HARISH HEGDE Vs. RUKMINI HEGGADATHI

JUDGEMENT

(1.) THE petitioner being aggrieved of the order passed in Ex. Petition No. 356/95 by the Prl. Civil Judge (Jr. Dn. ,) Udupi dated 20. 4. 2001 dismissing the execution petition as not maintainable has come up with this revision.

(2.) THE brief facts of the case are as follows: three plaintiff viz. , (1) Sunanda V. Hegde, (2) Anitha and (3) Vijayalakshmi brought a suit for partition against the other branch of the family in O. S. No. 20/1961 (O. S. No. 71/59 on the file of the Sub Court, Mangalore) numbering 25 defendants. In the said suit, the former Judge of the Supreme Court viz. , Sri K. S. Hegde was appointed as an Arbitrator to resolve the dispute among the family members as they were governed by the law of Aliyasanthana prevailing in the areas of South Canara and other parts. The learned Arbitrator Sri K. S. Hegde passed an award on 5. 1. 1982 allotting A schedule properties to the plaintiffs, B schedule properties to the L. Rs of the first defendant Sri B. Hirianna Hegde, C schedule properties to the L. Rs of second defendant Sri B. Seetharama Hegde, D schedule properties to the third defendant Sri B. Karunakara Hegde and E schedule properties to the defendants 4 to 8 who are the litigants in the present Execution proceedings. That the defendants 4 to 8 constitute one family. Defendant No. 4, Rukmini Heggadathi is the mother of the petitioner Harish Hegde (defendant No. 7), whereas defendant No. 5, B. Balakrishna Hegde is the son, defendant No. 6, Maya and defendant No. 8, Rupa are the daughters. The learned Arbitrator while dealing with the punja lands of Herga village allotted an extent of 1 acre 87 cents in Sy. No. 177/3d and another extent of 13 cents in Sy. No. 177/3a in all measuring 2 acres whereas defendant No. 6 Maya was also allotted with punja lands in Sy. No. 260/8d measuring 9 cents, in Sy. No. 177/3f measuring 1 cent, in all measuring 2 acres. The Arbitrator allotted E schedule properties as well as punja lands as stated above in favour of defendants 4 to 8. In the Final Decree Proceedings, as there was a dispute regarding the sharing of the properties among the branch of Rukminis family in the property allotted to their branch that is, E schedule property and punja lands of Herga Village, the branch of Rukmini Heggadathi that is, consisting of the present petitioner Sri Harish Hegde, defendant No. 5, B. Balakrishna Hegde, defendant No. 6, Maya, defendant No. 8, Rupa, filed a joint memo for appointment of an Arbitrator for division of E schedule and other properties allotted to their branch. Sri S. R. Hegde, Advocate was appointed as the Arbitrator and he divided the whole of the E schedule property as well as the punja lands allotted to this branch. It is after the division of the properties, this petitioner Sri Harish Hegde sought for execution of the award of Sri K. S. Hegde in Execution Petition No. 356/95 in so far as it relates to 2 acres of punja land situated in Herga village, Udupi Taluk. The respondents entered appearance and filed their detailed objections statement. The learned Civil Judge (Jr. Dn. ,), considering the award passed by Sri S. R. Hegde in which the division of the properties have taken place held, the decree cannot be executed. It is this order which is questioned in the present revision.

(3.) LEARNED Counsel for the petitioner Sri Sanath Kumar Shetty contended that the Arbitrator Sri S. R. Hegde was appointed for division of only E schedule properties and not the punja lands of Herga village situated in Sy. No. 177/3d measuring 1 acre 87 cents, and Sy. No. 177/3a measuring 13 cents. He has further contended that it is in respect of these 2 times of lands, he sought for delivery in the execution proceedings. He also contended that the Arbitrator Sri S. R. Hegde was not authorised to interfere with the award of Sri K. S. Hegde in so far as punja lands allotted in favour of this petitioner, He has further contended that the second Arbitrator Sri S. R. Hegde was appointed to make division in respect of only E schedule agricultural properties and not in respect of punja lands. Secondly, contended that when once the decree has attained finality, the Arbitrator does not get jurisdiction to deal with the same and that it cannot be reopened. Thirdly, contended that the punja land is not the subject matter of arbitrator has no authority beyond the scope of reference. In support of his contentions, he has relied on the decision in the case of Prince and Co. , vs. Governor General in Council, reported in AIR 1955 Punjab 240 and contended that the Arbitrator has exceed his limits and gone beyond the exceeded his limits and gone beyond the point of reference. Therefore, contended that as a matter of right, the petitioner is entitled to execute the first award in respect of 2 acres of punja lands for delivery of possession in Execution Petition No. 356/95. Therefore, prayed to set aside the impugned order by allowing the Revision permitted to Proceed with the Execution Petition.