Walter Salis Schwabe, K.C., C.J.
1. This case is of considerable importance because circumstances of a similar nature have been before the Courts on several occasions and they have given rise to some considerable divergence of opinion.
2. The facts are that a suit came before the District Munsif as to whether the defendants had unlawfully diverted some water from the land of the plaintiff and so injured his land. When the case came before the District Munsif certain plans and documents were put before him and then the plaintiff and some of the defendants agreed in writing and the pleader acting for the other defendants, I have no doubt, agreed to what appeared in writing that the learned Munsif should himself go and inspect the land. The terms of the agreement signed by the plaintiff and two of the defendants are contained in an affidavit which ran as follows:--'We agree to the matter being decided according to the opinion which the Court might entertain on the aforesaid local inspection without going into any further evidence. 'The plaintiff endorsed on that affidavit an agreement to abide by any decision which the Court may arrive at after making a local inspection of the land and perusing certain plans and other records. The learned Munsif agreed to act on that agreement and went to the place some seven miles off two days later. The case was again before the Court when some documents were put in according to the plaintiff's statement and the judgment was given and a decree passed in the ordinary form of a decree.
3. The issues in the suit were issues of fact and issues of law. The learned Munsif found the facts in a certain way and in view of those facts gave a finding. In due course there was an appeal to the Subordinate Judge and he expressed his view that the learned Munsif was wrong in law. He held that no appeal lay to him by reason of the agreement referred to above. He purported to follow a case in Chengalroya Chetty v. Raghava Ramanuja Doss (1918) 37 M.L.J. 100 where a very similar agreement was held to result in the decree being not appealable on the ground, as I understand it, that the decree was not a decree of a Judge as such but as an arbitrator. The law as I understand it is this. Where parties agree to a Court proceeding without jurisdiction extra airsum curiae as it has been put, the parties cannot appeal from the decision of the Court. The parties in fact may agree not to appeal from the decision of the Court and such agreement will be inferred from the fact that they agreed to the Court taking a course which is altogether outside the ordinary powers of the Court. But this does not apply to mere deviations from procedure if the Court has jurisdiction over the subject unless there is an attempt to give the Court a jurisdiction it does not possess, so that a Court of Appeal cannot properly review the decision. Such deviations do not deprive either of the parties of the right of appeal. Pisani v. Attorney General for Gibraller L. R. 5 P. C. 516. See also the decision of the House of Lords in Burgess v. Morton (1896) A.C. 136. So in these cases the question to be decided is whether an agreement between the parties does result in the Court assuming jurisdiction which otherwise it would not have or involves the Court in going so outside its ordinary course of procedure that it is impossible for the appellate Court properly to review its decision.
4. Further, the giving up of a right of appeal is giving up a very important right possessed by all litigants and in my judgment such right of appeal can only be given up by a clear agreement. It may be that an agreement is in such terms that the Court will be driven to imply a term that the right of appeal was given up but a Court would not imply such a term unless it was driven to do so.
5. Turning to the agreement in this case 1. can find nothing in it to show an intention to give up a right of appeal. I think it merely means that the parties agreed to the evidence being taken in an irregular way or in an unusual way, viz.,. by the Munsif going to the place and seeing for himself what had happened and what was happening and not relying on what witnesses in Court told him had happened or was happening and the parties agreed to the case being decided in that way and to abide by the decision. If an appeal had been attempted on the ground that the learned Munsif took a wrong view of the facts, that his eyes have deceived him or that the procedure of dispensing with the evidence was irregular I can well understand the argument that the parties had agreed not to take any such point, and indeed I think that would be right. But, I can find nothing in the words used to indicate that the parties intended to give up all rights of appeal on questions of law which might arise or did arise in the case. I do not think it is right to say that, even though there was an agreement of the kind indicated, the Court becomes an arbitrator, and in my judgment in order to make a Court arbitrator, there must be a clear agreement to that effect, as indeed there was in Sayad Zain v. Kalabhai I. L. R.(1899) 23 Bom. 752 A Court acting extra cursum curiae has been said to act as quasi arbitrator which may be a convenient expression but it does not involve an application of the 2nd schedule to the Code of Civil Procedure which is applicable to arbitrators. Such agreement merely involves that the parties who agree expressly or impliedly not to appeal will not be allowed by the Court to appeal. I do not think it is necessary to go in detail into the cases that have been cited but would observe that it would follow from what I have said that I do not agree with the reasoning in Nidamarthi Mukhandi v. Thammana Ramayya I. L. R.(1902) Mad. 76 and Chengalvoraya Chetty v. Raghava Ramanuja Doss (1918) 37 M. L. J. 100. It may be that the result of those decisions is correct. Rao Bahadur Raoji v. Govind (1897) Printed Judgments of the Bom. High Court 271 is a case where the agreement stated that the decision was to be final and conclusive. I do not think it is necessary to consider whether the mere inclusion of those words is sufficient, for in this case there are no words to that effect. In Jamnadas v. Gordhandas (1896) Printed Judgment of the Bombay High Court, 615 where the words were 'we are not going to produce evidence, and agree to the decision which the Court shall pass after inspection 'it was held, and I think rightly, that the Munsif did not thereby become an arbitrator and that an appeal lay from his decision. In Chengalroya Chetty v. Raghava Ramanuja Doss (1918) 37 M.L.J. 100 the terms of the agreement were 'We shall abide by any kind of decree passed by the Court after a personal inspection of the place in dispute '. It was held that the District Munsif acted thereafter as arbitrator and that he acted illegally and with material irregularity in accepting the position of an arbitrator as all the parties had not consented.
6. It follows from what I have said above that I do not agree with the finding that he acted as arbitrator nor do I agree that the agreement before the Court in that case amounted to an agreement that the Court should act extra cursum curiae.
7. This appeal must be allowed with costs and the matter must go back to be disposed of on the merits.
8. I agree. The respondent rests his case not on the footing that the District Munsif's decree was really an arbitration award but on the principle of estoppel. In order that there may be an estoppel prohibiting an appeal by either party there must be an agreement implicit or explicit not to appeal. 1 think the words of the plaintiff's and respondent's own undertakings, read together as a contract, are enough to dispel any such idea, and to show that what the parties agreed to was nothing more than that the finality of the District Munsif's decision by which they agreed to abide was limited to the point which the District Munsif, in the absence of other evidence, was required to settle by personal inspection, that is, the point of fact necessary for the decision of the first issue; and the agreement went no further. Now it is open to the parties in an ordinary suit tried by the ordinary procedure to dispense with evidence and it is open to the Judge on application by the parties to inspect the place, and what he sees on his inspection is evidence within the meaning of the Indian Evidence Act, on which he may decide issues in the suit, and this and no more is what I conceive the Original Court has in this case done. Hence I can see nothing in the agreement between the parties which puts the suit extra cursum curiae.
9. I agree therefore that no estoppel exists except on the point of fact decided by the Munsif by his inspection of the ground. As to whether on the facts he found he came to a wrong decision on the law, 1 cannot see how can there be any estoppel of the right of appeal. If there was no agreement not to appeal there cannot possibly be any question of the appellant intentionally permitting the respondents to believe that he had waived that right, and to act according to that belief. I therefore agree in the order proposed by the learned Chief Justice.