Monoranjan Mallick, J. - (1.) THIS appeal is against the appellate judgment and decree passed by Sri K. C. Mukherjee, Additional District Judge, Hooghly in Title Appeal No. 50 of 1966 by which the Learned Judge while dismissing the Appeal filed before him against the judgement and decree passed by the Subordinate Judge, Hooghly, in Title Suit No. 34 of 1960, has confirmed the preliminary decree passed by the Learned Subordinate Judge subject to the modification that the portion in which the parties were directed to get the Suit properties amicably partitioned amongst them in respect of their respective shares in terms of the award within three months from the date of the Order should stand deleted and it should be substituted by the Order that the interim award be referred back to the Arbitrators for making the award final by partitioning the properties by metes and bounds in respect of the respective shares of the parties in terms of the interim award within four months from date.
(2.) THE facts giving rise to this appeal may be briefly stated as follows: A Suit for partition was filed by the plaintiff respondent No. 1 before the Learned Subordinate Judge, Hooghly on 18.5.60. Subsequently before the written statement was filed all parties to the Suit filed a petition for referring the matter to three Arbitrators, viz., Sri Akshoy Kumar Ghosh, Sri Shiba Prosad Banerjee and Sri Kamakshya Charan Basu, as mentioned in paragraph 2 of their petition and in this petition they agreed to refer all matters in dispute between them in the Suit to these Arbitrators. As prayed for by the parties in the petition, the Learned Subordinate Judge by his Order No. 15, dated 13.8.60 referred the Suit to the Arbitrators mentioned in the petition for making an award in respect of all the disputes rising out of the Suit. THE writ of reference was issued upon the Arbitrators and they made an award on 24.6.63 and requested the Court to carry on the further proceedings. In making the award it was also mentioned by them as follows: "THE existence or otherwise of joint properties of the parties other than those mentioned in the plaint and the question of previous partition of Suit properties by metes and bounds between the parties, if any, are left open by the Arbitrators to be agitated d by any of the parties to this Suit in future." On this award both parties filed petitions of objection before the Learned Subordinate Judge praying for setting aside the award under Section 30 of the Arbitration Act. However, the Learned Subordinate Judge deleted the portion quoted above from the award and passed a preliminary decree in terms of the award and directed the parties to amicably partition the properties failing which a commissioner for partition would be appointed to partition the properties by metes and bounds,
(3.) BEING aggrieved by the said judgment and decree passed by the Learned Subordinate Judge an appeal was preferred and the Learned Additional District Judge dismissed the said Appeal and modified the judgment and decree passed by the Learned Subordinate Judge to the extent indicated above. BEING aggrieved the same appellant has preferred this Second Appeal.;