RAMAYYA AND ANR. Vs. VENKATACHELLAMMA AND ANR.

JUDGEMENT

(1.) THE appellants are the plaintiffs, who sued the two defendants on 25 -6 -1948 for a permanent injunction restraining them from opening a doorway into an alleged private lane belonging to them and for a mandatory injunction directing the removal of a wall which encroached on their site. This appeal arises out of a reference to arbitration outside court subsequent to the filing of the suit, which degenerated into a regrettable fiasco as between the arbitrators themselves, three of them giving the He direct to the fourth arbitrator one S. Rattiah. The learned District Munsif accepted the evidence of three arbitrators examined for the plaintiffs as P. Ws. 1, 2 and 3 that there was an award in writing signed by all the four arbitrators and decreed the suit in accordance with a copy kept by P. W. 1 The finding on their evidence was that Rattiah suppressed the signed award. The learned Subordinate Judge in appeal preferred to believe Rattiah and remanded the suit for fresh disposal.

(2.) THE relevant facts briefly are these. The suit was preceded by the usual preliminary canter in the Magistrate's Court. The first defendant who is a woman one Venkatachellamma bought a site next to the plaintiff's house and started building. The 2nd defendant is said to be some relation of hers but said to be looking after her affairs. When they were obstructed by the plaintiffs, they filed M. C. No. 7 of 1948 in the Magistrate's Court and got an 'ex parte' order under Section 144 , Cri. P. C. On 18 -6 -1948, plaintiffs retaliated by filing M. C. No. 9 of 1948 for cancellation of this order and followed it up with the suit O. S. No. 362 of 1948. On 17 -7 -1948, both parties referred their dispute to the arbitration of four persons by a signed reference Ex. A. 1. It is common ground that on 5 -8 -1948 the four arbitrators took measurements. According to three of them P. Ws. 1 to 3, they were all in agreement as to the terms of the award, which was written in Rattiah's house and the parties who were waiting outside were orally informed. The award was left with Rattiah for further action. Then on 10/8/1948 the defendants issued a notice Ex. B. 1 to the arbitrators not to proceed with the enquiry. On 16 -8 -1948 the three arbitrators P. Ws. 1 to 3 appeared in the Criminal Court and filed a memo there Ex. A. 6 embodying the terms of their award, alleging that the original signed by all the four arbitrators had been left with Hattiah.

(3.) I have found great difficulty in following and appreciating the numerous grounds given in several brief paragraphs by the Subordinate judge for rejecting the evidence of three of the arbitrators P. Ws. 1 to 3. One was that the award, if written, should have been served on the parties then and there. Another was the failure to purchase the requisite stamp then and there on the afternoon of 5 -8 -1948 and so on. It is regrettable that the four arbitrators to whom the parties by a signed reference entrusted their dispute for resolution who are seemingly respectable persons should give each other the lie direct in this way. The reasons given by the Subordinate Judge for reversing the finding of the District Munsif, who had the great advantage of hearing all the arbitrators in the witness box are so unconvincing, that in fairness to the arbitrators themselves the rejection in toto of the evidence of three of the arbitrators, P. Ws. 1 to 3 should not, I think be permitted to stand. It is often difficult and embarrassing for a court to resolve so strong and direct a conflict in oral testimony between seemingly respectable persons The view to which I am inclined is that there was, as P. Ws. 1 to 3, have deposed, an agreement as between them and Rattiah as regards the award which should be passed and that it was in fact reduced to writing and signed at any rate by P. Ws. 1 to 3 before they left the award with Rattiah. It is probable that Rattiah was influenced to change his mind) it may be after a conversation with Anne Sanjivayya, who has avoided the witness box, and that he did not in fact sign the award at all. I find it extremely difficult to believe that P. Ws. 1 to 3 would have gone to the length of swearing falsely that they all signed an agreed award which was left with Rattiah in whose custody the deposit money was also kept for formal notice to the parties and for further action.