GIAN CHAND SHARMA Vs. BANSI LAL

JUDGEMENT

(1.) Gain Chand filed a suit for the issue of a permanent injunction restraining the defendants from interfering with his water spout on the ground that his water was being discharged from the same for the last twenty years, that three months before the suit the plaintiff had demolished the chaubara of his house and wanted to rebuild it, and when he was going to build the chaubara the defendants stopped him from reconstructing the water spout.

(2.) The suit was contested by the defendants who pleaded that the plaintiff used to discharge-his water from a part of his own wall, that when the defendants were minors, he changed the position of his water spout and now he wanted to open the same at a place where he had no right to do so.

(3.) A number of issues were struck and evidence was led by the parties on the same. On the 23rd January, 1956, the parties filed a joint application before the Court in which they admitted that the wall was joint of the parties and that it might be divided into two equal shares. It was further stated in this application that Gian Chand plaintiff would be the sole owner of the portion of the wall which would fall to his share and similarly, the defendants would be the owners of the other half of the wall, that the plaintiff would remove-his encroachments, if any, on the other hall of the wall which would fall to the share of the defendants, that the Court might appoint anybody to-partition the wall and his decision would be binding on the parties, that no party would have any right to file an appeal or revision from the decision-of that person who would be in the position of a referee and the parties would bear his expenses half and half, and that after the partition of the wall, the Court might dismiss the suit but the parties would have a right to file a separate suit. On that very date, statements of the parties were recorded on this joint application and they stated that somebody might be appointed by the Court to partition the wall and his decision would be binding on the parties as that of a referee. On the same date the Court, in accordance with the-application of the parties, appointed Shri Trilok Chand to partition the intervening wall of the parties. It was further ordered that he should put in his report by the 6th of February, 1956. It seems that the report was not received on the 6th February, 19,56, and the case was adjourned to the 27th February, 1956. Since the report was not received even on the 27th February, 1956, the case was fixed for the 29th February, 1956. On the 29th February, 1956, it was found that Shri Trilok Chand was not prepared to act as a referee and therefore the Court appointed Shri Satish Chandra Pleader to partition the wall and he was directed to go to the spot, partition the wall and send his report by the 3rd March, 1956. It appears that on the same clay an application was filed by Gian Chand plaintiff praying that since the previous arbitrator had refused to decide the matter, the Court itself should decide the same and it might not be referred to a new arbitrator, On this application, the Court issued notice to the other side for the 3rd March. 1956, which was the date fixed in the case for the report of Shri Satish Chandra, the newly appointed referee. On the 3rd March, 1956, since Shri Satish Chandra's report had been received, the Court dismissed the suit as per statements and application of the parties dated the 23rd January 1956, and ordered the parties to bear their own costs. The Court further ordered that the parties could get the last report, namely, that of Shri Satish Chandra, duly enforced and on the same day, the Court passed the following order on the application dated the 29th February, 1956, of Gian Chand plaintiff:-