R KRISHNASAMI NAIDU Vs. PAVAYEE

JUDGEMENT

(1.) THE plaintiff, who succeeded before the trial Court, but lost before the lower appellate Court, is the appellant. Admittedly, the plaintiff is the owner of a house property comprised within the limits of the portion marked as ABDE in the plaint plan. It is also in evidence that the construction faces east and the roof also slopes towards east. In the wall running between B and D, there are no doorways or windows. THE first respondent is admittedly the owner of the land situate west of the line DC. THE dispute relates to the small triangular portion of land shown as BCD in the plaint plan and marked green. THE appellant claimed that he had title to the property under the sale deed in his favour and he was also in possession and enjoyment of the disputed strip of land. Even so, the first respondent, who is a recent purchaser of the property on the western side, attempted to encroach upon the strip of land in BCD and put her western wall in such close proximity as to touch the wall along BD. THE appellant objected to the proposed construction, but in spite of it, when the appellant was absent from town for a day or two, the first respondent made bold to extend her construction upto the wall along BD. Hence the appellant came forward with the suit, O. S. No. 2283 of 1974 on the file of the trial Court for obtaining the reliefs of declaration of title, injunction and mandatory injunction. Respondents 2 and 3 were impleaded as parties on the ground that they had actively helped the first respondent to put up the unauthorised construction.

(2.) THE first respondent contested the suit and averred that as per her title deeds she was entitled to the disputed portion of land and it was actually the appellant who had committed encroachment and built his wall along BD beyond the limits of his property. THE further contention of the first respondent was that both parties had referred the matter to arbitration and as many as thirty-four persons had acted as arbitrators and given an award under Exhibit B-2 and in terms of the award, the wall shown as BD has to be treated as a common wall by both parties and the first respondent is entitled to insert beams, rafters, etc., in the said wall and that both parties should execute a document in terms of the award and exercise rights over the common wall accordingly.

(3.) ON behalf of the appellant, it was argued that Exhibit B-2 is an unregistered award and as such, the lower appellate Court ought not to have placed reliance on the document. The further contention was that, in any event, the award is of no value since it had not been filed into Court and made a decree of Court under sections 14 and 17 of the Indian Arbitration Act (hereinafter referred to as the Act). In support of such a contention, the learned counsel for the appellant cited the following authorities: Mohamed Yousuf Levai Saheb v. Hajee Mohamed Hussain1, Valliammal v. Saroja2, and Sardool Singh v. Hari Singh and others3. In these cases, the ratio laid down is that an award made on a reference out of Court, but which had not been filed into Court in accordance with the Act and judgment obtained thereon, cannot ordinarily be put up as a defence to an action on the original cause of action.