- (1.) In the instant revisional application under Article 227 of the Constitution order No. 87 dated 01.09.2009 passed by the learned Civil Judge (Junior Division), 1st Additional Court, Contai in Title Suit No. 127 of 2007 has been assailed.
(2.) The petitioners/ defendants have contended that the above Title Suit No. 106 of 2002 subsequently renumbered as title Suit No. 127 of 2007 after transfer has been instituted by the plaintiff/ opposite party praying for a declaration of Title, permanent and mandatory injunction in respect of 'Ka'and 'Kha' schedule lands. In course of cross-examination of P.W.-1 in the above trial, he has admitted one 'Angikar Patra' dated 31.12.2001. In fact the Survey Commissioner submitted his report and relayed the land as contained in such document which was accepted. THE defendants then filed a petition on 17.08.2009 claiming that the said document being unstamped cannot be accepted and prayed for impounding the same for the purpose of payment of necessary stamp duty on assessment. THE plaintiff filed written objection thereon claiming, inter alia, that the document in fact is an award of the Panchayet and is not compulsorily registrable. Since the same was not registered it cannot be impounded and as such prayed for rejection of the above petition. Having heard both parties the learned Court below by order No. 87 dated 01.09.2009 has rejected the petition dated 17.08.2009 filed by the defendant/petitioner holding, inter alia, that the impugned document dated 31.12.2001 was an 'award' in nature and as such it required registration for admission into evidence. Being aggrieved by and dissatisfied with such order the defendants/petitioners have contended that the learned Court below has committed grave error in not impounding the instrument giving opportunity to them to cure the defect according to the provisions of the Stamp Act, 1899. Therefore, the said order is not sustainable in law and is liable to be set aside. It appears from the impugned order that considering the petition dated 31.12.2001 filed by the defendants the learned Court below has relied upon the testimony of P.W.-5 who has repeatedly mentioned the document as 'Salishnama' i.e, award which was also corroborated by the Survey Commissioner in his report which is also admitted by the D.W.-1. From the recital of the document it is found that the instrument itself has placed on record that there has been a dispute over a certain portion of the property and that there has been a decision/ conclusion arrived at by the villagers in respect of the said dispute in such instrument dated 31.12.2001. The parties to such agreement have conceded to abide by such decision and in terms of the said decision they have agreed to leave some space for the purpose. Considering this aspect the learned Court below has identified the impugned document dated 31.12.2001 as an 'award' in nature and has further held that the same is required to be registered for being admitted in evidence.
(3.) Learned lawyer for the petitioner has drawn my attention to page 205 of the Registration Act, 1908,11th Edition, Mullah. It is observed therein that while enacting the new Arbitration Act, the legislature has done away with the requirement of registration of an award by putting it on high pedestal of decree of Court. He has also relied upon and referred to the decision reported in the case of Ishwarbhai Purshottambhai Patel v. Chandrakantbhai Purshottambhai Patel, AIR 2006 (NOC) 834 (Guj). In the said case it has been held that in view of the object of the new Arbitration Act, legislature has done away with the requirement of registration of award and, therefore, the argument that an award begin not registered is non-enforceable is untenable. He has also relied upon and referred to the case of Union of India v. Popular Construction Co., 2001 8 SCC 470. It has been held therein that the Arbitration and Conciliation Act, 1996 provides Section 36 which provision is a significant departure from those of earlier Act of 1940, because such provision provide that award becomes immediately enforceable upon expiry of the period of limitation under Section 34 of the Act. For the purpose of better appreciation the provisions of Section 36 of the Act of 1996 is quoted below : "Section 36. Enforcement.-Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court." Learned lawyer for the opposite party No. 1 has, however, opposed the move and contended that the above instrument i.e., the 'Salishnama' or 'Angikar Patra', as the case may be, relates to extinguishment of right over some portion of village pathway. Therefore, in terms of Section 49 of the Registration Act and Section 35 of the Indian Stamp Act the said instrument is liable to be registered before admission of such document into evidence. He has also pointed out that the said document does not contain any schedule of property. So the learned Court below has rightly asked for registration of the same and refused to impound the said document which should not be interfered with.;