first appellate Court is not correct judgment and the appeal of the defendant Roshan Lal was wrongly accepted by the Additional District Judge.
12. The appeal is, therefore, accepted. The judgment of the first appellate Court dated 4-4-1975 is set aside and the judgment of the Additional Civil Judge, Udaipur dated 14-4-1966 is maintained with no order as to costs.