MINALAL MUNDHRA Vs. ANCHI DEVI

JUDGEMENT

(1.) PLAINTIFF is the appellant. On the 14th of December 1949, plaintiff and defendant No. 1 purchased two portion of plot No. 2783. The plaintiff took the northern side and the defendant the southern. These two blocks have been referred as B and C in the courts below. On account of a dispute about the discharge of rain water from the plaintiff's portion which, before the purchase by the parties, used to be discharged over the southern portion as the slope of plot No. 2783 was from north to south, proceedings under S 147 of the Code of Criminal Procedure were started at the instance of the plaintiff. They were, however, quashed under the orders of the High Court. Thereafter the plaintiff instituted the present suit for a declaration that they had the right to discharge the rain water from their land through the defendants' portion as the natural slope of the land was so constituted. He also asked for an injunction against the defendants restraining them from making any change in the level of their grounds so as to block the flow of the rain water from the plaintiff's land. While the case was pending in the trial court and a few of the witnesses had been examined on the 6th of February 1960, both the sides made a joint petition asking the Court to refer the dispute to the arbitration of two gentlemen named in that petition, Sri Sitaram Rungta and Sri Biswanath Mundhra. They asked that the entire matter in dispute between the parties should be sent for arbitration of those two persons. The arbitrators took several adjournments from the Court after a reference was made to them, and on the 9th of January 1961 they filed their award, notice of which was given to both the parties. An objection was filed on behalf of the plaintiff against that award. His grievance was that the responsibility for completion of the work in the plaintiff's ground by way of changing the natural slope of the land, as given in the award, was undertaken by the arbitrators, and that the award which was based on an agreement between the parties before the arbitrators did not contain the basis of that agreement involving the change in the municipal drain situate on the northern side of the plaintiff's land. A rejoinder was filed by the defendants, and on hearing both the parties the court passed an order on the 27th of April 1961 modifying the award to some extent and ordered that the award may be accepted after modification to the effect that the defendants were directed to complete the earth work as proposed in the award before the 15th June 1961 failing which the plaintiff would be entitled to enforce the decree specifically against the defendants. The court decreed the suit against the defendants in terms of the award as modified and directed a decree to be drawn up accordingly. In pursuance thereof a decree was drawn up on the 11th of May 1961 signed by the learned Munsif. Against that an appeal was taken to the District Judge by the plaintiff without any success. The present second appeal is directed against that, and the plaintiff is the appellant.

(2.) AS I have indicated above, the dispute between the parties in the suit was about the right of the plaintiff to discharge the rain water horn his land over the land belonging to the defendants which lies to the south of the plaintiff's land. He claimed that as the natural slope and the defendants were trying to obstruct that flow of rain water by obstructing the natural slope in making constructions on the land and also raising the level of the vacant grounds. The dispute between the parties, therefore, was about plaintiff's right to discharge rain water from his land to the south and over the defendants' land. The defendant denied this right of the plaintiff and raised several pleas in answer to the action against them. This was the subject-matter that was referred, on agreement between the parties, by the court to arbitration by two gentlemen of the town; one of them was the Chairman of the Municipality and the other is said to be a relation of the plaintiff. While the matter was before the arbitrators, as it appears from the award, they (arbitrators) found that the natural slope of the land was such that the rain water from the plaintiff's portion of the land was to be discharged over the defendants' land lying to the south of it, but that course would involve demolition of a part of a costly building already put up by the defendants. They suggested that the level and slope of the plaintiff's vacant land should be changed so as to drain water from it to the north into the municipal drain. Parties agreed to this suggestion and accordingly the award was made. It further appears from the award that the arbitrators wanted to complete this change in the plaintiff's land at the cost of the defendants before the award was filed in Court, but by the last date, by which the award was to be submitted, they found that some portion of the work was still left undone in that connection. The arbitrators, therefore, stated in their award that they had undertaken, as agreed to by the parties, to complete that work. On that condition they made the award and filed it in Court. It will be necessary to reproduce two paragraphs of the award:

(3.) LEARNED counsel next urged that it was not open to the arbitrators to pass an award about changing the natural slope of the plaintiff's land. The matter under reference to them was the subject-matter of the suit itself. The dispute between the parties in the suit was limited to the right of the plaintiff to discharge his rain water over the land of the defendants. This right was disclaimed by the defendants. So what was left under the reference to the arbitration was whether the plaintiff had such right or not. It was not for the arbitrators to make out a third case and give directions in that respect. In support of this contention learned counsel referred to the case of Sherbanubai Jaffer-bhoy v. Hooseinbhoy Abdoolabhoy, AIR 1948 Bom 292. There it was observed that after reference under Section 23 of the Arbitration Act, the Court will continue its supervision over the conduct of the reference. Arbitrators are bound to strictly coin-ply with the terms of reference and make an award in obedience to the order of reference. If any amendment or modification is sought about the matter under reference or in regard to the authority of the arbitrators and their scope of work, that can be effected only by securing an alteration in the reference from the Court. In that case the arbitrators had directed an ex-gratia payment to be made by one party to the other and that was objected to. The other case relied upon In this respect was Omanhene Kobina Foil v. Chief Obeng Akessee, AIR 1934 PC 185. There the two parties were claiming the boundary of a particular land to be at two different points. The arbitrators made a new boundary line between the two extremes as put forward by the parties. They were to find out by arbitration which of the parties was right in fixing his boundary line. It appears from the report that after the reference was made the parties agreed before the arbitrators that they (arbitrators) without taking any evidence from the parties would decide the matter on hearing the arguments from both the sides. In doing so, the arbitrators laid down a new boundary line. This was objected to by the Court and the Judicial Committee held that there can be no agreement between the parties in regard to the function of the arbitrators or in regard to how they should act and it was not open to the arbitrators to follow such an agreement if the reference order did not sanction that. In that case, the way in which the arbitrators proceeded was in conflict with the order of reference. In my view, neither of the cases is of assistance to the appellant. The agreement on which the arbitrators proceeded in the latter case was not in regard to the subject-matter but in regard to the procedure and so it came under the disapproval of the Judicial Committee, In the present case the award does not make any arbitrary decision about the rights of the parties nor what the award laid down is different from the right claimed by one party or the other. It is clear from the award that the arbitrators recognised the plaintiff's right to discharge his rain water on the south over defendants' land, but they upheld that right subject to certain conditions and that was that the natural slope of the plaintiff's land should be changed at the cost of the defendants to the north. This was by agreement between the two parties. Such a compromise could also be effected in the suit itself before the Court What can be done in a suit in Court can also be done before the arbitrators.