C.P.Sinha, J. - (1.) THE defendants are the appellants. THE suit was for partition o joint family properties, including Yatri Bahis. THE court below has decreed the suit in part, and hence this appeal.
(2.) THE parties are Gayawal Pandas. THE plaintiff's case is that they are entitled to one-fifth share in the properties in dispute, including Yatri Bahis. Being prevailed upon by the defendants, the plaintiffs and the defendants referred the matter to arbitration. THE arbitrators did not complete the arbitration, and, thereupon, it is said, the plaintiffs withdrew from the arbitration and filed the present suit, after their demand for partition by metes and bounds was refused by the defendants. In the written statement, several defences were taken, including the one that the suit was not maintainable under Section 32 of the Arbitration Act. It was alleged that there was a previous partition shortly after the death of the father of the defendants and plaintiff No. 1, and, by that partition, the joint status of the family was reversed and defendant No. 1 never functioned as the karta of the joint family. It was also said that the arbitrators had already partitioned a large number of movables and some immovables and had prepared a partition list, on which every co-sharer has signed as token of acceptance, and, accordingly, they had taken separate possession of the properties so divided, and that, due to the advent of the Pitri Paksha Mela, the work was stopped and the undivided movables, including the Yatri Bahis, were locked in a room by the arbitrators. A number of issues were raised, including issue No. 2 as to whether the suit was barred by Section 32 of the Arbitration Act. The court below found that some properties had already been divided by the arbitrators and the parties were in separate possession of the properties so divided, and held that the suit was not barred by Section 32 of the Arbitration Act. In regard to the Yatri Bahis, the court below has held that "the best method of division is to divide the original pages of Jatri Bahi in an equitable manner", following the decisions of the Calcutta High Court in Narayan Lal v. Chulhan Lal Gupta, 15 Cal LJ 376 (A), wrongly mentioned in the judgment as 40 CLJ, and that of Allahabad High Court in Ram Chandar v. Channu Lal, AIR 1923 All 350 (B).
(3.) MR. H.P. Sinha, learned Counsel for the appellants, has submitted that the suit is barred under Section 32 of the Arbitration Act, and that the Yatris, namely, pilgrims, coming to Gaya for the performance of the sradh of their ancestors should have been divided parganawise and district-wise and not that the pages of the Yatri Bahis should have been divided. So far as the first point is concerned, the position stands thus. The parties had, in fact, referred their dispute to the arbitration of certain persons, and the arbitrators had entered upon arbitration. They had, in fact, divided some of the properties, but they had not made their award. In the meantime, the suit was filed by the plaintiffs. In such a case, Section 34 of the Arbitration Act of 1940 lays down that, where any party to an arbitration agreement commences any legal proceedings against any other party to the agreement, in respect of any matter agreed to be referred to arbitration any party to such legal proceedings, at any time before the filing of the written statement or taking any other steps in the proceedings, may apply to the judicial authority, before which the proceedings are pending, to stay the proceedings before it. In the present case, an application under Section 34 of the Act was, in fact, made, but it was made at a false stage, and the court by its order dated the 15th June, 1949, rejected the application for stay. The said order was appealable under Section 39 (1) (v) of the Act, but no appeal was filed with the result that the order refusing the stay became final. Section 32 of the Act, which reads as follows "Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever 'for a decision upon the existence, effect or validity of an arbitration agreement' or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way effected otherwise than as provided in this Act" in my opinion, has no application. The underlining (here in ' ') has been done by me to show the important feature of that section. If there is a suit brought for the purpose of a decision upon the existence, effect or validity of an arbitration agreement or award, the jurisdiction of court other than the court under the Act is ousted. We have, therefore, to see whether the present suit was for any of the purposes mentioned in this section. There is no doubt that the plaint has made a reference to the arbitration agreement, but the reliefs asked for in the suit are as follows:-- "(i) A preliminary decree for partition specifying the share of the plaintiffs as claimed. (ii) A final decree for partition by metes and bounds by appointment of a commissioner to do the same. (iii) For any other relief or reliefs". It is apparent, therefore, that none of the reliefs envisaged in Section 32 of the Act has been asked for in the present suit. In that view of the matter, in my opinion, Section 32 has no application. Mr. Sinha also submitted that we might look into the correctness or otherwise of the order of the court below refusing to stay the suit under Section 34 of the Act. We declined to go into the matter as that order had become final inasmuch as no appeal was filed against that order, although an appeal was provided. In my judgment, therefore, there is no substance in the first submission of Mr. Sinha.;