- (1.) THIS is a plaintiffs appeal. It arises out of a suit for injunction and damages. The parties are neighbours residing in adjoining houses. There is a piece of land in between the houses of the parties shown as ABCDEF in the plaint map. The plaintiff claims that he is the owner in possession of this land. The defendant has recently demolished the plaintiffs wall A B and has fixed a door therein and intends to use the land aforesaid unlawfully. He prayed for an injunction to restrain the defendant from using this land and to direct him to close the opening made by him at AB Rs. 25/- were claimed as damages.
(2.) THE defendant alleged that he had a right of way over the piece of land in dispute, that the plaintiff attempted to close the opening at AB and thereupon a dispute arose between the parties. The parties by a written agreement referred the dispute on 22-6-1950 to the arbitration of three named persons. The arbitrators inspected the locality, heard evidence and decided the dispute that very day. Their written award was to the effect that the defendant will have a right of way over the land in dispute and that he will have a right to fix a door at AB, it was alleged that the suit, being in substance to set aside the award, was not maintainable. The trial court framed a preliminary issue on the maintainability of the suit in view of the existence of the alleged award, it is the common case of the parties that the award set up in defence was never made a rule of the court. The trial court came to the conclusion that the parties had referred the dispute involved in this suit to arbitration and the award is binding on them and as such the suit is not maintainable. On appeal the lower appellate court affirmed the finding and confirmed the decree. It held that the suit was barred by Sec. 32 of the Indian Arbitration Act, 1940.
(3.) AGGRIEVED with the decision of the lower appellate court, the plaintiff has come to this Court in second appeal. It is urged for the appellant that the award not having been filed in court and no decree having been passed thereof under Sec. 17, Arbitration Act. It was wholly ineffective; it does not extinguish the pre-existing rights of the parties and that the suit being based on the original cause of action is maintainable. On the other hand, the respondent contends that the suit is in substance to nullify the effect of the award and is barred by Sec. 32, Arbitration Act, 1940 and that the award constitutes a successful defence to the suit.;