1. This is a second appeal by the plaintiffs whose suit for possession has been dismissed by the two lower Courts. In the trial Court the plaintiffs and defendants on mo to an agreement on 9th August 1934 winch was embodied in the robkar of the Court (paper No. 70) that B. Madan Mohan Lal Mukhtar, should be appointed as referee ('Munhasar aleh'), that the case would be decided according to whatever statement he made and that that statement would to binding on the parties as an admission under Section 20, Evidence Act. The Court sent for B. Madan Mohan Lal and recorded his statement on 10th September 1934. He made a statement that the plaintiffs have no interest in the property in dispute and defendants have an interest in it and are in possession of it and the suit should be dismissed and parties should boar their own costs. On the same date, 10th September 1934, the Court passed an order dismissing the suit, parties to bear their own costs. An appeal was taken by the plaintiffs on the ground that B. Madan Mohan Lal was an arbitrator and therefore the period of ten days should have been allowed to the parties to take objections. This argument is based on the provisions of Para. 15 of Schedule 2, Civil P.C. and Article 158, Limitation Act. These provisions apply solely to the procedure of arbitration under Schedule 2. The only two grounds which have been taken in second appeal deal with this matter.
2. The point as to whether the reference was one to arbitration or one to a referee is concluded by the Full Bench decision in Mt. Akbarir Begam v. Rahmat Husain : AIR1933All861 . There was in that case a precisely similar agreement between the parties that their case should be decided by the statement of defendant 1. It was held by the two Judges of the Bench before whom the case originally came that this was not a case of reference to arbitration and this view was taken by the three learned Judges who composed the Full Bench. The difference is explained in detail on page 1155 by Sir Shah Sulaiman and he states:
In concurrence with the opinions of the learned. Judges who have made this reference I hold that an agreement to abide by the statement o a particular witness is in substance not a reference to arbitration.
3. The Full Bench held that the case came under Section 20, Evidence Act, and that the statement of the arbitrator was an admission by a person to whom the parties had referred and accordingly under Section 31 the admission might operate as an estoppel and that in that particular case the admission would operate as an estoppel. For these reasons no question of Para. 15 of Schedule 2 or Article 158, Limitation Act, can arise in connexion with such a reference under Section 20, Evidence Act. The procedure of the trial Court therefore was perfectly correct. We dismiss this second appeal with costs.