M.P. Mehrotra, J. - (1.) THIS appeal is directed against an order of remand passed by the lower Appellate Court. The facts, as appearing from the lower appellate Court's judgment, are these: The Plaintiff filed suit No. 156 of 1967 for permanent injunction for restraining the Defendants from demolishing the wall Da Ra or causing any damage to it and further for restraining the Defendants from causing any interference with the Plaintiff's possession over the same wall. A relief for restoration of the olti of the Plaintiff was also sought. The wall Da Ra and the Plaintiffs olti have been shown in the map attached with the plaint. In brief the Plaintiff alleged to be the owner of the house in suit alongwith the Defendant No. 3. In the lower storey of the house adjoining the wal Da Ra there is a room of Plaintiff and above; it, there is Plaintiff's kitchen. All the four walls of house are owned by the Plaintiff and Defendant No. 3 who have been is possession of them since time of their ancestor. To the south of the house of the Plaintiff is the house of Defendant Nos. 1 and 2 and its, western portion was in the shape of parti land on which the water of the southern olti of the Plaintiff's house used to fall since the time of the Plaintiff's ancestors. The Defendants 1 and 2 are constructing the western part of their house and they are raising northern wall of their house adjoining the Plaintiff's wall Ma Ta as shown in the plaint map. The Defendants have forcibly demolished the southern olti of the Plaintiff and they have stopped the flow of water, Further the Defendants have started demolishing the upper portion of the wall Da Ra without any right, hence the suit. Suit was contested by the Defendant Nos. 1 and 2 on several grounds. In brief, they denied the ownership of the Plaintiff regarding wall Da Ra and claimed themselves to be its owner. It was also denied that the Plaintiff or Defendant No. 3 had any right to maintain their olti or flow water from it. In fact the Defendant 1 and 2 removed the part of Khapraila of the Plaintiff with his consent. The learned Munsif framed necessary issues and holding that the Plaintiff is not the owner of the disputed wall nor he has any prescriptive right to flow water in the disputed place, he dismissed the suit. Feeling aggrieved by this order the present appeal has been filed by the Plaintiff Appellant.
(2.) THE lower appellate court allowed the Plaintiff's appeal and set aside the trial court's judgment. The suit was remanded to the trial court with a direction that the parties should be given opportunity to adduce oral evidence. The trial court was further directed to pass a specific order on application No. 56C and if necessary to make a local inspection itself or issue a commission. The Defendants felt aggrieved with the judgment of the lower appellate court and have come up in the instant appeal in support thereof. I have heard the learned Counsel, Shri K.N. Tripathi Counsel main contention is that in view of the joint statement contained in 40C the parties had constituted the trial court to act as the referee and the decision of the referee was binding on them and in such a situation, none of the parties had a right to file an appeal against the trial Court's judgment. The learned Counsel has placed reliance on a Division Bench ruling of the Madras High Court reported in Bambarana Guddappa Rai v. Ramanna Banta : AIR 1937 Mad 95. In the said case, it has been laid down as under: When the parties agree to abide by the decision of the Court their intention was to obey or to comply with it without questioning its correctness or validity. It is not open to any of them later on to say that the decision is not binding on him. The real position is the judge is made a quasi arbitrator though not bound by any of the inhibitions of the Arbitration Act. In my opinion, the ratio laid down in the Madras case could not be applicable to the facts of the instant case. In the Madras case, the Judge undoubtedly proceeded to act on the basis of the joint statement and gave his decision as required by the parties on the basis of that joint statement. In the instant case, it has not been shown that the presiding officer of the trial court accepted the position which the parties desired bun to accept in the light of the statement contained in 40C. The order sheet shows that he only accepted the prayer of the parties to make a local inspection and he disposed of the application accordingly. It does not appear from the order sheet that he also agreed to act as the referee, as desired by the parties. Apart from this aspect of the matter, subsequent orders passed by the trial court again go to show that the court was not acting as the referee in the light of 40C. The order sheet dated 18th February, 1969 disposing of 51D is significant and runs in this manner: In this case parties agreed to a local inspection. It was made on 20 -12 -1968. Inspection report was given and it is on records Plaintiff again wants a local inspection. There is objection also. Therefore the inspection cannot be again made. It appears that fresh inspection may not serve the purpose, 51D is filed. Plaintiff wants to adduce evidence. Therefore, fix 7 -4 -1969 for final hearing. As the O.P. has also no evidence today, no order is made as to coats. In my opinion, the aforesaid order clearly shows that the court was prepared to proceed with the recording of oral evidence on 18th February, 1969 which was a date fixed for final hearing. The case was adjourned to 7th April, 1969 with a view to enable both the parties to lead oral evidence. All this was not contemplated by 40C by which the parties desired the Presiding Officer to make a local inspection and decide the case on the basis of such inspection. In this view of the matter, I have come to the conclusion that the trial Court's Presiding Officer did not allow 40C in the sense of acceding the prayer of the parties to act as the referee. He merely acceded to the prayer of the parties to a limited extent i.e. he agreed to make a local inspection. The rights of the parties to adduce oral evidence were kept intact as is clear from the subsequent order sheet and indeed the trial court's judgment also shows that it did not, at any stage, curtail the rights of the parties to lead oral evidence, It has observed in its judgment: The parties have not adduced any evidence in this Court.
(3.) ALL this is indicative of the fact that the trial court did not think it admissible and expedient to act in the manner in which the parties initially desired him to act by 40C. In this view of the matter, the Appellant's contention that no appeal lay from the trial Court's judgment is not tenable. The trial court's decree cannot be equated with a consent decree from which no appeal lies.;