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Achiran Bibi W/O Abbas Ali Mallik and ors. Vs. Babur Ali Sapui Alias Baburali Sipai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal156
AppellantAchiran Bibi W/O Abbas Ali Mallik and ors.
RespondentBabur Ali Sapui Alias Baburali Sipai
Cases ReferredGhulam Khan v. Muhammad Hassan
Excerpt:
- .....by the plaintiff. the pro forma defendants 10 to 14 were the common landlords of both the plots. defendants 1 to 6 apparently deny that defendants 7 to 9 have any interest in plot no. 2557 defendants 7 to 9 however were impleaded on an allegation that they are co-sharers with defendants 1 to 6. they filed a written statement in which they alleged that they are cosharers but they denied that they themselves were personally liable for the encroachment, if any. it is, thus quite plain that all the parties to the suit are interested in the boundary line between plot no. 2557 and the plaintiff's plot. it was therefore necessary for them all to join before the case could be brought within the terms of schedule 2, para. 1. 4. the only question therefore that remains is whether i would.....
Judgment:

Henderson, J.

1. This appeal is by the principal defendants 1 to 6. There was a reference to arbitration while Schedule 2, Civil P.C., was still in force. The Munsif made a decree in accordance with the award. The plaintiff appealed. The Subordinate Judge set aside the order of the Munsif on the ground that the reference to arbitration was without jurisdiction. The contention of the appellant is that the appeal in the lower appellate Court was incompetent. There has been a great divergence of judicial opinion on the question whether in such cases a second appeal lies. Until the matter is settled one way or the other by a Full Bench, parties will be compelled to file both an appeal and an application in revision in every case. That has been done in the present case. My own view is, as I have stated previously on many occasions that no appeal lies. I find it difficult to persuade myself that a second appeal can be created by something done in a District Court without jurisdiction of any kind. One of the main reasons for the enactment of Section 115 of the Code is to deal with matters of that kind. Parties are entitled to ask the Court to interfere under Section 115 and set aside an order made by an appellate Court without jurisdiction.

2. The question therefore is whether the appeal in the lower appellate Court was competent. Unfortunately on this point too there has been a conflict of judicial opinion. The main objection to the decree of the Munsif was that the reference to arbitration was without jurisdiction. The conflicting views are illustrated in the judgments given by Mukerji and Mitter JJ. in Golenur Bibi v. Abdus Samad : AIR1931Cal211 . In view of the opinions of the other High Courts, the weight of authority is certainly in favour of the opinion expressed by Mukherji J. It appears to me to be set at rest by the decision of the Privy Council in Ghulam Khan v. Muhammad Hassan ('02) 29 Cal. 167 : 29 I.A. 51. That decision dealt with the provisions of Section 522 of the Code before amendment, which provided that no appeal shall lie from any such decree except in so far as the decree is in excess of or not in accordance with the award. Their Lordships pointed out that it would be doing violence to the plain language and the obvious intention of the Code to hold that an appeal lies on other grounds. These observations apply with equal force to the provisions of Schedule 2, para. 16. Now it is not enough for the petitioners in revision to show merely that the order of the lower appellate Court was made without jurisdiction. They must go further and show that the plaintiff would have failed if, instead of filing an incompetent appeal, he had applied to this Court in revision under Section 115.

3. I am quite satisfied that the learned Judge was right when he said that the reference to arbitration was invalid. It was made on the application of the plaintiff and defendants 1 to 6. The suit is in connexion with a boundary dispute. The plaintiff has purchased a certain plot south of Dag NO. 2557 in execution of a decree. His case is that the principal defendants are in actual possession of plot No. 2557 and have encroachment on his plot. The point that had to be settled was the boundary between Dag No. 2557 and the plot purchased by the plaintiff. The pro forma defendants 10 to 14 were the common landlords of both the plots. Defendants 1 to 6 apparently deny that defendants 7 to 9 have any interest in plot No. 2557 Defendants 7 to 9 however were impleaded on an allegation that they are co-sharers with defendants 1 to 6. They filed a written statement in which they alleged that they are cosharers but they denied that they themselves were personally liable for the encroachment, if any. It is, thus quite plain that all the parties to the suit are interested in the boundary line between plot NO. 2557 and the plaintiff's plot. It was therefore necessary for them all to join before the case could be brought within the terms of Schedule 2, para. 1.

4. The only question therefore that remains is whether I would have been prepared to interfere under Section 115 at the request of the plaintiff. I should certainly have interfered on an application by any of defendants 7 to 14. Mr. Bhattacharjee, however, pointed out that the plaintiff was a party to the reference to arbitration, that he took part in it and that he lost it and is now trying to' back out of it. In these circumstances I should not have been prepared to help him in revision. The appeal is dismissed as incompetent. In revision I set aside the order of the Subordinate Judge and restore that of the Munsif. I make no order as to costs (either in appeal or in revision) in this Court or in the lower appellate Court.


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