ASHARFI LALL DASS Vs. RAM PRASAD JHA

JUDGEMENT

(1.) THE appellant has filed this appeal against the order of the Court below recording a compromise in Title Appeal No. 229 o 1950, under Order 23, Rule 3, Code of Civil Procedure, as between the respondent first party who was appellant in the Court below, and the appellant before me who was the first respondent there. THE appeal in the Court below, in view of the recording of this Compromise was dismissed as against the other respondents.

(2.) THE appellant had filed a suit for partition. A preliminary decree was passed. A pleader Commissioner was appointed, and after hearing the objections of the parties, a final decree followed. This appeal, being Title Appeal No. 229 of 1950, was filed by Ram Prasad Jha against the final decree. He filed an application on 27-8-1951, asking the Court below to record an alleged compromise between him and Asharfi Lall Dass arrived at through the intervention of some of the well wis-hers of the parties. THE learned Subordinate Judge has found that a compromise had been arrived all and, therefore, has ordered its recording accordingly.

(3.) IN my opinion the decision of the learned Subordinate Judge on both these questions is wrong. I have gone through the oral evidence on the records of this case. I have also gone through the recitals in exhibits 1 and la, and the picture which clearly emerges from the oral evidence in cross examination of Ram Prasad Jha himself as also the recitals in exhibits 1 and la is this that the parties orally agreed (not in writing) to refer all their disputes in this title appeal and the disputes between Asharfilal and Subelal to the arbitration of the five punches, Ramakant Jha and others. The Punches heard the parties, locked into their evidence, either oral and documentary and then announced their oral award the terms of which were as are said to be the terms of the alleged compromise. The parties, in pursuance of the alleged award, executed these two kebalas on 22-6-1951, and the other, documents relating to the dis-pute between Asharfilal and Subelal, but the matter did not take the form of a compromise between the parties in the sense that the parties agreed with their free consent to adopt the terms as a part of their agreement or compromise. The matter remained in the realm of a decision by the Punches, or of the so-called award. The reason for taking this view is that in the two sale deeds it is clearly recited that the parties agreed to refer their disputes to the punches and they took the Ijhar of the parties, looked to their documentary evidence, heard the Ijhar of their witnesses & then announced their decision in the from of their award. The parties obeyed to the order and in pursuance to that they executed their respective Kebalas. The evidence of Ram Prasad Jha in cross examination is "The talk of compromise took place in June 1951 in presence of our well wishers. The talk took place at the Kechari of Anirudh Babu in presence of Anirudh Babu, Jadu Babu and Ram Rai. There was no talk there that pleaders should be consulted about how the compromise was to be effected. We did not select any punch. The punches themselves intervened as our well wishers. Then says, both the parties went to the punches together and requested them to compromise and settle the disputes between us. We agreed to abide by their suggestions but we did not give them anything in writing to that effect. They did not demand anything to that effect in writing. They were aware that litigations had been pending between us for 10 years. They did not suggest that the dispute should be referred to them by court, I do not remember if any date had been fixed by the punches for hearing other, parties or their witnesses, They did not record our statement. I do not know if they wrote out anything on hearing the state-ments of our respective cases. They examined our documents. They had gone to the spot and inspected the disputed land but did not prepare any map. We did not examine any witness. After hearing us they "expressed their decision. Their decision was embodied in the Kebala executed by both the parties. I know only how to sign my name. I am sufficiently literate." It is no doubt true that the evidence of some of the punches before the learned Subordinate Judge in the proceeding under Order 23. Rule 3, Code of Civil Procedure, was that they had brought about this compromise between the parties and in pursu-ance or this compromise the parties proceeded to execute the kebalas, but I am not prepared to accept this evidence in view of the evidence of Ram Prasad Jha himself, as just quoted and in view of the clear recitals in the two Kebalas exhi-bits 1 and la. The learned advocate for the appellant could not seriously assail the finding of the learned Subordinate Judge that the kebala exhibit la had been executed by Asharifilal and on a perusal of the evidence in this case, I am satisfied that the finding is correct. By mere execution of the kebala (which of course was not registered) it cannot be held that Asharfi Lall agreed to the terms and entered into the alleged compromise to adjust his disputes with Ram Prasad in the title appeal. I, therefore, hold that there was no compromise between the parties as alleged there was an oral reference to Punches outside the Court and an oral award by them. This takes me to the second question as to whether such an alleged award can be ordered to be recorded between the parties in view of the provisions of Section 47 of the INdian Arbitration Act. IN my opinion, there are two difficulties in taking recourse to the proviso to Section 47. Firstly, it was not an arbitration award at all as there was no arbi-tration agreement in writing between the partial as required by the Arbitration Act, nor was there any written award by the punches. Therefore, it was not an "arbitration award" within the meaning of the proviso to Section 47 of the Act. The second difficulty is that according to the view of this court vide Zeeuddin v. Abdur Rafique AIR 1952 Pat 66 and Raghunandan Rai v. Sukhlal Rai, AIR 1952 Pat 258 the arbitration award otherwise obtained can be taken into consideration as a compromise or adjudgment of a suit between the parties, provided the parties consent to its being so treated and considered after the making of the award. If the parities do not consent, the award by itself cannot be ordered to be recorded as a compromise or adjustment of a suit between the parties. IN my opinion, therefore the order passed by the learned Subordinate Judge recording the compromise in the tide appeal, and consequently, dismissing the appeal o Ram Prasad Jha against the other respondents is bad and must be set aside. I therefore, allow this appeal, set aside the order recording the compromise and direct that the title appeal be restored to its original file and be disposed of in accordance with law.