MULK RAJ Vs. HEM RAJ

JUDGEMENT

(1.) ONE , Lala Mulk Raj, hereinafter called the plaintiff, filed a civil suit against Shri Bakshi Ram and Hem Raj, hereinafter called the defendants, in the Court of Munsiff Jammu. The plaintiffs case was that he owns a two -storeyed house at Pacca Danga, Jammu. adjoining an open space on its northern and eastern sides belonging to defendant No. 1 and that he had acquired a right of easement in respect of two smoke chimneys in his house, one in the ground floor and the other in the first floor and so also in regard to the Jharnas (holes) in the parapet walls of the upper story which defendant No. 1 had no right to close, as lie proposed to do, by the construction of the house on the open space at the instance of defendant No. 2. His further ease was defendant No. 1 had also no right to use the walls in his house adjoining the open space in the proposed construction inasmuch as these walls were constructed by him at his own expense. In this context he prayed for the grant of a decree for permanent injunction restraining the defendants from using the walls, as aforesaid, as also from closing the smoke chimneys and Jharnas in his house. The defendants denied that the walls, belonged to the plaintiff exclusively and pleaded in the alternative that according to the custom prevailing in Jammu -city a common wall could be used by the owners of the adjoining houses in any manner. They further pleaded that the plaintiff had not acquired any right of cment. The trial Court raised the following issues: - (1) Whether the smoke -chimneys and the Jharnas in dispute have been existing for more than twenty years, and, therefore, the plaintiff has acquired a right of easement in respect of their use which right is still subsisting? "O. P. P. (2) Whether the walls in dispute are the exclusive property of the plaintiff? O. P. P. (3) In case issue No. 2 is not proved, whether the said walls are the common walls of the parties, and whether, according to the custom prevalent in Jammu, the defendants are entitled to construct on them? O. P. D.

(2.) DURING the progress of the suit the parties agreed to refer the dispute to the arbitration of Sarva Shri Radha Krishen Anand, Om Parkash Gupta and Krishen Lal. Accordingly they filed the agreement EXPW. 1 in the trial Court on June 6, 1962. The trial Court recorded the statements of the parties in support of the agreement and then referred the matter to the arbitration of the said arbitrators. The arbitrators made their award on 26 -9 -1962 and filed it in the trial Court on the following day. The plaintiff challenged the award on various grounds. The objections found favour with the trial Court and the Court set aside the award by its order dated 31 -12 -1962. On appeal the learned Additional District Judge Jammu held that the only flaw which could be found in the award was that the arbitrators had left issue No. 1 undetermined and that the trial Court should, therefore, have more appropriately remitted the award to the arbitrators under section 16 (1) of the Arbitration Act for decision on this issue. Accordingly he set aside the order of the trial Court and remanded the case to the trial Court for fresh directions. By its order dated 16 -7 -1963 the trial Court referred the matter to the arbitrators with the direction that they should give their decision on issue No. 1. The arbitrators found the issue in favour of the plaintiff and filed their award in the Court on 18 -1 -1964. The award was, inter, alia, based upon the previous statement of one of the arbitrators namely, Om Parkash, given by him in a different case in the Court of City Judge Jammu on 7 -9 -1963, who, therefore declined to associate himself with the award and made an endorsement to that effect on the award itself. The defendants filed objections and challenged the award. The objections were treated as an application under section 33 of the Arbitration Act and the parties were directed to produce their evidence. At this stage, on an application made by the plaintiff, the case was transferred from the Court of Munsiff, Jammu, to the file of City Judge, Jammu. One of the objections taken by the defendants was that the award (i.e. subsequent award) was invalid and unenforceable because one of the arbitrators namely, Om Parkash, had not taken part in the proceedings resulting in the award. This objection found favour with the learned City Judge who held that the award dated 18 -1 -1964 was invalid and unenforceable and that issue No. 1 was still open and called upon the parties to produce their evidence with regard to the same. On appeal the learned District Judge Jammu recorded a finding to the contrary and remanded the case for consideration of the remaining objections taken by the defendants. The order was confirmed on revision by this Court by its judgment dated 3 -3 -1967. The remaining objections taken by the defendants, in substance, were that the award dated 18 -1 -1964 was procured improperly and it was vitiated because it was based on the previous statement of one of the arbitrators. By its judgment dated 2 -12 -1968 the learned City Judge held that issue Nos. 2 and 3 were concluded by the previous award dated 26 -9 -1962 and after negativing the remaining objections, as aforesaid, to the award dated 18 -1 -1964 confirmed both the awards and made them the rule of the Court. The order was upset on appeal by the learned Additional District Judge, Jammu, who set aside both the awards dated 26 -9 -1962 and 18 -1 -1964; superseded -the order of reference and directed that the suit be tried on its merits by the Court below. Hence this revision by the plaintiff.

(3.) THE award dated 18 -1 -1964 is mainly founded on the statement of one of the arbitrators namely, Om Parkash, which was given by him in the Court of City Judge, Jammu, in case Mulk Raj Vs. Lala Kapoor Chand (Civil Suit No. 126 of 1963) on 7 -9 -1963 in which he stated that the present house was built by the plaintiff after demolishing the old house and that the chimneys and Jharnas in dispute were located in the new house at the places at which they existed in the old House. This is clear from the statement of Krishen Lal another arbitrator, who was examined in the trial Court when he says: "It is correct to say that with a view to maintaining the prestige of Shri Om Parkash, one of the arbitrators we gave an award different from the one given by us earlier on 26 -9 -1962 because Om Parkash had made a statement in a different case which had a bearing on the present award." He makes it more clear in the later part of his statement when he says: "From the statement of Om Parkash we learnt that the chimneys and Jharnas existed for more than twenty years and so the question of his prestige arose." His repeated use of the word prestige indicates nothing more than that the arbitrators placed implicit reliance on the previous statement of Om Parkash.