RAM BARAN PROSAD Vs. RAM MOHIT HAZRA

JUDGEMENT

(1.) The only point which arises for consideration in this appeal relates to the construction of what may be roughly called a pre-emption clause in a partition award and the determination of its scope and of its effect on the rights of the contending parties. The relevant facts are no longer in dispute and they may be shortly stated as follows:

(2.) Two brothers, Tulshidas Chatterjee and Kishori Lal Chatterjee, owned certain properties (land and building) on Paharpur Road, mouza Garden Reach, Kidderpore, in the suburbs of Calcutta. In or about the year 1938, Kishori sued for partition of the said properties and, eventually, the matter was referred to arbitration. On 16th December, 1940, the arbitrators filed their award, on which a decree was passed on March 15, 1941. Under the award, which formed part of the aforesaid decree, two of the four blocks A, B, G, D into which the disputed properties were divided by the arbitrators, were allotted to Kishori and the remaining two to Tulshi, Kishori's blocks being B and D and Tulshi's A and C. Two common passages X. and Y and a common drain Z were kept joint or ejmali between the parties for their use. In the award there was a term or clause to the following effect:

(3.) The dispute between the parties arose under the following circumstances :