DEO NARAIN SINGH Vs. SIABAR SINGH

JUDGEMENT

(1.) THE second appeal and the civil revision arise out of the same judgment of the court of appeal below. A preliminary objection has been raised that the second appeal is not maintainable.

(2.) THE facts giving rise to the appeal and the application are that a suit for declaration of title and recovery of possession in respect of a small area of land in khata No. 248 forming part of plot No. 2846 was instituted by the plaintiffs-petitioners. THE suit was filed in May, 1948. During the pendency of the suit on the 19th May, 1949, an application was filed for reference to arbitration purporting to be on behalf of the parties to the suit. THE court on the basis of that petition made an order of reference. In the agreement for reference, it appears that five arbitrators were named to decide the dispute between the parties. On the 5th of September 1949, a document was filed on be-half of the arbitrators signed by three of them which was said to be an award given by the majority of the arbitrators concerned. THE court, after having allowed time to the parties to file objections, if any, made the award a rule of the court and directed a decree to be passed on the basis of the award. It was against this decree that an appeal was filed to the court below on the ground that the reference was incompetent and the award was on the face of it illegal, and the court below overruling these objections affirmed the decree based upon the award. On these facts, it is quite clear that although an appeal may have been competent before the court of appeal below, a second appeal to this Court could not lie against the decision of the learned Subordinate Judge. THE preliminary objection, therefore, must prevail and the appeal is dismissed as being incompetent.

(3.) FOR these reasons, this application must be allowed and the order of the court below adopting the award must be set aside. The suit should now be heard and decided on merits by the learned Munsif according to law. The petitioners will be entitled to their costs; hearing fee one gold mohur.