JADUNATH CHOWDHRY Vs. KAILAS CHANDRA BHATTACHARJEE

JUDGEMENT

(1.) The three plaintiffs in this case, who are respondents before us, have brought this suit for the establishment of their title to the lands in suit and also for recovery of possession. By way of answer to this suit, it was pleaded that it was barred by limitation, and that as against plaintiffs Nos. 1 and 3, an answer was furnished by an award made in a reference to which plaintiffs Nos. 1 and 3 and the defendants were parties. The plea of limitation did not succeed in either Court, nor has it been pressed on us in appeal. The plea on the award did not commend itself to either of the lower Courts or to the learned Judge before whom this case came in the first instance on second appeal. It appeared to the learned Judge, as also to the lower Appellate Court, that it was a fatal objection to the validity of this award that all the present plaintiffs were not parties to it, and an argument based on the supposed analogy of Section 506 of the old Civil Procedure Code prevailed. We think that this argument cannot succeed seeing that the award was on a private reference, and we hold that it is binding as between plaintiffs Nos. 1 and 3 and defendant No. 1 with whom alone we are now concerned.

(2.) It is difficult to formulate any ground on which the award would not be good and valid as between those parties, and none has been suggested before us in argument. Then we have to consider whether there is any force in the suggestion that the award is ineffective, inasmuch as it was not stamped or registered. So far as the want of stamp is concerned, that is an objection that cannot be taken for the first time in second appeal, while so far as the want of registration is concerned, it is clear that the provisions of the Registration Act do not apply by reason of the value of the property. In this view, it becomes unnecessary to consider whether, apart from the fact that the property is less than Rs. 100 in value, the Registration Act would apply to this particular award. The result is, that the defendant's appeal must succeed as against plaintiffs Nos. 1 and 3. And, the decree we now pass is that, as against plaintiffs Nos. 1 and 3 the suit be dismissed but as against plaintiff No. 2 it be remanded to the lower Court in order that it may be determined what precisely is the interest of plaintiff No. 2 in the property in question. To the extent of that interest, plaintiff No. 2 will be entitled to a decree against defendant No. 1.

(3.) This determination will in no way affect the decree as between the plaintiffs and the defendants who have not appealed.