JUDGMENT : Banerji, J.:— This appeal arises in a suit brought by the first respondent to enforce his right of pre-emption in respect of a house situated in the city of Benares sold by the second defendant to the first defendant who is the appellant here. The suit was based on custom which admittedly exists in that part of the city of Benares in which the property in suit lies. It has been found by both the Courts below that the preliminaries required by Mohammedan Law which is the law applicable to a case like this were performed by the plaintiff. The only question is whether he has a right to pre-empt the property. 2. The plaintiff's house lies to the north of the house in dispute; that of the defendant vendee lies to the south of it, and is adjacent to it. It has been found and the finding must be accepted as conclusive that apertures for the passage of light into the plaintiff's house open towards the disputed house and that rain water from the eaves of plaintiff's house falls on that house, so that the plaintiff enjoys rights of easement over the house sold. 3. The plaintiff claims that he is a partner of the vendor in the appendages of the said house, and that he has priority over the vendee who is only a neighbour. The Court below have found in favour Of the plaintiff and granted him a decree. 4. According to Mohammedan Law the right of pre-emption appertains (1) to a partner in the property sold, (2) to a partner in the immunities and appendages of the property (such as the right to water and to roads), and (3) to neighbours, each class taking precedence over the class which follows. Consequently a partner in the immunities and appendages has priority over a neighbour, the reason being that he participates with the vendor, which a neighbour does not. (Hidaya, Vol. III, page 564). It is contended on behalf of the appellant that as the plaintiff has only a right of easement over the property sold, he is not a participator in the appendages of that property and is not a pre-emptor of the second class. (Hidaya, Vol. III, page 564). It is contended on behalf of the appellant that as the plaintiff has only a right of easement over the property sold, he is not a participator in the appendages of that property and is not a pre-emptor of the second class. It is urged that as the words shuffa (pre-emption) means conjunction, there must be a conjunction arising either from vicinage or from partnership of some kind, that there must be a community of interest between the vendor and the pre-emptor and not a conflict of interest such as of necessity existed between the owner of the dominant tenement and the owner of the servant tenement, and that consequently the owner of the dominant tenement or the owner of a servant tenement is not a pre emptor of the second class, i.e., a Shajfi-i-Khalit. Reliance is placed on the Hidaya and on the ruling of this Court in Shaikh Karim Bakhsh v. Kamar-ud-din : [1874] N.W.P. H.C.R., 377, There is no doubt much force in this contention, but the authorities appear to support the conclusion of the Courts below. In Mr. Ameer Ali's Mohamedan Law, Vol. I, page 60, 3rd Edition a Shaffi-i-Khalit is said to be a pre-emptor by virtue of a right of easement over the property sold; and in Wilson's Anglo-Mohammedan Law, page 399, the owner of a dominant tenement as well as the owner of a tenement which is the servant tenement of the property sold are declared to be pre-emptors of the second class. In Chand Khan v. Nizamat Khan : [1869] 3 B.L.R., 296, A.C., which was referred to on behalf of the respondent, it was held that where the plaintiffs land and that sold were subject to the same servitude, the plaintiff had a right of pre-emption as Khalit. Whether that view is in accordance with Mohammedan Law or not, it is needless to consider, as in the present case the plaintiff's house and the house sold are not subject to the same servitude, and consequently the question determined in that case does not arise. I may observe, however, that Mr. Karamat Husain, the learned Counsel for the respondent, whose knowledge of Mohammedan Law is extensive, informs me that he has not been able to find any authority in the recognised text books which support that view. I may observe, however, that Mr. Karamat Husain, the learned Counsel for the respondent, whose knowledge of Mohammedan Law is extensive, informs me that he has not been able to find any authority in the recognised text books which support that view. In Baillie's Digest of Mohammedan Law, which is based on the well-known work, the Fatawah Alamgiri, there are passages which show that the owner of a dominant tenement has a right of pre-emption in respect of the servant tenement, and that the owner of a servant tenement has a similar right in respect of the dominant tenement. The learned authority puts the following case (p. 484):— “The lower part of a house belongs to two persons, one of whom owns the upper part jointly with a third party, and sells his share in both the lower and the upper’ pans of the house,” and observes that “the partner in the lower has the right of pre-emption with regard to the share in it, and the partner in the upper has ‘the right of pre-emption in regard to the share in it; and the partner in the lower has no right of pre-emption in the upper nor the partner in the upper any right of pre-emption in the lower; for the partner in the lower is only a neighbour to the upper or a share in its right when the way to the upper is through the lower**** and partner in the substances is entitled to the preference.” The passage I have emphasised shows that when the owner of the property sold, has a right of way over the property of another, the latter is regarded as a partner in the rights of the property sold; and is thus a pre-emptor of the second class as Shaffi-i-Khalit. Again, at page 485, it is stated that where the upper floor of a mansion is sold, “if the way to the upper floor he through the mansion of a third party the owner of the mansion in which the way lies, has a preferable right to the pre-emption of the upper.” The passages declare the rights of pre-emption of the owner of a servant tenement. The right of the owner of a dominant tenement is affirmed in the following passage at p. 486. The right of the owner of a dominant tenement is affirmed in the following passage at p. 486. “If a mansion is sold in which one person has a way and another a channel of water, the former has the right of pre-emption rather than the latter.” Mr. Karamat Husain has cited a passage from the Fatawah Alamgiri, Book on Pre-emption, Chapter II, p. 167, which is also to the same effect and declares that if a house is sold and a man has a way therein, the owner of the way has a right of pre-emption. Upon these authorities it must be held that if a person has a right of way or of the flow of water over the property sold, he must be regarded as a partner in the appendages of the said property and to have the right of pre-emption in regard to it. The case of Shaikh Katim Bakhsh v. Kamar-ud-din : [1874] N.W.P. H.C.R., 377, referred to by the learned Vakil for the appellant, does not lay down anything inconsistent with the above view. It was held in that case that where there are appurtenances to two properties, the owner of one of them can claim pre-emption in respect of the other. But this does not exclude the rights of others, who, as pointed out above, may also be regarded as Shaffii-Khalit. 5. As the plaintiff in the present case has the right of flow of water over the disputed property, he has the right of pre-emption as a Khalit, and has priority over the vendee who is only a neighbour. This appeal must, I therefore, fail, and is accordingly dismissed with costs.