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-sharers, which means if they arc found to be in separate possession, it would not be as co-sharer, We find that this is a complete negation of law. In the earlier suit, it was clearly found that the parties were in separate possession of the portions which separate possession continued till the sale in dispute was made. In the earlier suit, it was clearly found that the parties were in separate possession of the portions which separate possession continued till the sale in dispute was made. On mere continuation of co-sharer in separate possession of the joint property does not mean that there is partition or their relationship of co-sharer comes to an end. The relationship of co-osharer comes to only by partition through court or by privateparty in accordance with law. This has not happened in this case. (12). It was then observed by the learned single Judge that since the plaintitff did not file a suit for partition, it would go to show that the plaintiff did not consider at any time that he and Surajmal were in joint possession of the property in dispute so as to claim partition thereof. This again is a misconception of law. For 100 years, co-sharers may not seek partition even if they are not in separate possession, but they will continue to be co-sharers in every inoiely of the properly unless partition is effected in accordance with law. (13). A reading of the earlier decision, which operates as res judicata, shows that this, Chhota makan was inherited by the two brothers from Smt. Bhanwar Bai, real mother of the plaintif and step-mother of the defendant in equal shares under the will. It has also come in evidence that the possession of the respective portions of the house in dispute was occupied by the parties even before the will became operative as they had come in possession of the separate portions of the house during the life time of their mother. The will becomes effective from the date of death of the mother and on the date of her death, they were in possession of separate portions, but under the will they were given half share each in the entire property.The defendant was in possession of more than half share and the plaintiff was in lesser share and his earlier suit to regain that lesser share failed because he did not sue for possession by partition. That is why, the finding was recorded that they were co-sharers and if one co-sharer wants to get possession from the other co-sharer he can do so by seeking partition from the other co-sharer he can do so by seeking partition and separate possession of his share. (14). That is why, the finding was recorded that they were co-sharers and if one co-sharer wants to get possession from the other co-sharer he can do so by seeking partition from the other co-sharer he can do so by seeking partition and separate possession of his share. (14). Admittedly, no partition suit was filed nor any private partition took place after the will became operative. The result would be that both the parties continued to own the entire Chhota makan as co-sharers and once they are co-sharers, the plaintiff as a co-sharer has a right to pre-empt part of the properly which was sold by other brother to Madan Mohan. (15). We, may deal with one of the pleas raised by the defendant that there was partition of Chhota makan during the life time of Surajmal in November,1944 and they were in respective possession since then. The reading of the judgment of this court Ex.8 shows that the father of the parties litigating in that suit gave the house chhota makan to his wife as a full owner and she executed a will giving undivided half share each to both the brothers. Since she died in May,1945, the Division Bench of this court did not accept any such partition of 1944 and by the judgment and decree dated 18th August,1954 it was concluded that both the brothers were owners of the chhota makan in equal share and they were in separate possession of two different portions. In case the plaintiff was in possession of lesser area he could regain his share only by filing a suit for partition and not merely by filing suit for possession. (16). Viewed the case from any angle, it is a clear case that the plaintiff is co-sharer with vendor and as a co-sharer he is entitled to pre-emption under section 6 of the Rajasthan Pre- emption Act, 1966. The findings to the contrary on the point of co-sharer recorded by the courts below are erroneous in law and are set-aside. (17). Accordingly, the special appeal is allowed and the judgment and decree passed by the courts below are set-aside and the suit for possession by pre-emption is decreed. The pre-emptor is directed to deposit the pre-emption amount on or before 28.10.1994. In case the amount is not deposited by that date, the suit for possession by pre-emption would be deemed to be dismissed. The pre-emptor is directed to deposit the pre-emption amount on or before 28.10.1994. In case the amount is not deposited by that date, the suit for possession by pre-emption would be deemed to be dismissed. On deposit, the pre-emptor will be entitled to take out execution in accordance with law. The parties are left to bear their own costs.