Navin Chandra Sharma, J.
1. This is a second appeal by the plaintiff Dharmpal against the decree of the Additional District Judge. Ganganagar, dated October 18. 1977 upholding the decree of Civil Judge. Ganganagar dated May 29. 1974 dismissing his suit for pre-emption.
2. Facts leading to the filing of this second appeal are that on October 12. 1972 plaintiff Dharampal insituted Civil Original Suit No. 24 of 1972 against the defendant-respondents with the averments that the plaintiff owned and possessed an 'ahata' (compound) No. 35 in Block 'B' measuring 72 1/2 x 50' in Gajsinghpur Mandi. Tehsil Padampur District Ganganagar. Adjoining the 'ahata' of the plaintiff there was another 'ahata' No. 36 in 'B' Block which belonged to Veerbhan. Veerbhan bequeathed 'ahata' No. 36 to Smt. Satyawati wife of Gopichand who is defendant No. 2 in the suit. According to the plaintiff there is a joint wall between 'ahata' No. 35 of the plaintiff and 'ahata' No. 36 of the defendant No. 2. This joint wall between the two 'ahatas' was commonly used and enjoyned by the plaintiff and deceased Veerbhan and thus both of them were co-owners of this joint wall. This joint wall was also alleged to be a common amenity between them and. therefore, the plaintiff had preferential right of purchase of 'ahata' No. 36 in the event of its being sold by defendant No. 2. Apart from that, the plaintiff, his father and brother and Gopichand son of Veerbhan and jointly purchased a shop No. 37 situated in Mandi Gajsinghpur and the same measured 100' x 22' and both sides had equal share in the same. This shop opened towards grain Mandi. In the front portion of the shop roomswere constructed for the purpose of trading while in the back portion of it residential rooms were constructed. These constructions were made 25 years before the filing of the suit. As a result of the partition effected on March 16. 1961, the eastern portion of this shop and the residential portion behind it came to the share of the plaintiff. The western Portion remained with Gopichand and after his death it came to Smt. Satyawati wife of Gopichand. The stair-cases in both the shop portions and the residential portions remained common between the plaintiff and Gopichand and the intervening wall was also joint between them. The defendant No. 2 without knowledge of and notice to the plaintiff sold half portion of 'ahata' No. 36 measuring 50' x 26' and the western portion of the shop and residential house behind it to Smt. Kaushalya Devi defendant No. I on October 12. 1971 for an amount of Rs. 15,000 - and got a sale deed registered in that respect. The plaintiff alleged that he has a preferential right of pre-emption with respect to the half portion of the 'ahata' and the residential portion behind the shop on western side. He therefore, claimed a decree for pre-emption in respect of these properties in this suit.
3. The suit was contested by Vendee Smt. Kaushalya Devi defendant No. 1. She admitted that defendant No. 2 was the previous owner of 'ahata' No. 36, She. however, denied the ownership of the plaintiff in relation to 'ahata' No. 35. She also denied the joininess of the wall between ahatas Nos. 35 and 36 and also their joint use. It was also denied that shop No. 37 was jointly constructed by the plaintiff and his father and Gopichand. It was also denied that the stair cases of the shops were common. The ownership of the plaintiff in relation to the eastern portion of the shop was also denied. It was further denied that the back portions of the shops are residential in character. On the other hand, they are being used as godown of the shops. The preferential right of preemption claimed by the plaintiff was disputed. It was admitted that defendant No. 2 had sold the western portion of the 'ahata' No. 36 and that of the shop No. 37 to the defendant No. 1 for a consideration ofRs. 15000 on October 12,1971. It was stated that sale price of ahata No. 36 was settled at Rs. 9000 - and that of the shop portion at Rs. 6000 - which had been paid by the defendant No. 1 to defendant No. 2.
4. On the pleadings of the parties the Civil Judge. Ganganagar framed 8 issues in the suit. On the basis of the partition deed Ex. 5, against which there was no rebuttal from the side of defendant No, 1, it was held that 'ahata' No. 35 and the eastern portion of shop No, 37 belonged to and was possessed by the plaintiff. With regard to the two 'ahatas' it was held by the Civil Judge that these 'Ahatas' were not purchased by one and the same owner at a time. There was also no evidence that constructions in the 'ahatas' were made at the same time. He held that it was not established that the wall in between 'ahatas' Nos. 35 and 36 was a joint wall of the plaintiff and defendant No. 2, or was a common amenity between them. With regard to the portion of the shop, it was held that the entire shop No. 37 was a shop. The back portion of the shop was used for storing goods which was sold at the shop. Thus it was held that the back portion of the shop sold by the defendant No. 2 to defendant No. 1 was not a residential portion. It was held that the Rajas-than Pre-emption Act does not apply to shops. Under issue No. 4 it was held that defendant No. 2 had not given any notice to the plaintiff before selling the portion of the 'ahata' and the shop and the plaintiff had no knowledge of the same. Under issues Nos, 5 and 6 it was found that the back portion of the shop sold valued at Rs. 4900/- and the 'ahata' sold valued at Rs. 5100/- on October 12. 1971 and, therefore, the court-fees paid was sufficient. The suit was held to be within limitation. On the basis of the findings on issues Nos. 2 and 3 against the plaintiff, his suit for pre-emption was dismissed.
5. Aggrieved by the decree of the Civil Judge dismissing his suit, the plaintiff filed Civil First Appeal No. 41 of 1974 before the District Judge, Ganganagar which was transferred to the Court of the Additional District Judge. The Additional District Judge held that the Civil Judge was correct in holding that the plaintiff had failed to prove thatconstructions in the two 'ahatas' had been raised at one and the same time or on joint land or with joint funds. He held that evidence led was quite insufficient to make out a case either of a joint wall or of common amenity between the two 'ahata' for the benefit of the plaintiff. He, therefore held that the plaintiff had no right of pre-emption in respect of the portion of the 'ahata' sold by the defendant No. 2 in favour of defendant No. 1. With regard to the back portion of the shop, the Additional District Judge referred to condition No. 8 contained in the sale deed of this shop dated March 31. 1934 issued by the Revenue Commissioner and held that from that it was clear that the land had been sold to the purchasers only for the purpose of constructing commercial shops. He also stated that this premises was situated in the midst of grain Mandi in Gajsinghpur and in view of its location, the object for which the plot had been sold and the evidence on record, the Civil Judge was justified in arriving at the finding that the back portion of the premises was in fact a shop and not a residential accommodation. The provisions contained in Rajasthan Pre-emption Act did not apply to a shop. Thus agreeing with the findings of the trial court on issues Nos. 2 and 3, the Additional District Judge dismissed the appeal filed by the plaintiff. The plaintiff has come in second appeal to this Court.
6. It was contended by Mr. Rajendra Mehta appearing for the plaintiff-appellant that the wall between 'ahatas' Nos. 35 and 36 was a joint and common wall between the plaintiff and defendant No. 2 and that the existence of a common wall between the two 'ahatas' was sufficient to entitle the plaintiff a decree for pre-emption in respect of the portion of the 'ahata' sold. In any event it was urged that this wail between the two 'ahatas' was an amenity common to the plaintiffs 'ahatas' and the portion of the 'ahata' sold to defendant No. I. The plaintiff was entitled to the preferential right of the preemption under Section 6(1 )(i) or Section 6(l)(ii) of the Rajasthan Pre-emption Act, 1966 (for short, hereinafter, 'the Act'). As regards the back portion of the shop in question, it was urged that there existed jointwall and common stair-cases of the two contiguous shops. It was argued that condition No. 9 in Ex. 2 was not properly construed by the courts below and as a matter of fact the back portion of the shop in question was a residential portion and not a shop and. therefore, the provisions of the Act applied and the plaintiff was entitled to a decree for pre-emption on the ground furnished by Section 6(1)(ii) of the Act. Mr. H.M. Parekh appearing for the vendee supported the findings of the courts below on issues Nos. 2 and 3.
7. It may be mentioned that while this second appeal was admitted on February 24. 1978 it was mentioned that the question of law which arises was whether the plaintiff had a right of pre-emption in respect of plot No. 36 on the ground that there was common wall existing between plots Nos. 35 and 36. It may also be mentioned that Shivdayal and Veer-bhan were two brothers. Shivdayal had a son Dharilal and Dharilal had two sons, namley, Kewal Krishna P.W.2 and the plaintiff Dharam Pal. Veerbhan had one son named Gopi Krishna or Gopichand. Thus Veerbhan was father-in-law of Smt. Satyawati defendant No. 2 and Gopichand or Gopikrishna was her husband.
8. The learned counsel for the plaintiff-appellant invited my attention to the findings given in a portion of his judgment by the Additional District Judge wherein he has observed that it was no doubt true that a common wall existed in between 'ahata' No. 35 and 'ahata' No. 36 owned and possessed by he plaintiff, but a common wall could not be termed as a joint wall so as to attract the provisions of Section 6 of the Act. The learned counsel urged that the meaningless distinction had been drawn by the Additional District Judge between a common wall and joint wall. It is true that the Additional District Judge had made these observations in para No. 6 of his judgment, but he has also stated that it was not at all proved that the intervening wall had either been built on joint land of the two owners or that the said wall had been raised with joint funds by the owners of the two 'ahatas'. He agreed with the findings of the Civil Judge that the plaintiffhad failed to prove that the constructions in the two 'ahatas' had been raised at one and the same time or on joint land or with joint fuh'ds. Thus there is a'concurrent finding of fact that the wall between 'ahatas' Nos. 35 and 36 was not a joint wall between the plaintiff and the vendor. In any event, for the applicability of Section 6(1)(ii) of the Act it is necessary that the person claiming right or pre-emption should be co-sharer of or partner in the property transferred. Admittedly it was not the case of the plaintiff that he was co-sharer in 'ahata' No. 36 along with Smt. Satyawati or her predecessor in title. Clearly, therefore, the plaintiff was not a co-sharer in the property transferred. The words 'in the property transferred' in Section 6(1 )(i) of the Act are of significance. Right of pre-emption under Section 6(l)(i) is available only to co-sharer or partners in the property transferred. It is not applicable where jointness or common ness is claimed only in a boundary wall between the pre-emptor's property and the vendors' property. Mr. Rajendra Mehta vehemently argued that in any event Section 6(1)(ii) of the Act was applicable which inter alia provides that the right of pre-emption in respect of any immovable property transferred shall accrue to and vest in owner of other immovable property with a stair-case or an entrance or other right or amenity common to such other property and the property transferred. It was urged by him that the common wall was a right or amenity common to plaintiffs 'ahata' No. 35 and Satyawati's 'ahata' No. 36 a portion of which has been transferred to the vendee. In the first instance, it may be mentioned that both the courts below have found that the wall in between the two 'ahatas' was not established to be a joint wall of the plaintiff and the vendor and in the absence of that proof, it cannot be said that there was a right common to the plaintiffs 'ahata' and the property transferred.
9. In Rajendra Singh v. Umraosingh, AIR 1925 Lahore 223, a Division Bench of the Lahore High Court held that co-sharer should signify person owning a share or shares in the whole of the property of whichanother share was the subject of sale. No authority could be cited for the proposition that a person who is a part owner of a small portion of one of the walls of a house, but had no right of any kind in any other part either of the building or of the site is entitled to call himself a co-sharer.
10. As already observed, it has been found by both the courts below that the plaintiff has not been able to establish that the wall in between the two 'ahatas' was on joint land or was constructed by joint funds and consequently it was not established that there was common right between the palintjffs 'ahata'and 'ahata' transferred. The matter may also be examined from the point of view of a party wall. The term 'party-wall' in relation to a wall separating two properties, might mean:--
(i) a wall of which the two adjoining owners were tenants-in-common; or
(ii) a wall divided longitudinally into two portions; one belonging to each adjoining owner, or
(iii) a wall belonging entirely to one adjoining owner, but subject to an easement in the other to have it maintained as a dividing wall; or
(iv) a wall divided longitudinally into two portions each portion being subject to a cross-easements in favour of the owner of the other.
11. In Ganpat Rai v. Saindas, AIR 1931 Lahore 373 his Lordship Shadilal C, J. referred to the leading authority in Watson v. Gray, (1880) 14 Ch D 192 in which Fry J., laid down the rule that if one of the two tenants in any of a wall between two adjoining houses excludes the other from the use of it by placing an obstruction on it, the only remedy of the excluded tenant is to remove the obstructions. Shadilal C.J. proceeded to observe that party-wall belonging to two adjacent owners as tenants-in-common cannot be treated as a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners. Each co-owner is entitled to the use of the whole width of the top of the wall, subject to a similar right of the other and the constructionof a new wall on half of the width by one of them can be restrained by an in junction at the instance of the other. In Baijnath v. Janki Prasad, AIR 1930 Allahabad 318 Young J., held that in the case of a party-wall, each co-owner used the wall owned in common and so long as each co-owner uses it reasonably without interfering with the enjoyment of that wall by the other co-owner, or without doing anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes. In Ghulam Mohyuddin v. Bhagwandas. AIR 1934 Lahore 817 it was held that where one of the owners of a joint party wall raised its height with the consent or acquiscence of the other owner such raised portion is also a party wall. Neither party is at liberty to open a window in the portion so raised, and if any of the party opens window in the raised part of the party wall, his action amounts to a trespass and the other party is entitled to an injunction ordering him to close the window in question. To the same effect are the decisions in Ata Muhammed v. Ahmad Nur. AIR 1925 Lahore 642 and Imam Bhai v. Rahim Bhai, AIR 1925 Bom 373. The same view was taken by this Court in Roopchand v. Punam-chand, AIR 1962 Rajasthan 227. wherein it was held that it is not open to a co-owner of a joint wall to raise its height or otherwise deprive the other co-owner of the house of such wall without the latter's consent whether express or implied. The action of the co-owner in so far as he, by his unilateral conduct, raised the height of the wall is unauthorised this clearly means to deprivation by the co-owner of the other co-owner to make reasonable use of the entire width of the top of the wall as it existed before its height was increased to which he was undoutedly entitled. To the same effect is the decision in Jagan Nath v. Kachhulal, AIR 1971 Rajasthan 112.
12. Wall may not be jointly held in some cases but its two longitudinal moieties may each belong to the adjoining owner or the party-wall may be a wall of single exclusive ownership of one neighbour. The walls of this character call for joint consideration of the rights of individual ownership and theircurtailment by way of easement of support or other easements. Though the rights and obligations appertaining to party-walls do not, form the subjecl-matter of the Indian Easements Act, and broadly speaking hardly ever raise a question pertaining to the law of easements, such rights and obligations are so, analogous to easement rights and obligations and arise so often in association with other questions that it seems convenient and desirable to look upon the law of party-walls as part of the law of easements. The law of quasi-easements, in one of its nature, includes right of support (including lateral support) which passes by implication of a law to the grantee. It is applicable to the case of a party-wall which belongs entirely to one of the adjoining owners, but is subject to an easement of right in the other to have it maintained as a dividing line between the two tenements. The mere fact that the price of the wall was taken into account in adjusting the value of the allotments does not in any way affect the' applicability of the law (See Bholanath Dutta v. Radha Nath Biswas, AIR 1924 Cal 844).
13. It is thus clear that rights and obligations appertaining to party-walls are so analogous to easements rights and obligations that it seems convenient and desirable to look upon the law of party-walls as part of the law of easements because in such cases cross-easements in favour of each other arise.
14. I may refer to a decision in Jagannath v. Radheyshyam, ILR (1960) 10 Rajasthan 75 in which there was a suit for pre-emption. The suit related to a flat belonged to defendants Nos. 2 and 3 in that case. The plaintiff was the owner of another flat on the same floor and in the same block. These two flats constituted a block which had a stair-case leading to the lower floor. The flat belonging to defendants Nos. 2 and 3 in that case was sold to defendant No. 1 along with undivided share in balcony, the stairs leading to the lower floor and remaining portion of the stairs leading to the ground floor, the passage and the pol as well as the latrine, defendant No. 1 was already the owner of a flat adjacent to the flat which was sold and separated by it-by a common wall. There was, however, no opening in this wallso that the only way by which one could enter the flat sold by defendants Nos. 2 and 3 was through joint balcony and the stairs which were owned jointly by defendants Nos. 2 and 3 and the plaintiff. The plaintiff Jagannath filed a suit for pre-emption on the ground that he was co-sharer with defendants Nos. 2 and 3 with regard to the undivided part of the property sold. Defendant No. 1 contested the suit on the ground that he too was a co-sharer and the right of the plaintiff was in no case superior to his own right. This case was of a time when the Rajasthan Pre-emption Act had not been enacted and the matter was governed by custom of pre-emption founded on and co-extensive with Mohammedan law. His Lordship Jagat Narayan J. quoted from Amir Ali's text book on Mohammedan Law 3rd edition, page 602 as follows:--
'A house belonging to two persons is situated in astreet which has no thoroughfare and one of the partners sells his share to a stranger, the right of pre-emption belongs first to the partner in a party-wall, then to all the people in the street equally, and then to the person whose house is behind that which is sold.'
His Lordship stated that according to the above passage a partner in a party wall is a pre-emptor falling in Class I. So is a partner in the house. Yet a partner in the house is to be preferred over a partner in party-wall. It was emphasized that that was as it should be. For a partner in a party-wall, although he is a co-sharer is almost in the same position as a neighbour. For no part of the premises of his premises overlooks the premises sold. Nor it is he who shared any part of the house used by the respondents of the premises sold. Consequently it was held that the plaintiff who was a partner in the house, had a preferential right over defendant No. 1 who was a partner in the mansion and a partner in the party-wall. This decision goes to a great length in deciding the controversy in this suit. The plaintiff was neither a co-sharer in the 'ahata'in question nor a partner in the mansion. At best he was a partner in the party-wall and his position would almost be in the same position as a neighbour. Toillustrate, 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 preemption, his claim for pre-emption is simply on the basis of his being a neighbour. The mere existence of a common boundary wall or party wall in between two bungalows does not make him a co-sharer or partner in the property sold or a person with a common stair case or common entrance or any other common right 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 participants in appendages.
15. In Bhau Ram v. Baijnath, AIR 1962 SC 1476 the Supreme Court has laid down that the law or custom of pre-emption based on vicinage which was in force prior to the Constitution can have no force now as such law or custom must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed by Article 19(1) of the Constitution. Their Lorships upheld the right of pre-emption of a co-sharer. Thus the Supreme Court has already held that a right of pre-emption based on vicinage is unconstitutional. But it is valid if it is based on co-ownership or a right akin to that of a co-sharer whose share can have a right or amenity common to the two properties. Similarly in Santram v. Labhsingh, AIR 1965 SC 314, another Constitution Bench of the Supreme Court followed the ' decision in Bhauram's case and struck down as void a right of pre-emption based on vicinage claimed under a custom. The decision in Bhauram's case was re-affirmed by a recent Constitution Bench decision of the Supreme Court in Atam Prakash v. State of Haryana, AIR 1986 SC 859.
16. It is true that right to property conferred by Articles 19(l)(f) and 31 was deleted'from the Constitution by the (44th amendment) Act, 1978 with effect from June 20, 1979. However, that does not effect the invalidity of the statutory right of pre-emption on ground of vicinage. In this connection, it may be mentioned that the doctrine of eclipse apply only to a pre-constitution law which are governed by Article 13(1) and does not apply to post-constitution laws which are governed by Article 13(2). Unlike a pre-constitution law covered by Article 13(1) which was valid when made, the law made in constravention of the prohibition contained in Article 13 is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. The inherent difference arises from the fact that one is dealing with pre-constitution laws and the other is dealing with post-constitution laws with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being stillborn there will be no scope for the application of the doctrine of eclipse (See Mahendra Lal Jaini v. State of U. P., AIR 1963 SC 1019). Consequently, therefore if the expression 'other right.... common to such other property and the property transferred 'includes in it a common party wall which gives right only in the nature of cross-easements, such right of pre-emption is simply based on neighbourhood and vicinage which right was struck down by the Supreme Court as vio-lative of Article 19 of the Constitution. The Rajasthan Pre-emption Act, 1966 is a post-constitution law and, therefore, this part of the right in the Act was in contravention of Article 19 and was a still-born law and was accordingly dead from the very beginning and there can be no question of its revival under the doctrine of eclipse.
17. I accordingly hold that firstly, there is concurrent finding of fact of both the courts below that the plaintiff has failed to establish that the wall in question was a common wall. Secondly, even if it was so, the right arising thereupon are only in the nature of ease-mentary rights (i.e. cross-easementary rights) and the position of the plaintiff is no betterthan a neighbour and a right of pre-emption based on such neighbourhood or vicinage was void as held by the Supreme Court and does not revive by the omission of Article 19 and Article 13 by the Forty-fourth Constitution Amendment for the reason that the doctrine of eclipse is not applicable to it. The plaintiffs case in relation to 'ahata' consequently fails.
18. As regards the back portion of the shop, both the courts below have found that property sold is a shop and not a residential portion. The land of the shop was purchased from the former Bikaner State by sale deed Ex. 2 dated March 31, 1934. Its Clause No. 8 clearly mentions that the land had been sold for construction of a shop and it was mentioned that it would not be used for any other purpose. Clause 9 of Ex. 2 also reiterates that the shop which may be constructed on the land will only be used for shop purpose and the back portion can reasonably be used for storing goods or for reasonable living. The expression 'reasonable living' has to be construed in the light of the main use. The property in question is situated in grain Mandi Gajsinghpur where grain business is carried on. Admittedly the front portion of the property is used as a shop and the back portion for storage of goods meant to be sold. The Civil Judge had also inspected site on May 27, 1974 and he found that the back portion of the property in question was not being used for residential purposes and there were no signs of such user. The learned Counsel for the plaintiff-appellant contended that even if the back portion of the shop property in question is used for storage of goods, it will not be a shop because shop cannot include godown. Reliance was also placed on the decision is Wadhavamal v. Lachmandas, AIR 1924 Lahore 213(1), wherein it was held that a shop denotes a building or apartment which is primarily used for buying and selling goods and that a building used for storage of goods is not shop. Facts in Wadhawamal's case go to show that from the evidence produced, it was clear that the building had been rented out by the firm of Ramlal Ishwardas who stored their sleep-ers in it and that formerly it was used for storing the grain and no goods were sold in the building. It is clear from this decision that the building in that case was only used for storage of commodities and not for the purpose of buying and selling goods. 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 jand 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. In Wadhwamal's case itself appellant relied upon a decision in Attarsingh's case in which warehouses attached to shops were regarded as being in the nature of shop property. The decision in Attarsingh's case was distinguished on the ground that the building in Wadhwamal's case was not attached to a shop. In Sandhi v. Kheruddin, AIR 1927 Lahore 328 the building was used for residential purposes and the premises could not be said to be a shop simply on the ground that a carpenter worked in the place whereheresided. 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 and the apartments are used and are usable for 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 defendant No. 1 was a shop. The Rajasthan Pre-emption Act does not apply to shop premises. The plaintiffs case for the preemption was rightly dismissed for the shop as well.
19. This appeal has consequently no force in it and it is hereby dismissed with costs to respondent No. 1.