BANWARI JOGI Vs. JAMNA KASAUDHAN

JUDGEMENT

(1.) This is an appeal from an order of the District Judge remanding the case to the first Court for a trial de novo. The suit was one for a declaration of title and for possession of land by demolition of certain constructions on it. One of the points in dispute was whether the constructions were old or new. On the 22nd of March, 1928, a joint application signed by the Pleaders for both the parties was filed before the learned Munsif in which they agreed that the Court should personally inspect the locality, and might ask the parties to produce any further evidence which it considered necessary, and then record a judgment which should be acceptable to both the parties in every way. After this agreement the Court; made the local inspection and took such steps as it considered necessary and then pronounced its judgments. In the body of the judgment the learned Munsif has referred to this agreement and has stated that the parties undertook to abide by the decision of the Court if it was made after a local inspection and that it was in consequence of this undertaking that he inspected the locality in the presence of the parties and their Pleaders.

(2.) The suit was dismissed by the first Court and the plaintiffs appealed. The learned Judge on appeal has come to the conclusion that the agreement referred to above amounted to a compromise between the parties and not a reference to arbitration and that without an express leave granted by the Court the compromise was not binding on the minor plaintif Section He has accordingly sent the case back for trial on the merits.

(3.) The defendant has come up in appeal before us and challenges the findings of the District Judge. On the first question we have no doubt that the agreement cannot possibly be treated as a reference to arbitration. The procedure laid down for such a reference is to be found in Sen. II of the Civil P. C. which contemplates an entirely different kind of procedure from what the parties had in mind in this case. It cannot be imagined that the parties in this case intended that that procedure should be followed. In similar instances it has been held by this High Court in several cases an agreement of this kind amounts to a compromise between the parties. We may simply refer to the cases of Sita Ram V/s. Peare Civ. and Uadan Mohan Gargh V/s. Munna Lal .