BHAWANI PRASAD Vs. JOTI PRASAD

JUDGEMENT

(1.) This appeal raises a nice point of law, but a point which, in my opinion, is not at all difficult to decide.

(2.) The litigants are brothers. It appears that the good sense that once prevailed with them has left them, and they have been fighting for a small bit of land which is of great use to the defendant and of little use to the plaintiff.

(3.) A partition of the village was pending in the revenue Court to which the brothers were parties. They referred the partition to the arbitration of (SIC)Daljit Singh. Before Daljit Singh (SIC)brothers made an application, a copy of which is on the record as 48C. In this application they said that the arbitrator was to divide the mahal, both cultivatable lands and lands forming the village site, and that in making this division the arbitrator might disregard the fact of possession on the part of any one of the two brothers. Being armed with this application, the arbitrator proceeded to make a division of the lands both cultivatable and forming the village site. He in the award made by him mentioned the application that had been made to him and read it as authorizing him to distribute lands in the village site irrespective of the provision of Section 118, Land Revenue Act. S 118 lays down that when, in making a partition it is necessary to include in the portion allotted to one cosharer the land occupied by a dwelling house or other building in the possession of another cosharer, the latter shall be allowed to retain it with the building thereon on condition of his paying for it a reasonable ground rent. The arbitrator stated in the award that he was authorized by the brothers to make an award of the abadi land without fixing rent, and that each party had agreed to give up possession over all lands which might be allotted to the other party by the arbitrator. Having said so, the arbitrator made a division by means of a coloured plant. In the course of this partition, he gave the major portion of what was the defendant's courtyard to the share of the plaintiff. This is the subject-matter of the dispute in the present case. Believing that the arbitrator had given to the plaintiff the courtyard of the defendants house the plaintiff launched this suit out of which this appeal has arisen for recovery of possession. The Court of first instance dismissed the suit, but the learned Judge of the lower appellate Court has decreed it. He held that the parties had waived the rights conferred on them and on the Court by Section 118, Land Revenue Act, and that in any case they were bound by the arbitration award. He pointed out that the defendants had contested the validity of the award in the revenue Court and was unsuccessful.