KAILASH NATH GUPTA Vs. BRIJ MOHAN

JUDGEMENT

(1.) -At time of argument, no one on behalf of contesting respondents was present hence only the arguments of learned counsel for the petitioner were heard.

(2.) THE relevant pedigree through which contesting parties are related to each other is given below : Mata Dayal........................................................... Ram Lal Mathura........................Makdum Shitla Prasad ....................... ...................................... Brij Mohan Radhey Res. No. 1 Shyam Res. No. 2 Chameli = Hira Lal Lakhpati = Jagannath Kailash Nath .............................................. Petitioner Shiv Munna Paras Ghanshyam Shanker Lal Nath Das Res. No. 4.

(3.) PETITIONER filed a suit basically against Shiv Shanker for partition of the four houses bequeathed through the Will of 1944 being O. S. No. 10 of 1964, before Civil Judge, Jaunpur. However, in the suit Chameli Devi and her other three sons were also impleaded as defendants. It was alleged in the plaint of the said suit that by virtue of Will of 1944 plaintiff petitioner and Shiv Shanker defendant No. 1 were joint owners of the four houses. It was further alleged that the other defendants were being impleaded in order to avoid any complication or dispute, however, they had no right in the suit property, i.e., four houses. During the trial of the said suit, one Ram Pratap was examined as defendant's witness. While his examination was in progress he stated that earlier the matter had been referred to arbitration and he was one of the arbitrators and arbitrators had given award on 26.5.1949 which was registered. Sri Ram Pratap filed copy of the registered award in the suit during his examination whereupon a Misc. Case No. 17 of 1965 was registered by the same court under Section 14 of Arbitration Act, 1940. The said misc. case was dismissed on 18.11.1965 on the sole ground that original award had not been filed hence arbitration proceedings were misconceived and not maintainable. However, 8 days before the said order, i.e., on 10.11.1965, original award had already been filed in the Court. Against order dated 18.11.1965, a revision was filed in this Court being Civil Revision No. 191 of 1966. The said revision was dismissed on 18.9.1968, copy of the judgment is Annexure-6 to the writ petition. The complete order dated 18.9.1968, is quoted below :