SHEODAHIN CHAUDHURY Vs. DASRATH DUBEY

JUDGEMENT

(1.) This is an application in revision by defendants Nos. 1 and 2 against an order of the Munsif of Arrah allowing the plaintiff's objection to an award filed by an arbitrator in the suit and setting aside the award. It is necessary to set out the facts shortly. A holding consisting of 4 bighas odd and comprised in survey plots Nos. 287 and 401 originally belonged to one Baldeo Chaudh-ury. A rent suit was instituted against Baldeo Chaudhury and in execution of the decree passed 1 in the rent suit the holding was sold on January 8, 1914 and purchased by two persons Baldeo and Tribeni Singh. Defendant No. 3 is the descendants of Baldeo and defendant No. 4 is the son of Tribeni. In execution of a subsequent rent 5 decree obtained against defendant No. 3, presumably oh the allegation that defendant No. 4 had no interest in the holding 2 blghai odd kathas of the holding comprised in Plot No. 287 was sold on July 29, 1926 and purchased by defendant No. 1. Subsequently on September 19, 1927, defendant No. 3 sold the remaining portion of the holding comprised in plot No. 401 by a private sale to defendant No. 2, It thus appears that the entire holding passed to defendants Nos. 1 and 2, who are brothers, from defendant No. 3. Defendant No. 4 however who, as I have said, is the son of Tribeni, one of the purchasers in the sale of 1914, purported to sell his one half Hare in the holding acquired by the purchase of the year 1914 to the plaintiffs under a deed of sale dated July 30, 1927. Thereupon a dispute arose as regards the possession of the half share of the holding purchased by the plaintiff between him and defendant Nos. 1 and 2 and an order was made in a proceeding under Section 145, Criminal Procedure Code confirming the possession of defendants Nos. 1 and 2.

(2.) The plaintiff, then instituted the present suit on December 19, 1931, for a declaration of his title to half the holding and for recovery of possession. In this suit the two purchasers defendants Nos. 1 and 2, were described as the principal defendants and their vendor, defendant No. 3, and the plaintiff's vendor, defendant No. 4, were treated as pro forma defendants. The relief claimed was the possession of half the holding as against the principal defendants, and in the alternative, joint possession "along with the defendants." Defendants Nos. 1 and 2 filed a written statement in which they set out their title by purchase from defendant No. 3 and alleged that defendant No. 4 had no interest in the holding, and in fact in a proceeding m the year 1920 he had disclaimed all interest therein. Defendants Nos. 1 and 2 therefore claimed the entire holding and disputed the plaintiff's title to half of it. Defendants Nos. 3 and 4 never appeared in the suit and never contested it. It appears that the plaintiff and defendants Nos. 1 and 2 filed an application m Court on September 20, 1932, praying that the matter in difference between them may be referred to the arbitration of one Chandradip Chaudhury. The Court took up this application on September 22, 1932.As defendants Nos. 3 and 4 had not joined in the application for reference to arbitration it appears that some objection had been made by the office. The learned Munsif heard the parties upon this application. It was then stated on behalf of the plaintiff that no relief had been claimed against defendants Nos.3 and 4 and that they were merely pro forma defendants and that it was not necessary for them to join in the reference to arbitration. The Court accepted that statement and by its order of September 22, 1932, made the reference as prayed for.

(3.) The arbitrator filed his award on November 28,1932 and the plaintiff objected to the award. Various objections were taken as regards the misconduct of the arbitrator and as regards his having colluded with defendants Nos. 1 and 2 and his having some relationship with them; but all these objections were overruled by the Munsif and he held that there was no substance in those objections. The learned Munsif however upheld the objection of the plaintiff that the reference to arbitration was bad in law inasmuch as defendants Nos. 3 and 4 had not joined in the application for reference.