JUDGMENT 1. - These two cross appeals arise out of judgment and decree of learned District Judge, Doongarpur in Civil Original Suit No. 696 wherein plaintiff Ramesh Kumar claimed pre-emption right as a co-sharer in respect of a residential house situated in Doongarpur. The basis on which the plaintiff claimed right under Section 6 of the Rajasthan Pre-emption Act, 1966 was a common wall between the two houses one belonging to the plaintiff and the oilier. of the defendant, which other house or suit property was sold by defendant No. 1 Poonam Chand to defendant No. 2 Fatima W/o Kutubuddin. 2. The learned trial Court has decreed the suit by its impugned judgment dated 20.1.1998 holding that the plaintiff had a right to be substituted in the said sale deed made by defendant No.1 in favour of defendant No. 2 on 20.2.1998 if he agrees to pay the market value of the property Rs. 3,50,000/- and deposits the expenditure of registration. 3. The plaintiff has approached this Court by way of present appeal on the ground that since the sale deed disclosed the consideration of sale only at Rs. 2,00,000/- the learned trial Court could not have directed the payment of Rs. 3,50,000/- on market value of the said property, whereas the plaintiff was entitled to be substituted in the said sale deed on the basis of aforesaid right of pre-emption on payment of Rs. 2 lacs only. 4. The cross appeal No. 128/1998 has been filed by defendant No. 2 Smt. Fatima challenging the aforesaid judgment and decree. 5. The learned counsel for respondent Mr. M.S. Panwar has brought to the notice of the Court that recently the Division Bench of this Court in Lrs. of Smt. Sire Kanwar Maloo v. Shri Daudas Mantri, reported in 2007 (3) DNJ (Raj.) 1661 after considering the two different opinions of learned Single Judges of this Court on right of pre-emption under Section 6 in the case of Jagan Nath v. Radheyshyam and Anr., ILR (1960) 75 and later decision in the case of Dharam Pal v. Smt. Kaushalya Devi, 1989 (2) RLR 286 has held that on the basis of a common wall between the two premises, the plaintiff cannot be said to have any right of pre-emption over a contiguous property and cannot claim any right of pre- emption under Section 6(1)(i) of the aforesaid Act. It would be appropriate to reproduce paragraph 32 to 37 and 39 of the said judgment. 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. If 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 course 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 neighbour to get into his house to his detriment. 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 neighbours 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 use is restricted to wall only then to what extent his rights are to be recognized? 36. As part owner of the wall, two neighbours 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 251 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 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. 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 unconstitutional, 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 that no such right would accrue to a part owner of a wall, call it by any name co-owner or co-sharer." 6. Thus, the position of law with regard to common wall in the cases of pre-emption has now been settled by the Division Bench of this Court in the aforesaid manner holding that on the basis of a common wall such right of pre- emption as co-sharer cannot be claimed. 7. The sole basis on which the present suit has been decreed by the learned trial Court is the common wall existing between the two premises, which premise cannot be sustained in view of the aforesaid judgment and binding precedent of the Division Bench of this Court. 8. The contention of the learned counsel for the appellant that the pipeline carrying water to his house came through the said common wall also does not improve the case of the plaintiff-appellant. That would also amount to use of such common wall as held by the Division Bench in the aforesaid judgment. 9. Accordingly, the appeal of the appellant vis. No. 53/1998 is found to he devoid of merit and the suit filed by the plaintiff vis. Civil Suit No. 6/1996 could not have been decreed by the learned trial Court, the same deserves to be accordingly rejected and the same is hereby dismissed. 10. The cross appeal filed by defendant Smt. Fatima accordingly deserves to be allowed and the same is hereby allowed and the impugned judgment of the learned District Judge, Doongarpur dated 2011' January 1998 is set aside. 11. No orders as to costs.Appeal dismissed and Cross Appeal allowed *******