1. This appeal arises out of a suit for a declaration of a right of way. The suit was dismissed by the Munsif and decreed on appeal by the Subordinate Judge and the defendants have preferred a second appeal to this Court.
2. The plaintiff and the defendants were co-sharers in a homestead and buildings thereon. There was a suit in which the present defendants were the plaintiffs and this joint property was partitioned by arbitrators and the suit decreed in terms of the arbitrator's award. In the reference to the arbitration there is a paragraph (paragraph No. 12) which runs as follows:
The passages leading from both houses should be kept intact by keeping them in ijmali in proportion to their respective sahams.
3. It is admitted that the pathway over which the right of way is now claimed, was in existence before the partition suit. But in making their award, the arbitrators, though they have reserved an area of a little less than 2 bighas as ijmali for roads, privy and tanks, did not include this path in the portion reserved.
4. It appears to me that the appellants are right in their contention that this decision in the partition suit operates as res judicata against the plaintiff. It may be that, having regard to the paragraph I have quoted from the achalnama, the arbitrators were wrong in not reserving this path also. But the remedy of the plaintiff in the present suit was by an objection to the award. Once the award is incorporated in the decree of the Court, it cannot be said that the decree is void for want of Jurisdiction, because, the award was not strictly in accordance with the terms of the achalnama. The learned Subordinate Judge has been misled by thinking that the arbitrators in their award ordered that all the existing pathways should remain joint. The award has been lead out to me and I find that it contains no such provision. The award expressly states what portions are reserved as ijmali and what portions are allotted to the parties in the suit, and the land over which the pathway is claimed was allotted to the present defendants as part of their exclusive property.
5. Than, again, the learned Subordinate Judge is wrong in saying that 'the Question of ret judicata does not arise as there was no wall like the present one and no obstruction on the admitted pathway in suit when the partition suit was tried.' The decree in the partition suit having given the defendants a right to the land on which the wall is built the plaintiff can have no cause of action against them for building a wall on their own land.
6. It is also suggested that the plaintiff has a right of easement by necessity arising out of the severance by partition. But such casement would arise from a presumed grant and no grant can be presumed when the question of the rights of way of the parties over the land partitioned, has been definitely settled in the partition suit. It is unnecessary to consider the other points taken by the learned Vakil for the appellant in this appeal, namely, that the plaintiff's remedy was by an objection in the execution proceedings and not by a suit, secondly, that the lower Appellate Court has come to no finding as to an arrangement between the parties which was found to have been made by the Court of first instance and, thirdly, that the decision of the lower Appellate Court is had because there is no finding arrived at as to the width of the road.
7. The appeal must, therefore, be decreed and the judgment and decree of the lower Appellate Court reversed and the decree of the Munsif dismissing the suit restored.
8. The appellants will get their costs in this Court and also in the lower Appellate Court.