SUKHDEO SINGH Vs. RADHIKA SINGH

JUDGEMENT

(1.) IN this appeal by the plaintiffs the only question for determination is whether the registration of an award which is signed by all the arbitrators is invalid by reason of the fact that one of the arbitrators did not appear at the time of the registration.

(2.) THE plaintiffs' case was that the lands in suit are the entire khata 35 and 1/4 of khata 46, and were originally in the possession of Kali Prasad Singh, Radhika Singh and Kishun Singh as ryots under the Bettiah Raj, and the remaining 3/4ths belonged to Rameshwar Singh and Mt. Anurago Kuer as ryots under the Raj. In the year 1933, the Raj instituted a suit for arrears of rent for the lands of khata 35 and l/4th land of khata 46, and impleaded as defendants the ryots of both the khatas. In execution of the rent decree the Raj became the auction-purchaser on 27th April 1934, and took dakhaldehani and possession on 15th April 1935. On 17th February 1936, the Raj settled the lands of khata 35 and l/4th of the land of khata 46 with the plaintiffs at an annual rental of RS. 29-11-6, and since then the plaintiffs have continued in possession. In the meantime in the year 1938, a criminal proceeding under Section 107, Criminal P. C., wag started between the plaintiffs on the one hand and Radhika Singh, Kalika Singh and others on the other hand which terminated under an order of the Deputy Magistrate dated 24th June 1938, in which he wrongly held that the Bettiah Raj notwithstanding the dakhaldehani could not obtain direct possession against the original tenants who continued in possession and that the plaintiffs also did not succeed in getting possession from the tenants. It was suggested in that order that the parties might have their rights decided by the civil Court. THE plaintiffs averred in the plaint that within three weeks of this order the panchanama dated 15th July 1938 came into existence by which the parties, namely, the plaintiffs and the original ryots agreed to have their dispute settled by arbitrators. But as none of the punchas whose names are found in the panchanama were appointed by the plaintiffs, nor had the punchas ever assembled or heard the parties, the so-called award dated 20th July 1938, of which the plaintiffs had no knowledge whatsoever till some years later was not at all binding on them. THE plaintiffs alleged that notwithstanding Section 107, Criminal P. C., proceedings or the award, they have continued in possession of the entire 10 bighas of lands, and the cause of action for the suit was a recent interference by the defendants with the possession of the plaintiffs on 27th August 1944. Accordingly, the suit giving rise to this appeal was instituted on 5th September 1944.

(3.) MR. De argues that the Courts below were wrong in holding that the award gave a valid title to the defendants regarding a portion of the land which was settled by the Raj with the plaintiffs in 1938. His argument is that the Registering officer had no jurisdiction to register the award when one of the parties did not appear and admit execution, and he drew attention to the provisions of Section 35, Registration Act, which provides that the registering officer shall refuse to register the document as to the persons so denying, appearing or dead or not appearing.