SURAJ NARAIN CHAUBE Vs. BENI MADHO CHAUBE

JUDGEMENT

(1.) This is an application in revision by one out of four plaintiffs. The suit was for partition of joint family properties. There were five defendants and all except defendant 2 contested the suit. The main ground of defence was that a partition had already taken place and that the suit was therefore not maintainable. A number of issues were framed, but the only two with which we are concerned are Issues 7 and 12. These were as follows : Issue 7 : Has there been already a partition of the properties in Ballia district; if so, how will it affect the suit? Issue 12 : Did the parties separate before the institution of the suit; if not, how will it affect this suit?

(2.) On 23 September 1935 the parties and their counsel made a, statement before the Court in which they agreed that the Government Pleader, a gentleman named B. Brij Behari Lal, be appointed as referee (the word used was Munhasir- aleh ) and that the first portion of Issue 12 should be decided in accordance with whatever statement the aforesaid referee might make in Court after he had made enquiries, both open and secret. The referee was authorized to take oral evidence and also to inspect such documents as had been filed in Court. On 14 October 1935 a further statement was made on behalf of the parties to the effect that they would accept the referee's statement in respect of Issue 7 also. On that same date B. Brij Behari Lal made a statement in Court in pursuance of which the Court decided Issues 7 and 12 against the plaintiffs and proceeded to dismiss the suit.

(3.) The point which has been taken before us by learned Counsel for the plaintiff applicant is that the statement of 23 September 1935 was in effect an application for reference to arbitration and accordingly the procedure which is prescribed in Schedule 2, Civil P.C., ought to have been followed and ten days ought to have been allowed for objections after B. Brij Behari Lal had given his verbal award in Court. It is contended that B. Brij Behari Lal was in fact an arbitrator and not a referee, inasmuch as a referee can only make a statement from his own knowledge and is not competent to make an enquiry or to take evidence or examine documents. It is further pleaded that the provisions of Secs.8 to 11, Oaths Act, had no application.