DHARMA GAUDA Vs. GANAPATI GAUDA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal against the confirming judgment dated 14-5 1960 of the Additional Subordinate Judge, Berhampur, dismissing' his suit for eviction, possession and for recovery of arrears of rent from the defendant.

(2.) THE plaintiff and defendant 1 are the sons of one Raju Gouda, all of whom were members of a Hindu Mitakshara joint family. Difference having arisen amongst them, they referred the matter for settlement to three named Arbitrators including p. W. 3 and executed a Muchalika in favour of the arbitrators (Ext. 1) on 16-61941 and registered it on 17-6-41. It was agreed therein that the arbitrators would partition all their properties both ancestral and self-acquired. But defendant no. 1 later on gave a registered notice (Ext. 10) on 27-2-1942 cancelling the said mucha-Kka which however, he withdrew by Ext. 11, and thus agreed to abide by the award of the arbitrators. The arbitrators gave their, award (Ext. 2) on 28-3-42 which was actually registered on 30-3-42. According to the plaintiff, the three items of the suit properties, amongst others, were allotted to him in the award, and each of the parties took possession of the respective properties that fell to his share and was in enjoyment of the same as owner thereof. In about the year 1944, the plaintiff shifted to village Jugudi entrusting the defendant 1 with the two suit-houses (items 1 and 2) for collecting the rents therefor from the tenants and to pay the same to the plaintiff. Regarding the third item of the suit-property which was an iron safe, it was alleged by the plaintiff that he entrusted it to defendant 1 only for safe custody with the understanding that it should be returned to him whenever demanded. On return from Jugudi the plaintiff demanded of the defendant for handing over possession of the suit-houses and the rents thereof as also the iron safe, but as the defendant failed to do so, he served registered notice through his Advocate and later on filed the present suit.

(3.) IN a case reported in Ram Chander Singh v. Munsi Mian, AIR 1950 Pat 48 the suit was filed for recovery of some money payable under an award. Defendant challenged the award and pleaded the bar to the suit under Section 32. Their lordships relying upon the aforesaid Madras decision held that such a suit is not maintainable. Two later decisions of the Patna High Court reiterated the same view : Sia Kishori, Kuer v. Bhairavi Nandan Sinha, AIR 1953 Pat 42 and Govt. of india v. Jamunadhar Rungta, AIR 1960 Pat 19.