SIBNATH SAHA Vs. MOHESH CHANDRA SAHA

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration of a right of way. The suit was dismissed by the Munsif and decreed on appeal by the Subordinate Judge and the defendants have preferred a second appeal to this Court.

(2.) The plaintiff and the defendants were co-sharers in a homestead and buildings thereon. There was a suit in which the present defendants were the plaintiffs and this joint property was partitioned by arbitrators and the suit decreed in terms of the arbitrator s award. In the reference to the arbitration there is a paragraph (paragraph No. 12) which runs as follows: The passages leading from both houses should be kept intact by keeping them in ijmali in proportion to their respective sahams.

(3.) It is admitted that the pathway over which the right of way is now claimed, was in existence before the partition suit. But in making their award, the arbitrators, though they have reserved an area of a little less than 2 bighas as ijmali for roads, privy and tanks, did not include this path in the portion reserved.