AMBIKA PRASAD TEWARY Vs. BASAWAN PANDEY

JUDGEMENT

(1.) This application in revision is by the plaintiff and arises out of an arbitration matter. The point urged before me is that the arbitrators acted beyond the scopes of the reference made to them, and part of the award which they gave was upon a matter not referred to arbitration. The short facts are these. The petitioner before me instituted a suit in respect of plot No. 616, khata No. 130, which has an area of 13 kathas 10 dhurs only. The claim of the petitioner was that he had title to the land and was forcibly dispossessed by the defendant on 12-8-1950. The case of the defendant, who is opposite party be-fore me, was that he had good title to the land and was in possession of it for a long time. This dispute between the parties was referred to certain arbitrators by an order of reference to which both the parties had agreed. The arbitrators filed their award. In the award, the arbitrators found that the present petitioner had good title to the entire plot, and the land was in his possession till he was forcibly dispossessed on 12-8-1950. Having found title and possession in favour of the petitioner, the arbitrators purported to decide that the petitioner should give 5 kathas out of the plot from the western side, on which the defendant had constructed a hut, and the defendant would pay Rs. 50/- to the petitioner for those 5 kathas. In other words, the arbitrators, having found in favour of the petitioner on the question of title and possession, forced in effect a sale on the petitioner with regard to 5 kathas from the western part of the plot. The petitioner objected to that part of the award which related to the aforesaid sale of 5 Kathas, on the ground that that part of the award was upon a matter not referred to arbitration, and could be separated from the other part. The petitioner asked the Munsif to modify the award under the provisions of Section 15, Arbitration Act, 1940. The learned Munsif gave effect to the contention of the petitioner and confined the award to the dispute between the parties. He passed a decree in terms of the award as modified by him. The defendant took an appeal to the Court of the District Judge of Muzaffarpur. The learned District Judge held that the award was valid in its entirety, and no part of it was beyond the scope of the reference made to the arbitrators. On that footing, he allowed the appeal and directed the passing of a decree in terms of the award.

(2.) It is against the order of the learned District Judge of Muzaffarpur that the present application in revision is directed. Learned Counsel for the petitioner has contended that the arbitrators acted beyond the scope of the reference made to them when they forced in effect a sale on the petitioner. Learned Counsel has contended that that part of the award which related to 5 kathas out of the western portion of plot No. 616 was upon a matter not referred to the arbitrators, and the arbitrators acted 'ultra fines compromissi'. In my opinion, the contention of learned Counsels for the petitioner is correct and should be accepted. What was referred to the arbitrators was a simple dispute between two parties. One of me parties said that he had title to the land and was in possession till he was forcibly dispossessed by the other party on 12-8-1950. The other party said that he had title to the land which has all along been in his possession. This was the dispute which was referred to the arbitrators. Learned Counsel for the petitioner has placed before me the terms of the reference to the arbitrators. It is clear from the petition of the parties by which their dispute was referred to the arbitrators that what was referred to the arbitrators was the aforesaid simple dispute between the parties. It was specifically stated that whatever decision the arbitrators gave about the aforesaid dispute would be binding on the parties. The arbitrators decided the dispute wholly in favour of the petitioner. They found that the petitioners had title to the entire plot and they further found that the petitioner was in possession till he was dispossessed forcibly by the opposite party on 12-8-1950. Having thus decided the dispute wholly in favour of the petitioner, they proceeded to force what in effect was a sale of 5 kathas on the petitioner. In my opinion, the principle laid down by their Lordships of the Privy Council in 'Omanhene Kobina Foli v. Chief Obeng Akessee', AIR 1934 PC 185 (A), should apply in the present case. Their Lordships were dealing with a case in which the parties claimed two extreme boundaries, and the duty of the arbitrator was to ascertain the boundary which existed as a matter of title. Instead of doing that, the arbitrator laid down a new boundary which, he thought, was a fair demarcation of boundary as between the parties. It was held by their Lordships that the arbitrator had misconceived his duty under the reference and act-ed 'ultra fines compromissi' in laying down a new boundary. In the case before me also, it was no part of the reference to the arbitrators that the petitioner should be made to execute a sale deed in respect of 5 kathas of land to which he had good title. In -- 'Narsingh Narain v. Ajodhya Prasad Singh', 16 Cal WN 256 (B), it was observed that, although an arbitrator is allowed greater latitude than Courts of law in departing from rules of practice which Courts have adopted for general convenience, and an arbitrator's award is not open to review on the merits upon grounds of error of law as well as of facts, an arbitrator cannot go beyond the precise questions submitted to him. In my opinion, the learned Munsif was right in his view that the arbitrators in his case had gone beyond the precise questions submitted to them, when they decided to give 5 kathas of land to the opposite party, and the learned District Judge was wrong in thinking that the whole of the award was within the scope of the reference made to the arbitrators. It is true that when parties refer their dispute to certain arbitrators, they set up a domestic tribunal, and, as long as the arbitrators act within their authority and according to the principles of justice, their award is not subject to review by a Court of law. Where, however, the arbitrators act beyond their authority, the award is open to question. The position would have been different if the arbitrators had found that the opposite party had good title to 5 kathas of land; that, however, was not their award; their award was that the petitioner had title to the whole of the plot but still they decided that the petitioner must part with 5 kathas in favour of the opposite party for a consideration of Rs. 50/-.

(3.) A second question which has been mooted before me is whether it was open to the learned Munsif to modify the award in the manner he did. The point, I thins, is covered by the words of Section 15, Arbitration Act. It is clear from that section that the Court may modify an award where it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect the decision on the matter referred. Here, that part of the award which related to 5 kathas from the western portion of plot No. 616 was upon a matter not referred to arbitration. It could be separated from the rest of the award, and did not affect the decision on the matter referred to the arbitrators.