Ramkhelawan Sah and another vs Ram Nagina Prasad

James, J.—This is a second appeal from the decision of the District Judge of Saran modifying the decree of the Munsif based upon an award of arbitrators. The suit was instituted for recovery of arrears of rent on the allegation that the defendant held a certain jalkar tenancy under a lease for a term of five years. The defendant contested the suit, denying that rent was payable at the rate claimed by the plaintiff and asserting that he held this jalkar as an appendage to his tenancy as a settled raiyat. The suit was referred to arbitration. The arbitrators found that rent was payable at a rate lower than that claimed by the plaintiff and higher than that admitted by the defendant''s finding at the same time that the tenancy in respect of winch the rent was claimed was that of a settled raiyat. The Munsif modified this award, acting under para. 12 of the Sch. 2, Civil P.C., and eliminated the finding that the defendant''s tenancy was that of a settled raiyat. On appeal the District Judge restored this portion of the award, holding that as the whole suit was referred to arbitration, this was one of the matters which, the arbitrators were asked to determine.

Mr. Anand Prasad on behalf of the plaintiff-appellant argues that the Munsif had pronounced judgment according to the award under para. 16, Sch. 2 and that from the decree based on the judgment so pronounced no appeal could lie. Under S. 104 (c) of the Code, the defendant was entitled to appeal from the order modifying the award; but Mr. Anand Prasad points out that the appeal was in form not from the order modifying the award, but from the decree which was based on that order. If the appeal had been expressly from the order modifying the award, no second appeal would have been admissible; but if the appeal was regularly preferred from the decree and not from the order the form of the appeal might justify the admission of a second appeal. Mr. Anand Prasad suggests that under para. 16 no appeal could lie from the decree; but the Munsif did not pronounce judgment according to the award, but in accordance with his modification of the award and from such a decree an appeal will lie: Jawahar Singh v. Mul Raj, (1886) 8 All 449 = 1886 AWN 210.

The learned advocate further argues on the merits, that as this was merely a suit for arrears of rent, it was not necessary for the arbitrators to determine the status of the defendant which was not one of the matters referred to them for decision. But the learned District Judge has pointed out that the parties were at variance on the question of whether the defendant owed rent merely for the jalkar or whether he was a raiyat in respect of the land mentioned in the plaint; and indeed it appears that one of the most important points which the arbitrators had to decide was whether the tenant held on a five years lease as alleged by the plaintiff or whether he held as a raiyat in accordance with the settlement said to have been made in 1328 Fasli. That being so, I cannot find that the learned District Judge committed any error of law in restoring this part of the decision of the arbitrators and this appeal must be dismissed with costs.