KEHAR DASS Vs. TARAK SINGH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the Senior Subordinate Judge, Ludhiana, dated April 30, 1963.

(2.) THE facts of this appeal are that the site in dispute marked by letters 'abce' in plan Exhibit P. 1 is dera of which the plaintiff is the owner. It was declared to be part of dera in the year 1933 by the Sikh Gurdwara Tribunal. There is a wall towards the South of this site. Defendant No. 1 has illegally obtained permission from the Gram Panchayat of the village for opening a door in the wall and to pass the water over the site in dispute. Under the colour of this permission, Defendant No. 1 proposed to open the door and to pass water over the property in dispute. The plaintiff, therefore, filed a suit that defendant No. 1 be restrained from doing so. The suit was contested by defendant No. 1 who denied the allegations of the plaintiff. He, inter alia, pleaded that the plaintiff is not the owner of the site in dispute, that the judgment of the Sikh Gurdwara Tribunal did not relate to the site in dispute and that it is a part of the shamilat property on which the public has an access as of right. It was also pleaded by him that the matter had been referred to the Panchayat by the parties and the Panchayat entered upon the reference and gave an award Consequently, the suit was not maintainable in the Court. The trial Court decided the suit in favour of the plaintiff and decreed the same. Defendant No. 1 went up in appeal before the Senior Subordinate Judge, Ludhiana, who reversed the judgment and decree of the trial Court and dismissed the suit. The plaintiff having felt aggrieved from the judgment and decree of the Senior Subordinate Judge has come up in appeal to this Court.

(3.) THE second submission of the learned counsel for the appellant is that the appellant was not barred from instituting the suit in view of the award of the Arbitrator. He submits that the finding of the first appellate Court that the suit is not maintainable as the matter has already been decided by an Arbitrator, is erroneous. In order to consider the contention of the learned counsel for the appellant, it will be necessary to reproduce paras. 5 and 6 from the plaint, which are as follows:-