SHAMBHU DAYAL AND OTHERS Vs. PT. BASDEO SAHAI

JUDGEMENT

(1.) This application in revision has been laid before this Full Bench upon a reference made by Dhavan, J. It is directed against an order of the Judge Small Cause Court, Agra (exercising the powers of a Civil Judge) by which he reversed in appeal an order of the Munsif Fatehabad, Agra, refusing to set aside an award and sent back the case to him with the direction to hear and decide the suit in which the award was given.

(2.) The relevant facts are these. Basdeo Sahai, plaintiff, filed Suit No. 121 of 1949 in the court of the Civil Judge, Agra, against Gauri Shanker, Basant Lal and Sukh Ram for a declaration that he was in possession of the property in suit which is a house situate in Qasba Fizabad, district Agra as its exclusive owner and that the defendants had no right to disturb his possession over it in any manner. The suit was transferred to the court of the Munsif Fatehbad, Agra, by an order of the District Judge. During the pendency of the suit Gauri Shanker and Basant Lal defendants died and their heirs were brought on record. The case of the plaintiff was that the house in suit was the self-acquired and exclusive property of Saktoo who was an adopted son of Mukund and his wife and who succeeded to the entire property left by them as such. It was alleged that after the death of Saktoo his property devolved upon his son Gur Dayal and that the plaintiff was the son of Gur Dayals sister, Smt. Jamuna Devi. It was further alleged that Gur Dayal executed a will dated January 16, 1916 providing that after his death his entire property would go to his wife Smt. Gulab Kuer and that the plaintiff would become the owner thereof after the death of Smt Gulab Kuar. In accordance with the provisions of the aforesaid will Smt. Gulab Kuar got the property left by her husband and she too executed a will dated May 4,1947. bequeathing all her property to the plaintiff. The plaintiff laid claim to the house in dispute under the two wills mentioned above and, alternatively, as an heir of Gur Dayal by virtue of being his sisters son. The plaintiff asserted that he had been exercising rights of ownership in the disputed house but as the defendants had recently put forward a claim in respect of it by filing an objection under Order XXI, Rule 100, C.P.C. in proceedings for execution of a decree for ejectment obtained by him against a tenant of the house and as their objection had been allowed he was compelled to institute the suit. The defendants resisted the suit and repudiated the title of the plaintiff. They denied that the plaintiff was Gur Dayals sisters son or related to Gur Dayal in any manner and stated that neither Gur Dayal nor his widow Smt. Gulab Kuar had executed any will. They further contended that the house in dispute had been acquired by Saktoo from joint family funds, that his son Gurdayal was the owner thereof by right of survivorship after the death of Saktoo, that Gur Dayal had adopted as his son one Raghubir Prasad who died six months after the death of Gur Dayal and that Smt. Gulab Kuar inherited the house thereafter as a limited owner. According to the defendants, neither Gur Dayal nor his widow Smt. Gulab Kuar was competent to execute any will in respect of the house and the wills, if executed, were totally ineffective.

(3.) During the pendency of the suit the parties agreed that the whole matter in difference between them in the suit be referred to the arbitration of Sri Mathura Prasad Kacker, an Advocate of Agra, and the learned Munsif, accordingly, made a reference on September 21, 1951. Sri Mathura Prasad Kacker entered upon the arbitration and after hearing the parties, taking the evidence produced by them and making a local inspection gave an award on January 5, 1953. According to the award the plaintiff was not entitled to any relief and his suit was to be dismissed with costs. The plaintiff preferred objections to the award but they were rejected by the Munsif who pronounced judgment in terms of the award and dismissed the suit with costs on April 18, 1953. On an appeal filed by the plaintiff, the predecessor-in-office of the learned Judge who passed the order under revision set aside the order of the Munsif and sent back the case to him with the direction that he should remit the award to the arbitrator and then dispose of the case according to law. Against the said appellate order the plaintiff came up in revision to this court. On April 14, 1961, that revision was allowed, the order passed in appeal was set aside and the case was sent back to the appellate court for being decided afresh. The case was, accordingly, reheard and the order against which this application in revision is directed was passed on July 18, 1963.