R.N. Aggarwal, J.
(1) This is a suit for possession by picemption. The pre-cnipti^n is claimed on ground Fifthly of action 16 of the Punjab Pre-Emption Act. The relevant part of section 16 read's asunder : 16 Of The right of pre-emption in respect of urban immovable property shall vest : Fifthly, where the sale is of a servient property in the owners of the dominant property, and vice versa ;'
(2) The facts proved and which are not in dispute are that properties bearing Nos. 2777 and 2778 situated in Chirakhana : Street, Delhi were owned by Shri Shiv Sahai Mal, the common ancestor of the plaintiffs and defendant No. 2. Shri Maha Narain had two wives; from the first wife he had two sons, namely, Suraj Narain and Radhka Narain and from the second wife 5 sons, namely, Prem Narain, Bishan Narain, Govind Narain, Kirpa Narain and Purshottairi Narain. In 1951 there was a partition between the sons of Maha Narain and property No. 2777 fell to the share of the sons from the second wife ' and property No. 2778 fell to the share of Radhka Narain and Suraj Narain (sons from the first wife). Plaintiffs Nos. 2 to 4 are the sons of Suraj Narain and plaintiffs Nos. 5 to 8 are the widow and children of Brij Narain son of Suraj Nar-ain. It appears that subsequent to the above partition Govind Narain acquired the interest of the other brothers in property No. 2777.
(3) On 15th March 1978 vide registered sale deed, copy of which is Ex. P.I, Govind Narain sold property No. 2777 to Smt. Chandra Devi wife of Madan iLal fori a price of G Rs. 70,000]-.
(4) On 20th May 1978 the plaintiffs gave a notice to Chandra Devi alleging that they have a right to pre-empt the sale and called upon her to transfer the property for the sale consideration paid by her.
(5) The defendant No. 1 did not accept the claim of the plaintiffs and that has led to the present suit.
(6) The suit property is situated in Chirakhana within the tour-walls of the old Delhi and it is predominantly a residential area. A small portion measuring 8.2 feet/into 5.9 feet out of the house in dispute was converted into a shop in about inc year 1942 and since then is in the tenancy of Nathi Ram Halwai. The rest of the house is used for residence since the time it was constructed. The vendors were residing in the house until about February-March 1978 and since after the sale the vendee is in possession. The two properties, that is, houses bearing Nos. 2777 and 2778 are separated by a wall shown Ab in the plan Ex. P. 5.
(7) The plaintiffs have alleged the right to pre-empt the sale on the grounds, inter alia, (1) that the beams and rafters of house No. 2778 rest on the wall Ab which is a common wall; (2) that there are doors on the ground floor and in the first floor in the wall Ab ; and (3) that there is a ventilator and an almirah in the common wall on the ground floor and that the above casementary rights gave the plaintiffs the right to pre-empt the sale under clause Fifthly of section 16 of the Punjab Premption Act. The plaintiffs alleged that acustom of pre-emption existed since time immemorial in the area of Chirakhana which is located within the walled city of Delhi.
(8) Defendant No. 1 in her written statement denied the right of the plaintiffs to pre-empt the sale. Defendant No. 1 pleaded that the wall Ab is jointly owned by the owners of the two properties and that the user of the joint wall by the parties does not confer any right of easement. As regards the ventilator and the almirah, defendant No. I replied that she is not concerned as to how the plaintiffs use the wall on their side of the house.
(9) On the pleadings of the parties .the following issues were framed : '1. Whether the suit is barred by the provisions of order 2 rule 2 of the Code of Civil Procedure as stated in para 1 of the preliminary objections 2. Whether the plaintiff has a right to pre-empt the sale 3. Whether any improvements have been made by the defendant-vendee on the suit property after the purchase of the property, if so, whether he is entitled to claim, any amount spent by him by way of improvements If so to what amount is he entitled to (Onus on the defendant). 4. Whether the Punjab Pre-Emption Act does not apply to the State of Delhi after it was repeated by repeal- ing Act of 1973 5. Whether the Punjab Pre-Emption Act as applicable to Delhi is un-Constitutional for the reasons in the written statement 6. Relief.'
(10) Issue No. 2 is the crucial issue. The history of the wall Ab is known. As already stated 'the two properties/houses bearing municipal Nos. 2777 (old No. 1083) and 2778 (old No. 1084) were owned absolutely by Shiv Sahai Mal. The property 2777 was built about a hundred years back and the second property 50 to 60 years back. The sons of Shiv Sahai Mal along with their families resided in the two houses, Jagan Nath died without any male issue. Maha Narain with his sons and grandsons resided in the two properties. In 1951, there was partition of the two properties between the sons of Maha Narain. Property No. 2777 fell to the share of the sons of Maha Narain from the second wife and property No. 2778 to the sons of Maha Narain from the first wife. The boundaries of the two properties are given in the Schedules A and B attached to the partition deed. In March 1978, Govind Narain sold the property No. 2777 to defendant No. 1. The plan Ex. P. 5 shows that the wall Ab divides the two properties i.e. 2777 and 2778.
(11) From the history given above, it is clear that originally Shiv Sahai Mal was the absolute owner of the two properties. After his death, his two sons Maha Narain and Jagan Nath became the owners. Jagan Nath died without any male issue. In 1951 the property was divided between the sons of Maha Narain. The partition deed of which copy Ex. P-7 is on the Irecord is silent in regard to the wall AB. It is dear that lie wall Ab continued to be a joint wall of the owners of the two properties. In 1978, Govind Narain sold the property No. 2777 to defendant No. 1 and after the purchase of the property, she C ibecame a joint owner along with the plaintiffs of the wall AB. 'The above also appears to be the case of the parties.
(12) The plaintiffs in paras Sand 9 of the plaint alleged that the wall Ab is a common wall and that the owners of houses INos. 2777 and 2778 owned the wall Ab half and half since the time of the partition. The defendant No. I in her written Statement claimed that the wall Ab is the joint wall of the parties. DW-3, Madan Lal Jain, husband of defendant No. I in cross-examination to a question :
'Iput it to you that wall Ab is not your exclusive property', replied : 'It is correct. The wall belongs jointly to the owners of houses Nos. 2777 and 2778'.
(13) From the pleadings and other material discussed above. it is established that the wall Ab is a party-wall or joint wall and it does not belong exclusively to any party.
(14) It is not disputed that the rafters and beams of house No. 2778 rest on the wall AB.
(15) The term 'party-wall' may be used in any one of the four following senses : (1) first, it may be used to denote the wall which separates the properties of two adjoining owners and is owned by both the proprietors in common ownership: '(2) second, the term may be understood to signify a wall which is longitudinally divided into two strips, one belonging to each adjoining owner, (3) third, it may mean a wall which belongs 'entirely to one of the adjoining owners but is subject to an easement or right of the other to have it maintained as a dividing wall between the two tenements; (4) last. it may be used for a wall divided longitudinaly in two portions, each 'Dortion being subject to a cross-easement in favor of the owner of the other portion.
(16) I have earlier found that the wall Ab is a joint wall of the parties.
(17) A party-wall held in co-ownership is to be treated as a structure which is to be utilised for the common benefit and convenience of both the owners of the tenements which it separates; each one of them is entitled to the full user of the wall the only restriction being that the user of the wall should not interfere with the enjoyment of the wall by the other.
(18) In Durga Parshad v. Jheetar Mal, , Mr. Justice J. L. Kapur held :
'THEtwo adjoining owners of a party wall arc tenantsin-common, and the wall cannot be treated as a wall divisible longitudinally intoi two strips, 'one belonging to one neighbour and the other to the other. If one of them excludes the other from the use of the wall by building upon it, the excluded owner will be entitled to a mandatory injunction for the removal of the obstruction.'
Also see : Bothra Brothers Ltd. v. Sm. Pramila Bala Dutt Chowdhury and others, : AIR1959Cal309 -, Paduman Das v. Shriniati Parbati. A.T.R. 1935 Allahabad (-49(3) and- Girdharidas Radhakishendas v. Tirathdas Gokaldas, Air 1930 Sind 34(4).
(19) Applying the rule contained in the cited authorities it would follow that the owners of both the tenements that is 2777 and 2778 have the right to the use of the full wall Ab, the only prohibition being that the user of the wall should not interfere with the enjoyment of the wall by the other.
(20) Question arises, whether by the placing of the rafters and beams on the wall Ab the plaintiffs acquired any easementary rights within the meaning of clause Fifthly of section 16 of the Punjab Pre-Emption Act.
(21) Section 4 of the law of Easement and licenses in India defines the dominant and servient heritages and owners. The relevant part of section 4 reads as under :
'4.An easement is a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.'
(22) In my view the question posed must be answered in the negative. It is essential for the existence of an easement right that the burden of the enjoyment of the right must fall upon ;i tenement which is owned by a person different from the one who owns the dominant heritage. In the case in hand the wall Ab belongs to the owners of the tenement of 2778 as much as to the owner of 2777; thereforee, neither of the two tenements is servient or dominant to the other.
(23) Mr. Andley, learned counsel for the plaintiffs in support of the plaintiffs' case, relied upon Chela Ram v. Mehr Chand and another Air 1921 Lah 181(5) wherein a Division Bench of that Court held :
'WHEREthe rafters and beams of a shop and adjoining house rest upon a party-wait, the owner of the shop can pre-empt a sale of the latter.'
(24) I have found the wall Ab to be a joint wall and, thereforee, the cited authority is distinguishable on facts. Even otherwise, with all respects, for the reasons recorded earlier I am unable to follow the cited authority.
(25) The other-grounds on which pre-emption is claimed are the existence of the doors, ventilator and almirah in the wall AB. It is not disputed that there are doors on the ground floor and the first floor in the wall AB. As already noticed, the two properties originally belonged to the same person and the doors must have been kept in the wall Ab for connecting the two properties. After the sale of the property to the defendant No. 1 the doors have been closed. I am unable to see how the existence of the doors in the wall Ab gave any right of easement.
(26) As regards the window, there is no claim of easement of light and air and, thereforee, the existence of the window also furnishes no right of pre-emption to the plaintiffs. Tht plainitiffs have built an almirah on their side of the wall AB. A coowner has the right to a reasonable use of the pint wall and the above would amount to a reasonable use of the joint wall.
(27) For the reasons stated I find issue No. 2 against the plaintiffs.
(28) The counsel for the parties did not address arguments on the other issues. In the result issues Nos. 1, 2 and 5 are foond against the defendants. Issue No. 4 was tried as a prelipanary issue and it was decided against the defendant on 6th February 1979.
(29) In view of the finding on issue No. 2, the suit is dismised. However, the parties are left to bear their own costs.