Badri Narain Upadhyaya (Dead) By Lrs. vs Jagdish Narain Upadhyaya

1. This appeal has been filed on behalf of the defendant to a suit for partition. It appears that one Vishwanatha Upadhyaya died in the year 1936 leaving behind two sons, Badri Narain Upadhyaya and Raj Narain Upadhyaya. The dispute arose in respect of the residential house which was referred to an arbitrator. On 29-8-1939, the arbitrator gave an award in respect of the partition of the house in question. On application being filed on behalf of the defendant-appellant, the said award was set aside. However, on appeal being filed before the High Court, the award was directed to be made the rule of the court. Thereafter, the present suit was filed in the year 1963 by the plaintiff-respondent for partition of the land adjoining the pucca house. The defendant-appellant resisted the suit for partition on the ground that even the land adjoining the pucca house had already been partitioned on the basis of the award aforesaid dated 29-8-1939. The trial court dismissed the suit of the respondent saying that the disputed area was covered by the award aforesaid. However, on appeal being filed, the said judgment and decree was set aside with a direction to hear the matter afresh. After remand, the suit of the respondent was decreed by the trial court. The appeal filed on behalf of the defendant-appellant was dismissed. The High Court has also dismissed the second appeal filed on behalf of the appellant.

2. From a bare reference to the order dated 18-9-1943 passed by the High Court in connection with the dispute relating to the award dated 29-8-1939, it shall appear that the High Court then clearly recorded a finding that the award was in respect of the pucca house only and did not cover the area adjoining the said house, which had not been partitioned. It need not be pointed out that this finding of the High Court between the parties became final and binding on them. In the present suit, the trial court, court of appeal and the High Court have rightly referred to the aforesaid finding for the purpose of coming to the conclusion that the dispute which had been referred to the arbitrator in the year 1936 and in respect whereof an award was given on 29-8-1939, did not cover the disputed land which is the subject-matter of the partition suit. In view of the findings of the three courts which are based on the judgment of the High Court given earlier, there is no scope for this Court to interfere with the same. The appeal fails and is dismissed. No costs.