MOHAMMAD AHMED RASHID Vs. MOHAMMAD SHAFI

JUDGEMENT

(1.) The petitioners seek leave to appeal against the judgment and order dated 11.08.2002 passed in Civil Revision No. 1670 of 1995 making the rule absolute setting aside the judgment and decree dated 26.2.1995 of the Subordinate Judge, First Court, Cox's Bazar in Other Appeal No. 62 of 1991 reversing those dated 28.4.1991 by the Senior Assistant Judge, Chakaria in Other Suit No. 42 of 1987 filed under section 14(2) of the Arbitration Act. 1940.

(2.) The facts of the case, in brief, are that respondent No.1 as plaintiff filed Other Class Suit No.42 of 1987 under section 14(2) of the Arbitration Act, 1940 in the Court of Assistant Judge, Chakaria under District Cox's Bazar stating, inter-alia, that, the land described in plaint belonged to Nur Ahmed and others. Accordingly P.R.R. and M.R.R. Khatians have been prepared and published. Nur Ahmed and others were in need of money and sold the same to the plaintiff who has possessed the same by paying rent. The petitioner Nos.1-3 have no right, title, interest and possession in the suit land. That the suit land is far from the house of plaintiff and nearer to the house of petitioner Nos.1-3 also with ill motive claimed right, title and interest in the suit land and also threatened with dispossession. As a result, there was a dispute between the parties, and at the instance of local leaders both parties agreed to settle the dispute through arbitration. Proforma respondent Nos. 2-7 were appointed arbitrator in pursuance of a deed of Ekrar Nama dated 29.4.1985. Respondent Nos. 2-7 then served notice upon both parties who duly appeared and submitted their written statements and documents in support of their respective claims. Both parties also made their oral submission. Respondent Nos. 2-7 as Arbitrator after examining witnesses and considering necessary papers and documents passed the award on 30.8.1986. The award was executed and registered and thereafter respondent No. 1 requested the Arbitrators to send the award along with necessary papers and documents to the Court for making the same a rule of the Court. Arbitrators failed and then plaintiff-respondent No. 1 filed the present suit. Thereafter, respondent No. 1 on 4.8.1988 filed an application before the Court of Assistant under section 17 of the Arbitration Act for passing decree in terms of award dated 30.8.1986. Proforma -respondent Nos. 2-7 appeared before the Court and filed joint written statement admitting the award. Their contention is that they have been appointed as Arbitrator by both parties and in pursuance of an Ekrar-nama dated 29.4.1985 they served notice upon both parties who duly appeared and submitted written statements and other necessary papers and documents in support of their respective claim. They have also adduced evidence and perusing the necessary papers they passed the award and executed and registered the same on 30.8.1986. They further contended that they have fairly and impartially conducted the arbitration and the arbitrators have not misconducted themselves.

(3.) The petitioner Nos.1-3 as defendant contested the suit by filing written statement stating, inter-alia, that the suit is not maintainable as there was no cause of action. That Nur Ahmed and others did not sell the suit land to the respondent No.1 and that they did not threaten respondent with dispossession from the, suit land. Their contention is that they have got right, title, interest and possession in the suit land and that they never appointed proforma respondent Nos.4-9 as arbitrator on 29.4.1985. There had been no arbitration proceeding in the suit land and that they did never appear before the arbitration proceeding nor submitted any statement or document and the Arbitrators did not serve any notice and also did not pass any award.