SHABBIR AND ANOTHER Vs. SAYEED AHMAD AND OTHERS

JUDGEMENT

(1.) By this writ petition the petitioner has challenged judgment dated 30th May, 1992 passed by IX Additional District Judge, Moradabad in an appeal under Sec. 39 of Arbitration Act.

(2.) Counter affidavit and rejoinder affidavit have been exchanged and, therefore, writ petition is being disposed of finally at the stage of admission.

(3.) The facts essential for the purpose of determining controversy in this case are that Smt. Kariman (mother of petitioners) was recorded together with Kareem and Raheem on the land in dispute in the basic year. An application was moved by petitioner Shabbir before Assistant Consolidation Officer under Sec. 12 of U.P. Consolidation of Holdings Act as it stood amended by U.P. Act No. 38 of 1958 (in short Act) wherein he prayed that his name together with his brother Bira be mutated in place of Smt. Kariman over Khata No. 12 of village Phool Singa, Tehsil Sambal, district Moradabad, as petitioner Shabbir claimed co-bhumidhari rights together with other cotenure holders of Smt. Kariman and as bhumidhari rights involved determination of question of title, a reference was made under Sec. 12 (4) of the Act to Civil Judge. The Civil Judge on his turn, after framing two issues, referred the matter to an arbitrator who gave award on 20.8.1970 holding that Shabbir and his brother Bira were not co-bhumidharis. When the award was received by Civil Judge, he set aside that award by order dated 9.2.1971. The order of Civil Judge was confirmed in appeal. Revision against it also failed. When the matter came up again before the Arbitrator he by his order dated 27.7.1981 gave an award holding petitioner to be a co-bhumidhar. The award was given after recording finding that the land was succeeded by Kariman from her husband Nazir, who died in the year 1914. It is admitted case of parties that Smt. Kariman remarried Ali Bux in the year 1917 and the petitioners were born to her from Ali Bux. The Arbitrator held Smt. Kariman remained in possession of disputed land even after re-marriage till the time of her death in the year 1958. The Arbitrator also held that as Smt. Kariman remained in possession of land in dispute after re-marriage therefore she prescribed rights as no steps were taken for getting her name deleted within 12 years. According to him, after expiry of 12 years, Smt. Kariman became co-tenant in her own rights. An objection was filed before the Civil Judge against award, who rejected objection, and by order dated 24.12.1991 he made award rule of the court. An appeal was preferred by contesting respondents. The appellate court set aside the award and framed further two issues for decision and ordered remand for fresh decision in view of newly framed issues. The issues which were framed are as under:-