1. This is an appeal by the defendant in a suit by the plaintiff based on an award which was made a decree of Court for declaration of title and for possession of certain lands set put in Schedule Kha to the plaint. The plaintiff is owner of lands in Touzi No. 197. The owner of Touzi No. 13 is the defendant-appellant. Schedule Ka to the plaint contains the joint and undivided lands of the two touzis of which the parties were in possession. Disputes having arisen as regards these lands in Schedule Ka, the matter was referred to the arbitration of the Magistrate of Malda. He, on the 10th June 1905, made an award, allotting to the plaintiff the lands 1-5 and half of No. 14 which are set out in Schedule Kha, and lands 6-13 and half of No. 14 set out in Schedule Ga were given to the defendant. The award was made a decree of Court on the 17th March 1906.
2. The plaint alleges, that the plaintiff got possession of properties Nos. 1, 5, 6 in Schedule Ka but not of lands appertaining to Mouzahs Nos. 2, 3, 4, as set out in Schedules Gha, Una and Cha of the plaint. The cause of action is said to have arisen on the 17th July 1905, as the award directed that the parties would collect rents from that date. The points of defence taken in the suit and before us on appeal are as follows:
It is said-
(1) that some of the lands in dispute are not part of the Mouzahs No. 13 or No. 197 and are not covered by the award, but belong to other Mouzahs such as Mouzahs Nos. 33, 381-383 to which the plaintiff has no title, (2) that other portions of the land in suit belong to Mouzahs allotted to the defendant by the award, (3) that portion of Schedule Cha belongs to Mouzah Kadabona within Tilbora, but which was not part of the land in dispute at the time of arbitration, (4) that the award having been made a decree of Court, no separate suit will lie on the same cause of action and that the remedy, if any, of the plaintiff, was by execution of the decree if not barred, (5) that the suit is barred by limitation, (6) that the suit is defective for want of a party, (7) and lastly, it is said that the findings of the Judge are based on a defective local investigation.
3. The first point in effect states that, as regards the lands covered by it, there has been no arbitration and no award and the plaintiff's title is not established thereto. It is argued for the appellant that all that was referred to decision was the question, what Mouzahs in Schedule Ka belonged to Estate No. 13, and what belonged to Estate No. 197, that is, what belonged to each party as appertaining to their respective Estates Nos. 197 and 13. If there were (as alleged) lands belonging to other estates, this was, it is said, not decided. On the other hand, the award, it is said, proceeds on the assumption that the lands in the Mouzahs in dispute belonged either to Estate No. 197 or No. 13, and the only question was to which of the estates the Mouzahs, set out in Schedule Ka, belonged. The award when reciting the dispute between the parties makes no reference to this question, No other touzis are mentioned except Nos. 13 and 197. It is difficult to suppose that, if the contention now put forward had existed, it was not raised before the arbitrator. Therefore, we agree with the learned Judge in holding that this contention fails.
4. (2) and (3) are questions of fact which have been decided against the appellant. Whether the finding on the question, whether the disputed lands appertain to the three Mouzahs in dispute of Schedule Kha as laid down in the Revenue Survey Maps was correct, depends on the decision which should be given on the 7th ground of argument relating to the Amin's local investigation.
5. On the fourth ground of argument it is contended for the appellant that, once the matter is brought into Court, there is no difference between arbitrations in and independent of suit. The award became a decree and, whether such a decree be appealable or not, the award, when made a decree, became enforceable by execution. It may be that in some cases a judgment and decree may be sued on, but this, it is contended, is only so when there is no other remedy; but that this is not the case here where execution of the decree was available. For the respondent it is contended that we have not to do with a decree in the ordinary sense of the term; that, if it is a decree, it does not require execution, and lastly, that execution has been had and that there was a new cause of action by subsequent disposition. The appellant contends, and we think rightly, that this last point cannot be raised, as it was not an issue in the suit. The plaint alleges that the plaintiff did not get possession and not that possession was given and dispossession followed, and the claim is based on the the decree the cause of action having arisen on the 17th July 1905, the date mentioned in the award. There is no trace of this case in the pleadings or the judgment. There is, however, some evidence, which, it has been submitted to us, supports the view that possession was given in fact to the party according to the award and that the case is based on a cause of action arising subsequently. The defendant's Dewan or Chief Officer Harish Chandra Pandey says that both possession and the papers were given in the terms of the award. To the same effect is the evidence of the plaintiff's Tahsildar, Mia Jan Biswas. What has happened in this case is that the property in suit remained in the possession of the defendant after the award and has been in his hands for over twelve years without objection or claim. Then probably it was discovered that a claim might be laid to these lands as forming part of the Mouzahs allotted to the plaintiff under the award and this suit was instituted. Either the plaintiff knew or did not know that the lands belonged to him. If he knew, why was no action taken? This is unexplained. We must assume, then, that the plaintiff thought at the time of giving possession under the award that he had got what he was entitled to, and, therefore, took no action, until in 1917 he thought that a claim might be laid to lands which have been all along and are now in the possession of the defendant. This view harmonises both the statement in the plaint and the evidence in this suit that the plaintiff did not get possession of the lands in suit after the award and the statements in the evidence for the defendant that possession was given and papers exchanged. Possession of the lands in suit and the relative papers were with the defendant. Now the question is, were the lands in suit awarded to the plaintiff by the award or not. The plaintiff says, yes, and he has not got what the award and decree thereon gave him. If so, it was (the appellant contends) for Mm to execute the decree.
6. The question is whether a decree based on an award passed under Section 526 of the Civil Procedure Code, 1882, could be executed. We are of opinion that a decree under Section 526 has the same effect as regards execution as a decree under Section 522. Section 526 appears to have incorporated of Section 522, of the Code, of the words 'and such award shall then take effect as an award made under the pro-Visions of this Chapter.' It seems to provide that, after the Court makes an order that an award made in an arbitration without intervention of the Court be filed, it must proceed to give judgment according to the award and a decree shall follow upon the judgment so given and the provisions for the enforcement of the decree as laid down in Section 522 would apply. Section 526 of the Code refers to the filing and enforcement of the award. The award filed under Section 526 is in the same position as an award under Section 522. The question is covered by authority Sreenath Chatterjee v. Kylash Chunder Chatterjee 21 W.R. 248; Himutoollah v. Bibee Heerun 13 W.R. 62. The case of Himutoollah v. Bibee Heerun 13 W.R. 62 cited by the respondent, seems to be really, an authority against his contention. The respondent relied upon the words if it is a decree at all in the judgment of Phear, J. and contended that the learned. Judge doubted whether a decree passed under Section 526 was a decree at all. But that is not so, as in that case it did not appear that the award was ever filed and (as in this case) judgment passed according to its terms, and, therefore, the learned Judge was in doubt whether there was a valid decree at all which could be executed. On the other hand, he held that a decree made upon an award filed according to the provisions of Section 327 : (Act VIII of 1859) must stand precisely in the same position with regard to its execution as any other decree of Court. There were some verbal alterations in the corresponding Section 526 of the Civil Procedure Code of 1877 (Act X) which was reproduced in Section 526 of the Civil Procedure Code, 1882, but it seems to us that that did not effect any charge in the law. It has, no doubt, been held in several cases in the Madras High Court Palaniappa Chetti v. Rayappa Chetti 4 M.H.C.R. 119; Gopi Reddi v. Mahanandi Reddi 15 M. 99 : 1 M.L.J. 591 : 5 Ind. Dec. (N.S.) 418; Subbaraya Chetti v. Sadasiva Chetti 20 M. 490 : 7 Ind. Dec. (N.S.) 347 that a party to an arbitration without the intervention the Court is not bound to proceed under Section 522 of the Code but may bring a suit to enforce the award. But no authority has been cited in support of the proposition that the award having been ordered to be filed and (as here) judgment and decree having followed on it, any party may again bring a suit to enforce the award. We are of opinion that the appellant has made out his objection on this point and that the suit does not lie on the same cause of action but that the plaintiff's remedy, if not barred, was to execute the decree on the award which was given of him.
7. As regards the fifth ground of limitation, this arises in two ways. If the appellant is right on the point last dealt with, the question arises in the form that the plaintiff failed to execute the decree within three years. This point is established if, however, the argument as to execution were not made out, we do not think that there is substance in the objection. The award recites that prior thereto the parties were in the joint and undivided possession. It is said, however, that the parties were each holding as part of their Mouzahs lands belonging to the other, and, this was not a case of joint possession, as each party Realised rent from his own tenants. It may be that in such a case, arid if there had been no award, a question whether the claim was barred might have arisen. But here an award intervened and, if, as we think, the award proceeded on the assumption that the properties in suit were covered by either the Mouzah No. 197 or No. 13, limitation must be adjudged with reference to the award. In this case the suit is brought within 12 years of the date fixed for the carrying out of the award, viz., the 17th July 1905.
8. The 6th ground is based on the allegation that only 15 annas of P Itapur in Schedules A and C belong to the defendant and that the remaining anna belongs to one Kulsum Begam who is, therefore, a necessary party. The learned Judge has found, however, that there is no evidence worth the name that this lady had any possession of any share in these lands and the point has not been pressed before us on appeal.
9. The seventh ground touches the question of the nature of the local investigation.
10. It is urged on behalf of the appellant that the local investigation made by the Amin Haran Chandra Bagchi is defective and that there should be a remand for a fresh investigation. It is urged that the Amin has not shown the plots of the Chittas as directed by the Court, that he should have taken station No. 104 as the starting point, and that he should not have taken the points A., C, H, as tri-junction points, since he was not himself satisfied with the evidence on the question. It seems that, although in the opinion of the Amin there was a G.T.S. pillar, as he calls it, at station No. 104, the plaintiff alleged that it was a grave, he, therefore, asked the parties to adduce evidence No evidence was given by either side, and so the Amin could not act upon his own notion that it was a G.T.S. pillar. He, therefore, took the points A., C.H., although he was not quite satisfied with the evidence. He, however, finds that the points were correct by comparison with the situation of the ponds. We think that (as the Amin himself says) he could not do anything more than what he did under the circumstances. As regards the Amin not showing the plots of tiff? Chittas in his map, it seems that the point was not pressed in the lower Court. From the order of the Court, dated the 3rd of December 1919 it seems to be clear that objection was taken to the plotting of the field book by the Amin only at the time of argument. It has not been shown that it was practicable to plot the Chittas, which by the way were produced by the plaintiff or how the defendant has suffered on that account. Then remains the question as to the plotting of the field book of the first A min. It is contended that the distance between the stations Nos. 27 and 28 was originally 9 chains 40 links which was afterwards altered to 13 chains 40 links. The Amin swears that the, figures 13--40 are the correct figures. It is not necessary for us to say whether the alteration alleged to have been made was wrong, as from the map prepared by the second Amin the difference with, regard to the disputed plots does not appear to be considerable. Having regard to the nature of the lands, the absence of prominent land marks and the inability of the parties to produce any satisfactory evidence as regards tri-junction points to assist the Amin, we should not probably have been disposed to think that it would have served any useful purpose to send back the case for a fresh local investigation. Doubtless the appellant has suggested; that some things might have been done in a better way but he has not assisted to establish his contention.
11. In our opinion the appeal must succeed on the ground that this suit is not maintainable on the same cause of action as that which was the subject of the award: that the plaintiff's remedy was by execution of the decree on the award. If, however, he had sought to execute at the date when this suit was brought, his application for execution would have been barred. The appeal, therefore, succeeds and the suit is dismissed. The appellant is entitled to his costs in both Courts.