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Dwitiar Chand Mandal and anr. Vs. Dharanidhar Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata
Decided On
Reported inAIR1929Cal831a
AppellantDwitiar Chand Mandal and anr.
RespondentDharanidhar Mandal and ors.
Cases ReferredKali Charan v. Sarat Chandra
Excerpt:
- .....an award in which they gave the plaintiffs a right of way over another plot, dag no. 1670. the learned munsif held that two of the arbitrators had full authority to act and submit a binding award; and, therefore, he gave a decree in terms of the award filed.2. ground 1 urged by the plaintiffs 'who have obtained this rule is that the arbitrators had given a path over a piece of land which was not the subject-matter of the suit, namely, plot 1670. the answer to this contention is that this point was never taken, as far as i can see, before the munsif, and i am not prepared to allow the party to take in revision a point which he could have but did not take in the lower court, the same remark applies to ground 2 which is that the plaintiffs, petitioners, were not given an opportunity of.....
Judgment:

Cuming, J.

1. The facts of the ease out of which this rule has arisen are briefly these: The petitioners brought a suit in which they claimed a right of passage over two plots of land, dags Nos. 1665 and 1666, in order to have access to a certain tank. The case was referred to the arbitration of three gentlemen. It appears from the Munsif's finding that only two of these gentlemen acted and took evidence. Arbitrator 3 took no part in the arbitration. These two arbitrators submitted, an award in which they gave the plaintiffs a right of way over another plot, dag No. 1670. The learned Munsif held that two of the arbitrators had full authority to act and submit a binding award; and, therefore, he gave a decree in terms of the award filed.

2. Ground 1 urged by the plaintiffs 'who have obtained this rule is that the arbitrators had given a path over a piece of land which was not the subject-matter of the suit, namely, plot 1670. The answer to this contention is that this point was never taken, as far as I can see, before the Munsif, and I am not prepared to allow the party to take in revision a point which he could have but did not take in the lower Court, The same remark applies to ground 2 which is that the plaintiffs, petitioners, were not given an opportunity of placing their case before the arbitrators. There is no suggestion in the judgment of the learned Munsif that any such objection whatsoever was taken by the petitioner.

3. The last ground taken is that the learned Munsif was not correct in holding that two of the arbitrators had full authority to act and submit a binding: award, Now, as far as I can see from the-terms of the reference it was all the three of the arbitrators who had to enquire into the matter although an award would be signed and submitted by only two. The learned Munsif in holding that only two of the arbitrators had full authority to act and submit an award is guilty of either error of law or error of fact, But the fact that the Court is guilty of error of law or error of fact is no ground for interfering with his decision in revision. The present case in many respects resemble the case of Kali Charan v. Sarat Chandra [1908] 30 Cal. 397. I am, therefore, of opinion that it is not open to me in revision to interfere with the judgment of the learned Munsif even though it is passed upon an error of law or error of fact. It cannot be said that he had no j jurisdiction to decide the matter or that j he failed to exercise a jurisdiction which he had or that he had exercised his jurisdiction with material irregularity. Nor do I see that any injustice has been done to the petitioners. What he wanted is a right of way to a certain bank. That right he has got, although he did not get the right over the particular passage.

4. The rule is, therefore, discharged with, costs. Hearing-fee one gold mohur.


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