Sheo Narain v. Beni Madho

Banerji and Aikman, JJ.:— The plaintiff Lekhraj is one of the sons of Jai Ram, and the other plaintiffs are the sons of another son of Jai Ram the defendants are Umrao, brother of Jai Ram, and Gaya Din and Beni Madho, sons of another brother of Jai Ram. The property in suit is alleged to have belonged to Chain, the father of Jai Ram. Chain died in 1865, and after his death the name of his son Bhawani Prasad, the father of the defendants Beni Madho and Gaya Din, was recorded in the revenue papers. Upon the death of Bhawani Prasad disputes arose in mutation proceedings as to the entry of names, and these disputes were referred to arbitration. On the 9th February, 1884, an award was made by which the plaintiffs were declared to be entitled to a 6½ anna share in the property. The award provided that the parties were to continue in possession of the shares declared to belong to each of them, and that Beni Madho was to present a petition in mutation proceedings for the entry of names in accordance with the award. He made such an application, which was granted on the 5th June, 1884, and the names of the plaintiff Lekhraj, and of Beche Lal, the father of the other plaintiffs, were recorded.

After Beebe Lal's death, in 1891, his sons brought a suit for profits. That suit was dismissed, and thereupon the present suit was instituted on the 3rd January, 1898, by the three plaintiffs for recovery of possession of what they alleged to be their share in the property. They claimed that they should be put into possession of an 8 anna share, failing that, that they should get a 6½ anna share, in accordance with the award, and failing that, a 5 anna 4 pie share of the property. The Court of first instance granted the plaintiffs a decree for anna share. The plaintiffs submitted to this decree, but the defendants appealed. On appeal the learned District Judge held that the claim was barred by article 113 of the second schedule of the Indian Limitation Act. He was of opinion that the suit must be deemed to be a suit for the specific performance of a contract, and that, as it had not been brought within three years from the date of the award, the suit was barred by limitation, under that article. He also held that the plaintiffs had failed to prove possession “for a period anterior to the twelve years preceding the date of the institution of the suit.”

As the finding upon the question of possession was meaningless, and as moreover the learned Judge, in arriving at his conclusion, had omitted to take into consideration material evidence in the case, we referred to him an issue as to whether the defendants were in adverse possession for more than twelve years preceding the date of the institution of the suit. On this issue tile learned Judge has found against the defendants and has held that the adverse possession of the defendants has not been established. He has further found that the plaintiffs were in possession within the twelve years preceding the date of the suit. Objections have been taken under section 567 of the Code of Civil Procedure in respect of these findings, but these objections are, in out opinion, untenable. There is evidence on the record which justifies the findings, and the findings being findings of fact, must be accepted in second appeal.

The learned Judge has omitted to record a finding on the question, whether the award of the 9th February, 1884, was binding upon the parties. We referred an issue to him on that point also, and his finding is in favour of the plaintiffs.

There remains, therefore, only one more question to be determined in this appeal, namely, whether the suit should be considered as one for the specific performance of a contract, within the meaning of article 113 of the second schedule of the Indian Limitation Act, and whether it is barred under that article. We have no hesitation in holding that this is not a suit for the specific performance of a contract. The award is the decision of a tribunal constituted by the parties: it is a document which declares the title of the parties, and is evidence of the existence of such title on the date on which the award was made. This very question was before the Madras High Court in the case of Sornavalli Ammal v. Muthayya Sastrigal , and it was held in that case that a suit to enforce an award cannot be treated as a suit to enforce a contract within the meaning of article 113. We entirely agree with the view of the learned Judges who decided that case, and with the reasons given by them for that view. It is imposable to hold that every suit on the basis of an award is a suit upon a contract, or is a suit for the specific performance of a contract. The agreement to refer is, it is true, a contract, and it may be presumed that a contract was also made for the performance of that which the award directs to be done.

The only thing which the award in this case directed to be done was, that an application should be made for mutation of names. That was the only matter of which, performance was required, and that, as stated above, has been done. The claim is one for possession of immovable property, and the limitation applicable to it is that prescribed for a suit of that description. We are unable to hold that because the title of the parties was declared by an award, the suit is one for the specific performance of a contract. In our opinion, a suit founded on an award is not a suit for the specific performance of a contract, any more than is a suit based upon a sale-deed a suit for the specific performance of the contract of sale. The case of Sukho Bibi v. Ram Sukh Das was referred to in the argument on behalf of the respondent. That case is distinguishable from the present, as the award in that case distinctly provided for something to be done. It is unnecessary therefore for us to say whether or not we agree with that decision. The same remarks apply to the later case of Baghubar Dayal v. Madan Mohan Lal .

The result is that we allow this appeal, set aside the decree of the Court below with costs, and restore, the decree of the Court of first instance.

The appellants will has the costs of this appeal.

Appeal decreed.