RAMBILAS MAHTO Vs. BABU DURGA BIJAI PRASAD SINGH

JUDGEMENT

(1.) THIS is an appeal by defendants Nos. 1 to 3, 5, 7, 8 and 16, and it arises out of a suit instituted by the plaintiff (respondent No. 1) for declaration of his title and confirmation or, in the alternative, recovery of possession over 13,42 acres of land Appertaining to Khatas 67 and 68 in village Khurmabad (Old Tauzi No. 6361 corresponding to new Tauzi No. 12173), and for a further declaration that an award of the arbitrators dated the 3rd September 1947 is void, inoperative, fraudulent and not binding upon the plaintiff.

(2.) IT is common ground that in the survey record of rights (Exts G/1 and G-1/1), the suit lands stood recorded in the names of Jageshwar Mahto and Damri Mahto, sons of Jhakri Mahto. Defendants 1 to 8 are the sons of Jageshwar Mahto and defendant No. 16 is the sou of Damri Mahto. Defendants 4 to 10 are other members of the same family. There were several properties of the Tauzi. One of them was Chaudhary Keshari Sahai Singh who had -/6/5 pies proprietary interests. In 1918, Choudhary Keshari Sahai Singh instituted a batch of rent suits against several tenants. Rent Suit No. 464 of 1918 in respect of khata No. 67, and Rent Suit No. 474 of 1918 in respect of khata No. 68, were instituted against Subhag Koeri, another brother of defendants 1 to 3. Another suit of the same batch, namely, Kent suit No. 477 of 1918 was instituted against Dilbaso Kuer and Kawalbas Kuer, widows of one Baldeo Singh. All these rent suits were decreed, on admission of the defendants as to the incorrectness of the survey entries, against Dilbaso Kuer and Kawalbas Kuer only. The judgment of the rent suits, which was passed on the 32nd May 1919, is on the record as Ext. 18(a). On the 5th December 1923, Dalbaso Kuer and Kawalbas Kuer, along with one Jagrup Singh, executed a sale deed (Ext.1) in respect of the lands of Katha Nos 67, and 68, besides other Khatas, in favour of Radha Mohan Singh, a brother of the plaintiff. Subsequently, in November 1940, by a partition between the two brothers, the lands of Khata Nos. 67, and 68 were allotted exclusively to the plaintiff. Meanwhile, the proprietary interest of Choudhary Keshari Sahai Singh was acquired by Choudhary Bhagwat Saran Singh, the father of the plaintiff, who thereupon became the sixteen annas proprietor of the Tauzi. In 1936, the plaintiff was mutated along with certain other persons in place of Choudhary Bhagwat Saran Singh in respect of the entire proprietary interest in the Tauzi. But in 1941, the plaintiff alone was mutated in respect of sixteen annas interest in the Tauzi.

(3.) THE learned Additional Subordinate Judge came to the conclusion that the correctness of the survey entries in respect of the suit lands has not been rebutted: that defendants 1 to 10 and 16 held raiyati interest in the khatas in question; that Dilbaso Kuer and Kawalbas Kuer had no interest which they could convey to Radha Mohan Singh or to the plaintiff under the sale deed (Ext. 1); and that the suit lands are not the bakasht lands of the plaintiff. He further held that the ancestors of the defendants first party were and the defendants first party are all along in possession of the suit lands and that Radha Mohan Singh or the plaintiff was never in possession of the same. No title was acquired by the plaintiff even by adverse possession and that, in any view of the matter, the suit is barred under Article 142 of the Limitation Act, 1908. THE learned Judge further held that the award (Ext. G/1) is neither void nor liable to be set aside in the present suit and that it is binding upon the plaintiff since it is not vitiated on the ground of misconduct or on any other ground put forward by the plaintiff. THE arbitrators had given notice of their award both to the plaintiff and to defendant No. 1 on the 5th September 1947 and, therefore, the remedy of the plaintiff was to have got the award filed in Court and then to file an application for setting it aside in accordance with the provisions of Sections 14(2) and 15 of the Arbitration Act, 1940, but since the plaintiff did not follow this course, Section 32 of the Act precluded the plaintiff from challenging the validity of the award or seeking any relief for setting it aside. Principally upon these findings, the learned Additional Subordinate Judge dismissed the plaintiff's suit.