1. This is an application in revision by defendants 1 and 2 against an order of the Munsif of Arrah allowing the plaintiff's objection to an award filed by an arbitrator in the suit and setting aside the award. It is necessary to set out the facts shortly. A holding consisting of 4 bighas odd and comprised in survey plots Nos. 287 and 401 originally belonged to one Baldeo Chaudhury. A rent suit was instituted against Baldeo Chaudhury and in execution of the decree passed in the rent suit the holding was sold on 8th January 1914 and purchased by two persons Basdeo and Tribeni Singh. Defendant 3 is the descendant of Basdeo and defendant 4 is the son of Tribeni. In execution of a subsequent rent decree obtained against defendant 3, presumably on the allegation that defendant 4 had no interest in the holding 2 bighas odd kathas of the holding comprised in plot No. 287 was sold on 29th July 1926 and purchased by defendant 1. Subsequently on 19th September 1927 defendant 3 sold the remaining portion of the holding comprised in plot No. 401 by a private sale to defendant 2. It thus appears that the entire holding passed to defendants 1 and 2, who are brothers, from defendant 3. Defendant 4 however who, as I have said, is the son of Tribeni, one of the purchasers in the sale of 1914, purported to sell his one half share in the holding acquired by; the purchase of the year 1914 to the plaintiffs under a deed of sale dated 30th July 1927. Thereupon a dispute arose as regards the possession of the half share of the holding purchased by the plaintiff between him and defendants 1 and 2 and an order was made in a proceeding under Section 145 of the Cr PC, confirming the possession of defendants 1 and 2.
2. The plaintiff then instituted the present suit on 19th December 1931 for a declaration of his title to half the holding and for recovery of possession. In this suit the two purchasers defendants 1 and 2, were described as the principal defendants and their vendor, defendant 3, and the plaintiff's vendor, defendant 4, were treated as pro forma defendants. The relief claimed was the possession of half the holding as against the principal defendants, and in the alternative, joint possession “along with the defendants.” Defendants 1 and 2 filed a written statement in which they set out their title by purchase from defendant 3 and alleged that defendant 4 had no interest in the holding, and in fact in a proceeding in the year 1920 he had disclaimed all interest therein. Defendants 1 and 2 therefore claimed the entire holding and disputed the plaintiff's title to half of it. Defendants 3 and 4 never appeared in the suit and never contested it. It appears that the plaintiff and defendants 1 and 2 filed an application in Court on 20th September 1932 praying that the matter in difference between them may be referred to the arbitration of one Chandradip Chaudhury. The Court took up this application on 22nd September 1932. As defendants 3 and 4 had not joined in the application for reference to arbitration it appears that some objection had been made by the office. The learned Munsif heard the parties upon this application. It was then stated on behalf of the plaintiff that no relief had been claimed against defendants 3 and 4 and that they were merely pro forma defendants and that it was not necessary for them to join in the reference to arbitration. The Court accepted that statement and by its order of 22nd September 1932 made the reference as prayed for.
3. The arbitrator filed his award on 28th November 1932 and the plaintiff objected to the award. Various objections were taken as regards the misconduct of the arbitrator and as regards his having colluded with defendants 1 and 2 and his having some relationship with them; but all these objections were overruled by the Munsif and he held that there was no substance in those objections. The learned Munsif however upheld the objection of the plaintiff that the reference to arbitration was bad in law inasmuch as defendant 3 and 4 had not joined in the application for reference. The learned Munsif was of opinion that defendant 4, vendor of the plaintiff, was not a necessary party for the purpose of reference to arbitration, but that defendant 3 was a necessary party inasmuch as the plaintiff had in the alternative asked for a relief of joint possession with the defendants without specifying which of the defendants, and therefore with all the defendants. In this view of the case he held that the reference to arbitration was bad because defendant 3 was a person interested and he had not joined in the reference. On this ground he has set aside the award and has directed that the suit should be beard in Court in the usual way.
4. Defendants 1 and 2 have come up in revision against the order of the learned Munsif and it is contended on their behalf that the learned Munsif was wrong in law and acted without jurisdiction in setting aside the award and directing the suit to proceed in the usual way.
5. Now it is quite clear from the statement of the parties contained in the pleadings as well as in their statements in Court made on 22nd September 1932 that the real parties who were interested in the subject-matter in difference between them were defendants 1 and 2 on the one side and the plaintiff on the other. The suit was the result of the order in the proceeding under S. 145 in which the parties were only the plaintiff and defendant 1. Possession over the share claimed by the plaintiff was with defendants 1 and 2 alone and not with defendant 3. Defendant 3 in spite of notice never came forward to claim any portion of the land which was the subject-matter of the litigation in the present suit and it is clear from the statements of the parties made in Court that the only persons interested in the matter in difference between them in the present suit were the plaintiffs and defendants 1 and 2 and not defendants 3 and 4. If that is so, then a reference by these parties would be a good reference under the provisions of para. 1, Sch. 2, to the Code of Civil Procedure. It is contended that defendants 3 and 4 are interested inasmuch as if it be held that the plaintiff had no title and that he did not acquire any title by his purchase from defendant 4, then the plaintiff would have a right to claim damages as against defendant 4. Similarly if it be held that defendants 1 and 2 had no title then they would be entitled to claim damages as against their vendor. Defendants 3 and 4 are therefore said to have an interest in the subject-matter in difference between the parties. Now, in order to find out whether the parties have interest in the subject-matter in difference, it is necessary to see the nature of the suit in which that question is raised and not the possibility of their having any interest in a future litigation which may arise as the result of the decree in the suit.
6. In the present suit no claim is made for damages by the plaintiff as against defendant 4 in case it is found that he had no title. No decree can be made in the present suit either as against defendant 3 or against defendant 4 for damages. Having regard therefore to the nature of the suit and the statements of the parties it is clear that the reference made by the plaintiff and defendants 1 and 2 was a good and valid reference and the award made by the arbitrator on that reference was a legal award and could not be set aside in the way it has been set aside by the learned Munsif. The order of the Munsif will therefore be set aside and he is directed to make a decree in the suit in terms of the award.
K.S
7. Order set aside.