RAJ CHANDRA MANDAL Vs. RAGHUNATH DAFADAR

JUDGEMENT

(1.) THIS is an appeal from a decision of the learned Additional District Judge of the 24 Pergunnahs, dated the 6th January 1914, modifying the decision of the Additional Munsif of Basirhat. The plaintiffs brought the suit for possession of two plots of land, each measuring about 7 cottas. One of these two plots, it is alleged, has been acquired by purchase in execution of a mortgage decree and the other plot has been acquired by a private sale from the defendant No. 5. The only question in this case is: "Had the defendant No. 5 a title to the property that could be passed to the plaintiffs? " The Primary Court decreed the plaintiffs suit in full. The learned Judge in the lower Appellate Court has reversed the decision of the Primary Court on appeal with regard to the plot acquired by private purchase by the plaintiffs from the defendant No. 5. The case has been argued With great ability by Mr. Mazumdar on behalf of the plaintiffs-appellants; but I am not satisfied that, on the materials on the record, the decision of the learned Judge of the lower Appellate Court is wrong. It appears that the defendant No. 5 was originally a co-sharer in the jote. The jote itself was brought to sale in execution of a rent decree and purchased by the defendant No. 1. The predecessor of the defendant No. 5 then made an application to have the sale set aside; but he died before the application was disposed of and that application appears to have been abandoned. Subsequently, the other co-sharers instituted proceedings for the same purpose and an agreement Was come to between those other co-sharers and the defendant No. 1, by which the matter in dispute was referred to the arbitration of a particular named arbitrator. The arbitrator made an award by which he directed that the applicants, that is the other co- sharers, should pay a certain sum in cash to the defendant No, 1 within twenty days of the date of the award to have the sale cancelled. The plaintiffs claim to have the benefit of that award and of the order passed on the award being filed in Court. I am not satisfied that the plaintiffs are entitled to the benefit of the award. I think the ordinary Rule is to apply to an award just as much as to a contract. But whether that is so or not, the plaintiffs must prove before they can get the benefit of the award that the condition which the arbitrator stipulated had been complied with, and the condition was that the payment should be made within twenty days. There is not a word to be found in the judgment of either of the Courts below that the payment was made within twenty days, nor is it admitted in the defence that any such payment was made. It was clearly the duty of the plaintiffs, if they meant to claim the benefit of the award, to show that the condition imposed by the arbitrator had been strictly complied with. Then the learned Judge in the lower Appellate Court says that the subsequent conduct is the only evidence as to what was done under the terms of the award; and the subsequent conduct shows that the sale had not been set aside in toto, because the evidence that we have got on the record led the learned Judge of the lower Appellate Court to the conclusion that the defendant No. 1, at some time in the year 1910, was in possession of the share of the defendant No. 5, The learned Judge found that, in that view at any rate, the whole sale could not have been set aside. Whether the condition in the award was strictly complied with or whether there Ms a future agreement arrived at between the defendants, the evidence shows that the whole sale was not set aside because the defendant No. 1 continued to be in possession of the share of the defendant No. 5. I think on the facts that the plaintiffs could not satisfy the Court that they were entitled to the benefit of this award and that the evidence shows that the defendant No. 1 continued to be in possession of the share of the defendant No. 5. In that view, the judgment of the learned Additional District Judge cannot, in my opinion, be disturbed. The appeal is, therefore, dismissed with costs. Newbould, J.

(2.) I agree.