JUDGMENT 1. - This civil first appeal is directed against the judgment and decree dated 23.07.1983 as passed by the District Judge, Pratapgarh camp Chittorgarh whereby the learned District Judge has dismissed the civil suit (C.O No. 44/1979: Old No.1/1975) filed by the plaintiffs-appellants claiming the right of pre-emption under the provisions of the Rajasthan Preemption Act, 1966 (hereinafter referred to as 'the Act') in relation to the property purchased by the defendants. 2. The relevant facts and background aspects of the matter could be taken into comprehension thus: The plaintiffs-appellants filed the suit aforesaid on 27.01.1975 with the averments that the defendants had purchased the suit property situated at Sadar Bazar, Chittorgarh from Sukhaji son of Khemaji, Phoolchand son of Sukhaji, and Bhanwarlal son of Sukhaji Jeengar Mochi, resident Ghosunda on 16.02.1974 and got the document registered on 18.02.1974. The plaintiffs stated the description of the suit property as being comprised in two parts: one being that of a shop and two medies thereupon; and second being a room and a medi thereupon, situated towards the northern side of the previously described shop. The plaintiffs alleged that the defendants had purchased the aforesaid property only for a sum of Rs.25,000/- but in order to escape pre-emption, stated the consideration at Rs.33,000/- in the document of sale. The plaintiffs pointed out that from out of the suit property, the shop at the ground floor was on mortgage with Ugam Bai Pokarna wife of Mishrilal Pokarna for Rs.8,000/- and a medi on the shop was on mortgage with Mishrilal Pokarna for Rs.2,000/-. 3. The plaintiffs pointed out that from out of the suit property, the shop at the ground floor was on mortgage with Ugam Bai Pokarna wife of Mishrilal Pokarna for Rs.8,000/- and a medi on the shop was on mortgage with Mishrilal Pokarna for Rs.2,000/-. 3. The plaintiffs claimed their right of pre-emption on the grounds that the wall between their property and the property in dispute was joint throughout and up to the three floors; that the way leading to the medies at the upper floors and the guwadi was through the Mochiyon Ki Pole, which was in the ownership of the plaintiffs; that the rain water from their property was being drained on the staircase of the suit property; that the staircase of the property in dispute opened into the pole and the staircase itself was lying on the plaintiffs' land; that the staircase was also joint and the ventilators in their (plaintiffs') staircase were opening towards the staircase of the suit property; that the chowk that had been sold by Sukhaji and his sons to the defendants was not of the exclusive ownership of the vendors but was of the joint ownership of the vendors and the plaintiffs; that the water from the two rooms in the guwadi was being drained into the joint chowk of the parties that would flow on towards the road through the pole and the passage to the said two rooms of the defendants and the place for discharging water were common between the parties. 4. It was alleged that the defendants or their vendors did not serve any notice before the disputed sale transaction though the plaintiffs had the pre-emptive right to purchase the suit property. The plaintiffs further averred that they had served a notice upon the defendants requiring them to hand over the suit property after receiving Rs. 25,000/- but the defendants did not accede to the request. 5. The plaintiffs prayed for the relief of execution of the sale document from the defendants in their favour on the sale consideration of Rs.25,000/- and also prayed that they be allowed the right of getting the mortgage redeemed and for that purpose, the mortgage amount be reduced in the sale consideration. 5. The plaintiffs prayed for the relief of execution of the sale document from the defendants in their favour on the sale consideration of Rs.25,000/- and also prayed that they be allowed the right of getting the mortgage redeemed and for that purpose, the mortgage amount be reduced in the sale consideration. The plaintiffs also prayed in the alternative that in the event of the defendants so pleading and the Court coming to the conclusion that they had no right of pre-emption in relation to the shop in mortgage with Ugam Bai then, after reducing the price relating to the said shop, the remaining property be allowed to them in pre-emption. 6. The defendants in their written statement, as filed on 03.07.1975, averred, inter alia, that they had purchased the three storeyed shop and the description by the plaintiffs of the second and third storeys as medies was not correct inasmuch business was being carried on in the said second and third storeys too. The defendants also alleged that the southern side neighbourhood had not been correctly stated as that of the plaintiffs' property because on the southern side was situated the defendants' own shop. While further denying the allegations of sale price being Rs.25,000/- only and asserting that they had purchased the property for a sum of Rs. 33,000/-, the defendants denied the claim of pre-emption with the averments, inter alia, that the wall between the three 5 storeyed shop and the plaintiffs' property was not the joint one. The defendants further denied the allegation that the property in question was being reached through a pole belonging to the plaintiffs and asserted that the said pole was of their ownership after having been purchased from Sukhaji Mochi. The defendants further denied that the plaintiffs drained water from the second floor of their property on the suit property and asserted that the flow of the water was on the southern side towards the public road. The defendants also denied that the door of the staircase opened into the pole; and alleged that the staircase of the plaintiffs' property and that of their property were separate. The defendants also pointed out that the staircase of the plaintiffs had been constructed of stone slabs on the northern side whereas that of their property on the southern side was of bricks. The defendants also pointed out that the staircase of the plaintiffs had been constructed of stone slabs on the northern side whereas that of their property on the southern side was of bricks. The defendants further alleged that the chowk on the northern side of their staircase had also been sold to them and had never been joint with the plaintiffs. The defendants, thus, denied the right of pre-emption as claimed by the plaintiffs and submitted that there was no need of serving any notice upon the plaintiffs in relation to the said sale transaction. 7. The defendants also alleged that themselves and the vendors were of the same caste while the plaintiffs were of different caste and the plaintiffs would not acquire any right in the suit property. It was also asserted that on 08.04.1974, the plaintiffs had executed an agreement accepting the defendants as the owners of the property and had apparently waived their right of pre-emption. The defendants further asserted that the suit property being a three storeyed shop, per Section 5 of the Act, right of pre-emption would not accrue. It was also asserted that they had purchased two rooms in the disputed guwadi whose doors opened towards the south and as the plaintiffs had not claimed pre-emption in relation to such other property, they would not be entitled to pre-empt the suit property. 8. The defendants also took an objection that the plaintiff No.5 Jadav Bai had filed the suit while joining other persons who had no right of pre-emption and as such, the suit was not maintainable. There were taken other objections on the maintainability of the suit, on correct suit valuation and court fees; and the defendants also claimed compensatory costs. 9. The defendants also took an objection that the plaintiff No.5 Jadav Bai had filed the suit while joining other persons who had no right of pre-emption and as such, the suit was not maintainable. There were taken other objections on the maintainability of the suit, on correct suit valuation and court fees; and the defendants also claimed compensatory costs. 9. In this suit, though initially the issues were framed on 09.05.1975 and the matter was posted for the plaintiffs' evidence but then, during the course of the statement of the plaintiff Gopal Lal PW-1, the plaintiffs moved an application for amendment of the plaint, particularly to take the pleading 7 regarding valuation of the shop in mortgage, that was allowed; and by way of amendment, the plaintiffs pleaded that if the Court would come to the conclusion that the right of preemption was not available in relation to the shop on mortgage with Ugam Bai, after deducting the value of the said shop at Rs.20,000/- or whatever established, the remaining property be allowed to them. The plaintiffs also moved an application for amendment of issues whereupon the issues were amended on 25.04.1977; and finally, the case was considered on the following issues:- 1- vk;k okni= dh dye la[;k 1 esa of.kZr lEif+Rr ij oknhx.k dk gd'kQk okni= dh dye la[;k 3 esa of.kZr vk/kkjksa esa yxus esa lEifRr dks [kjhn djus dk vOoy gd gS\ 2- vk;k izfroknhx.k fooknxzLr lEifRr dks 25]000@& esa og djkdj xyr xSj ls 33]000@& dk fodz; i= djk;k vxj ,slk gS rks okni= ij izHkko\ 3- vk;k izfroknhx.k dh nhxj lEifRr fooknxzLr edku esa gksus esa Hkh fooknxzLr lEifRr dks gd'kQk ls [kjhnus dk vf/kdkj ugha gS\ 4- vk;k oknhuh tM+kockbZ us vius lkFk nhxj O;fDr;ksa dks oknhx.k cukus ls okni= ukdkfcy pyus ds gS\ 5- vk;k izfroknhx.k fo'ks"k gtkZ ikus ds vf/kdkjh gS rks fdl dnj\ 6- vk;k feJhyky iks[kjuk dks jgu'kqnk nqdku ds laca/k esa gd'kQk u ekuk tkus dh voLFkk esa ml nqdku dh dher 20]000@& :i;s ;k tks Hkh dher fl) gks mls de djds cdk;k dher fnyokdj nqdku ds vykok cdk;k tk;nkn ds laca/k esa gd'kQk dk vf/kdkj gS\ 7- vk;k LVkEi ij jkt dksVZ Qhl ,oa lwV~l oSY;w'ku dh /kkjk 14 dh vuqikyuk ls izfrokni= ds iSjk ua0 6 ds vuqlkj nkok [kkfjt fd;s tkus ;ksX; gS\ 8- vk;k izfrokni= ds iSjk ua0 20 ds vuqlkj izfroknhx.k ds i{k esa mUgsa cgSfl;r Lokeh oknhx.k us ,d rgjhj fu"ikfnr dhA vr% mudk gd'kQk dk vf/kdkj oSo ( dk vf/kR;tu ) gks x;k\ 9- nknjh \ " 10. Issue No.7 aforesaid was, however, decided by the learned Trial Court in favour of the plaintiffs on 27.07.1977. In evidence, the plaintiffs examined 7 witnesses including the plaintiff Gopal Lal as PW-1 whereas the defendants examined 11 witnesses including the defendant No.1 Roshan Lal as DW-1; and the parties also produced the necessary documentary evidence including that of the relevant sale deeds, notice, site plan, and the decisions of the Civil Courts. 11. After evidence of the parties and while finally hearing the matter, the learned District Judge dealing with the suit inspected the suit property on 21.07.1983 and prepared a detailed inspection note. The learned District Judge, thereafter, proceeded to consider the core aspects of the matter as involved in issues Nos.1 and 3 regarding the claim of pre-emption as made by the plaintiffs and denial thereof by the defendants. 12. The learned District Judge, thereafter, proceeded to consider the core aspects of the matter as involved in issues Nos.1 and 3 regarding the claim of pre-emption as made by the plaintiffs and denial thereof by the defendants. 12. The learned District Judge held in favour of the plaintiffs that the wall between two shops was common but then, held that so far the pole was concerned, the plaintiffs had failed to establish their exclusive ownership thereof. The learned District Judge also found that so far the discharge of water was concerned, there had been a settlement between the parties whereby the water was being discharged through an outlet directly towards the road and such a ground was not available to the plaintiffs that their water was being discharged on the disputed property. The learned District Judge also held that there was no proof to the effect that the staircase of the defendants had been constructed on the plaintiffs' property; and also disbelieved the case of the plaintiffs that the chowk as referred was their property. The learned District Judge, of course, observed that a few of the vents of the plaintiffs' property were opening towards the defendants' property. 13. After such essential findings on facts, the learned District Judge considered the claim of pre-emption, and in the first place, held that all the three storeys of the property in question were that of a shop and per Section 5 (1) (a) of the Act, right of pre-emption could not be claimed. The learned District Judge said,- " ---------vkSj blfy;s ;s rhuksa gh eaftysa nqdku dh rkjhQ esa vkrh gS vr% nh jktLFkku gd'kQk vf/kfu;e dh /kkjk 5 ( 1 ) ( , ) ds vuqlkj bl rjg dh nqdku ds laca/k esa dksbZ gd'kQk ykxw ugha fd;k tk ldrk pkgs bu nksuksa nqdkuksa ds chp dh nhokj 'kjkdrh gks pkgs mlesa VkUMs vkSj rkds j[kh gqbZ gks vkSj vkSj pkgs bu ij esfM;ksa ij tkus dh uky esa izfroknhx.k dh rjQ [kqyrs gqos mtkynku j[ks gqos gks fQj Hkh dkuwuu bl fooknxzLr nqdku dh rhuksa esfM+;ka flykbZ ds /ka/ks ds gh dke esa yh tkrh gSA vr% ,slh fLFkfr esa bl nqdku ds laca/k esa dksbZ gd'kQk Dyse ugha fd;k tk ldrkA " 14. In regard to the claim of pre-emption on the room on the backside and medi thereupon, the learned District Judge found that the said part of the property was neither having any common wall nor any of the plaintiffs' vents opened therein; and pre-emption had been claimed only on the basis of jointness of the chowk and discharge of water on the chowk. The learned District Judge referred to the previous findings that the chowk was not common and the plaintiffs were not having any right thereto; and further noticed that the defendants had purchased another property, adjoining the said room and medi, from Modi Lal on 03.09.1974 under the sale deed Ex.A/1. The learned District Judge referred to the admitted position that the plaintiffs had not claimed any preemption in relation to such other property purchased by the defendants from Modi Lal and held that in the given fact situation, the defendants were, rather, having a better right of pre-emption with the wall of the disputed property being joint with such property purchased from Modi Lal and there being a common chowk too. 15. Thus, put in a nutshell, the learned District Judge did not find sustainable the claim of pre-emption as made by the plaintiffs, whether in law or on facts; and, therefore, decided issues Nos.1 and 3 against the plaintiffs and in favour of the defendants. 16. The learned District Judge further decided issue No.2 against the plaintiffs with reference to the oral and documentary evidence on record and after finding that the plaintiffs have failed to discharge the burden of proving the fact that the property in question was of the value of Rs.25,000/- only. The learned District Judge, of course, decided issue No.4 against the defendants and found the suit not suffering from misjoinder of parties. 17. In issue No.6, though the learned District Judge observed that he would take the valuation of the ground floor shop at Rs.14,000/- but decided the issue against the plaintiffs for no right of pre-emption being available. The learned District Judge further decided issue No.8 against the defendants for want of reliable evidence and so also issue No.5 against the defendants declining their claim of compensatory costs. 18. The learned District Judge further decided issue No.8 against the defendants for want of reliable evidence and so also issue No.5 against the defendants declining their claim of compensatory costs. 18. In view of the findings on issues Nos.1, 2, 3, and 6, the learned Trial Court dismissed the suit for pre-emption as filed by the plaintiffs with costs by the impugned judgment and decree dated 23.07.1983. 19. Assailing the judgment and decree aforesaid, the plaintiffs have preferred this appeal, inter alia, on the grounds that the learned Trial Court has been in error in declining the claim of pre-emption despite the finding that wall between the shop of the plaintiffs and the property in dispute was common. It has been urged that merely for some allegations of the defendants that the upper medies were used for commercial purposes, the character of the property in question could not have been considered as that of a 'shop' so as to deny the right of pre-emption to the plaintiffs-appellants. It is also urged that apart from establishing that the wall between the suit property and their property was common, the plaintiffs had also been able to prove that ventilators in their staircase were opening towards the staircase of the property in dispute; and hence, the claim of pre-emption ought to have been decreed. It is also submitted that even if the ground floor of the property in question was that of a shop, the claim of pre-emption in relation to the upper storeys cannot be denied particularly when there had been a common wall and the ventilators of the plaintiffs are opening towards the staircase of the defendants. It is further submitted that the learned Trial Court has not been right in holding that the plaintiffs have no share in the chowk in question; and that the findings on the rights regarding chowk and pole are not correct. It is also contended that the plaintiffs are admittedly the owners of the premises situated on the pole and the presumption is that the pole belongs to them notwithstanding the fact that the persons living inside the pole were having the right of passage through the same. It is also contended that the plaintiffs are admittedly the owners of the premises situated on the pole and the presumption is that the pole belongs to them notwithstanding the fact that the persons living inside the pole were having the right of passage through the same. It is also submitted that the learned Trial Court had been in error in holding that the plaintiffs did not acquire any right in the property situated at the backside merely because of purchase of the other property by the defendants. 20. Having given a thoughtful consideration to the submissions as made on behalf of the plaintiffs and having examined the record, this Court is clearly of opinion that the suit as filed by the plaintiffs, being fundamentally baseless, has rightly been dismissed by the learned Trial Court; and this appeal remains bereft of substance. 21. This Court is unable to find any error of law or facts in the decision on issues Nos.1 and 3 by the learned Trial Court. It has precisely come on record that the property purchased by the defendants over whom the right of pre-emption is sought to be claimed had been a three storeyed one; and business was being carried on in all the three storeys. It has rather not been in dispute on behalf of the plaintiffs that the defendants were definitely using the ground floor as a shop but only this much was suggested that the two upper floors were being used for residential purposes. The statements of the witnesses as produced by the plaintiffs are rather of uncertain nature in relation to the use of the upper two storeys and, on the other hand, it is noticed that upon inspection, the learned District Judge himself found all the three storeys being used for tailoring business. The plaintiffs' witness PW-3 Banshi Lal would state that the upper storey was sometimes used for residential purposes and sometimes for tailoring work too. 22. The plaintiffs' witness PW-3 Banshi Lal would state that the upper storey was sometimes used for residential purposes and sometimes for tailoring work too. 22. In the site inspection note, the learned District Judge has comprehensively recorded that all the three storeys were being used for tailoring business with seven sewing machines and counter being there at the ground floor and the business being carried on in the name of Raj Tailors; and other two storeys being also used for such work with six sewing machines on the second storey and with workmen being on the job of stitching work on the third storey too. 23. In the totality of the material available on record and the surrounding circumstances, this Court is satisfied that the learned District Judge has rightly concluded that the property in dispute is essentially a shop; and such a finding calls for no interference. 24. Once the finding is affirmed that the property in question is essentially a shop, may be of more than one storeys, the claim of pre-emption as put forward by the plaintiffs is required to be declined. 25. Section 5 (1) (a) of the Act makes it absolutely clear that the right of pre-emption would not accrue upon transfer of a shop. This Court in the case of Dharam Pal v. Smt. Kaushalya Devi: AIR 1990 Rajasthan 135 has held unavailable the claim of pre-emption in relation to the property situated in grain Mandi whose front portion was being used for buying and selling of the goods and the attached back portion was being used for storage of the goods meant to be sold. After observing that attached portion was also a shop, this Court said,- "...In the present case the back portion forms part and is very much attached to the front portion. When in the front portion actual buying and selling of goods is made in the grain Mandi and in the attached back portion goods are stored, the building is a commercial building and the goods stored therein is sold at that very place." This Court further explained and held,- ".......It is true that shop does not mean a godown but when some apartments are attached to and from part and parcel of the shop in a grain Mandi storing the goods meant to be purchased and sold, it cannot be said that the building is godown. In my opinion, the courts below have rightly held that the part of western portion of property No.37 sold by defendant No.2 in favour of the defendant No.1 was a shop. The Rajasthan Pre-emption Act does not apply to shop premises. The plaintiff's case for the preemption was rightly dismissed for the shop as well." 26. In view of the clear position of law under the Rajasthan Pre-emption Act, 1966 that right of pre-emption is not available in respect of a shop; and in view of the finding in the present case that the property in dispute, particularly the first and major part thereof being that of a shop, there does not appear any right available in the plaintiffs; and this appeal is required to be dismissed on this count alone. 27. It may, however, be pointed out further that the principal ground of the plaintiffs' claim of pre-emption had been of existence of common wall between their property and the suit property and it is no doubt true that the learned District Judge did find the case of the common wall having been established; and such a finding in relation to the common wall has been returned with reference to the evidence adduced by the plaintiffs and so also the site inspection as carried out by the learned District Judge himself. However, even while taking such finding on existence of common wall as correct, in view of the law laid down by the Division Bench of this Court, declaring the ultra vires the statutory provisions giving a right of pre-emption on the basis of vicinage and common wall, the very bottom of claim of pre-emption as made by the plaintiffs is knocked out. The Hon'ble Division Bench of this Court in the case of Nenmal and others v. Kanmal and others: 1987 (2) WLN 805 has declared invalid clause (iii) of sub-section (1) of Section 6 of the Act giving a right of pre-emption to the owners of the properties servient or dominant to the property transferred. The Hon'ble Division Bench of this Court in the case of Nenmal and others v. Kanmal and others: 1987 (2) WLN 805 has declared invalid clause (iii) of sub-section (1) of Section 6 of the Act giving a right of pre-emption to the owners of the properties servient or dominant to the property transferred. Then, in the case of LRs of Smt. Sire Kanwar Maloo v. Shri Daudas Mantri: 2007 (3) DNJ (Raj.) 1661 , another Division Bench of this Court specifically considered the referred question as to whether co-owners of a wall situated adjacent to immoveable properties are not the cosharers within the meaning of Section 2(1) of the Act so as to give the right to the co-owner of the party wall to pre-empt the transfer of other immoveable property under Section 6 (1) of the Act; and the Hon'ble Division Bench approved the ratio in Dharam Pal's case (supra) wherein the learned Single Judge of this Court had said,- "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 preemption is simply on the basis of his being a neighbour. The mere existence of a common boundary wall or a party wall in between two bungalows does not make him a co-sharer in the property sold or a person with a common stair case or common entrance or any other common rights or amenity. Substantially he is only a neighbour and so far as party wall is concerned, the 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 in appendages." 28. While approving the aforesaid in the case of LRs of Smt. Sire Kanwar (supra), the Hon'ble Division Bench further said,- "39. While approving the aforesaid in the case of LRs of Smt. Sire Kanwar (supra), the Hon'ble Division Bench further said,- "39. If this is also viewed from the point of view of the statutory provision in the Rajasthan Preemption 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 preempt 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." (underlining supplied) 29. It is noticed that in the present case, essentially the claim of pre-emption was made on the basis of the common wall between the two staircases; and existence of such a common wall being not affording a right of pre-emption, the claim as made by the plaintiffs deserves to be rejected. The other basis of such a claim of pre-emption with reference to some vents opening towards the suit property is rather of uncertain nature and of a weak character and, in the given fact situation, there does not appear any justification to consider the right of pre-emption in this case with reference to such vents alone. 30. In relation to the other portion of the suit property said to be that of backside room and medi thereupon, it is noticed that the defendants had purchased another property contiguous to the said portion of the disputed property from Modi Lal on 03.09.1974; and, admittedly, the plaintiffs have not claimed any pre-emption qua the said other property. In this fact situation, the claim of pre-emption in relation to the second portion of the suit property could only have been considered redundant; and has rightly been rejected. In this fact situation, the claim of pre-emption in relation to the second portion of the suit property could only have been considered redundant; and has rightly been rejected. Then, from the evidence on record including the testimony of Sukhaji DW-4, there does not appear any error in the finding of the learned District Judge that the claim of the plaintiffs regarding jointness of the chowk has been totally baseless. 31. It is also noticed that the plaintiffs had not been forthright in their pleadings particularly in relation to the description of the suit property. In paragraph-1 of the plaint, while describing the first part of the property i.e., the three storeyed shop, the plaintiffs stated that on the northern side thereof were situated other rooms of guwadi that had been sold to the defendants by the same sale deed but then, while describing other part of the property i.e., the room and the medi thereupon with chowk in front, the plaintiffs stated its southern neighbourhood being that of their (plaintiffs') property. The defendants objected to such a description and pointed out that on the southern side of the said second part of the suit property was situated their own (defendants') property. The objection of the defendants appears to be justified. In the sale deed in question, the southern neighbourhood of the second part of the property has been stated to be that of the first portion i.e., the three storeyed shop and its staircase. It is difficult to find that the said second part would be having its southern neighbourhood as that of the plaintiffs' property as sought to be suggested in the plaint. 32. In the overall analysis, this Court is satisfied that the claim of the pre-emption as put forward by the plaintiffs being totally baseless and being untenable in law as well as on facts, has rightly been rejected; and the suit has rightly been dismissed. 33. As a result of the aforesaid, this appeal is required to be, and is, hereby dismissed with costs.Appeal Dismissed. *******