JUDGMENT
P.C. Agarwal, J.
1. This is a second appeal by the plaintiff whose suit for declaration of title and possession after removal of construction has been dismissed by both the Courts below.
2. Appellant had claimed that he had purchased his house with an yard in village Uchehara by registered sale-deed dated 7-7-76 from one Rammilan son of Ayodhya Prasad Gupta and had obtained possession thereof. It was claimed that towards north of this house a mud wall 22′ long and 11″ in width existed which was in his possession since purchase. It was claimed that the respondent has his house towards north of such house of appellant and on 25-8-85 the respondent demolished this mud wall and constructed a new wall which is 22′ in length and 11″ in width of 8′ 6″ height. It was claimed that the respondent further encroached on 7′ x 2′ x 6″ land by constructing a wall. All per plaint, the respondent has encroached on 12-1/3 sq. ft. 17-1/2 sq. ft. of land. Despite report to the police on 25-8-85 and interference of the ciders of the village the respondent did not desist hence the Civil Suit for declaration and possession.
3. The respondent had contested the civil suit, According to him, a dispute had arisen between the parties in year 1978. By mutual agreement arbitrators were appointed who gave their award on 5-8-78. Such award was signed by the appellant and his mother also. One of the arbitrators, Rantideo Singh had applied for making such award a rule of Court but on assurance of the appellant that he would comply with such award even otherwise, suit, was withdrawn, Collector, Satna had passed an order on basis of such award dated 28-4-79. The Collector, Satna had visited the spot and inspected on 28-5-85. The appellant had not objected before Collector, Satna, However, afterwards the appellant has moved the Board of Revenue in revision against the order of Collector dated 28-5-85. As per respondent, the appellant has not only not complied with such award but has been attempting to grab more land unauthorisedly.
4. The trial Court held that the appellant has not been able to prove any encroachment on his land. Accordingly to him, the disputed and wall did not belong to the appellant.
It was held that construction by the respondents were done in accord with arbitration award Ex. D.1 which though was unregistered was acted upon by the parties. One of the arbitrators Ranti Deo had moved the Court for making the award a rule of Court. However, he withdrew later on when the appellant expressed that he would conform to the same otherwise also. Collector Satna had respected the award and had passed orders in accord with the same and challenge to such order in revision by the appellant had failed from Board of Revenue and thus the suit, was dismissed. The learned first appellate Court also concurred with the trial Court and held that the appellant had not been able to prove his title or claim otherwise also. According to him the suit was not either for enforcement or avoidence of the award and thus validity of the same as on award was not necessary to decide. However, the same could be taken as a piece of evidence even if unregistered and not made a rule of Court.
5. This second appeal was admitted on 18-3-1994 on following substantial question of law :–
“Whether the civil Court committed an error of law and jurisdiction in deciding the dispute of partition wall between the parties by relying on the so-called Panchfausla (Ex. D. 1) and the modification of the same by order of Collector (Ex. O. 9)”?
6. I have heard the advocate of both the parties and have perused the records and judgment of both the Courts below.
7. Plaintiff-appellant had filed this suit for possession and removal of encroachment construction on the basis of his title. He had to prove his title on his own evidence. He could not rely merely on weakness of the defence. Here in the present case both the Courts below had given a concurrent finding that Mud Wall was not purchased by the plaintiff-appellant by a sale deed. A Chabutra of respondents existed in the north of the house of the plaintiff-appellant. The respondents were in possession of Mud wall even before the plaintiff-appellant had purchased his house. Besides recording evidence of parties, the learned trial Court had appointed a Commissioner for local inspection and his report was not in any way favourable to the plaintiff/appellant. Plaintiff-appellant had not taken any expedient to examine the Commissioner in Court or to establish his case through such Commissioner. Thus, obviously the title of the plaintiff-appellant on the suit land and the mud wall was not established and as such his suit was liable to fail, as it has failed.
8. Obviously the present was not a suit either to make the arbitral award a rule of lawn or plaintiff-appellant had challenged the same directly on the ground that it has been either void or ineffective against him. Hence the approach of the learned first appellate Court in not testing the same award on the anvil of Arbitration Act 1940 has not been incorrect or improper. The Courts below have taken the award only as a piece of evidence. After all this award was signed by the plaintiff-appellant and his mother, though the plaintiff-appellant had first denied it but had admitted hesitatingly latter. The award though was not registered was acted upon by the parties as was clear from the evidence of the respondents as well as the report of the Commissioner appointed by the Court for local inspection. Obviously Ranti-Deo one of the arbitrators had applied to make the same as a rule of Court but had withdrawn such step on assurance of the plaintiff-appellant that he would otherwise conform to the same. Such theory was supported by Ex, D. 6 application under Section 14 of the Arbitration Act and Ex. D. 2 to D. 5, copy of summons issued to the parties in that case. Obviously the Collector had relied upon it in his decisions dated 28-4-79 and 28-3-85. The Collector had visited and inspected the spot on 28-3-85. Copies of both these orders dated 28-4-79 Ex. D. 9 and 28-3-85 Ex. D. 10 are there on record. A revision against the later order of the Collector had failed in Board of Revenue. The Collector had acted on this award in the capacity of Administrator of Municipal Committee. Reliance by the Collector on the arbitral award Ex. D. 1 dated 5-8-78 in his order dated 28-4-1979 clearly shows that the arbitral award existed before passage of such order and thus was not prepared after wards but had actually come into existence on 5-8-78 as has been claimed by the respondents.
9. It is true that Ex. D. 1 award affected or purported to affect the right title or interest in immovable property of value exceeding Rs. 100/- and the same must have been registered under Section 17(1)(e) of the Registration Act 1908. Lachhman Dass v. Ramlal, AIR 1989 SC 1923 the same being not an arbital award made an reference by a Court in a suit. However, filing on an unregistered award requiring registration was not prohibited under Section 49 of the Registration Act. Champalal v. Mst. Samrath Bai, AIR 1960 SC 629. Thus, the reliance on the same for the collateral purpose under the proviso to Section 49 of the Registration Act as has been done by the Courts below has not been erroneous. Mattapalli Chelmayya v. Mattapalli Venkataratnam, AIR 1972 SC 1121.
10. Of course, the arbitral award is not written on proper stamp paper. Such objection was raised on 30-11-88 by the appellant but the trial Court reserved orders on such objection and marked it as an exhibit, Obviously the award should have been impounded and stamp duty and penalty should have been realised. Badri Prasad v. Bhagwan Das, AIR 1956 Madhya Bharat 117 and Sileshwar v. Rahasmati (1979 MPLJ Note 6) are the clear authority on the point. Rikhab Das v. Ballabh Das, AIR 1962 SC 551 authorises the validation of unstamped arbital awards. However, such award has been admitted in evidence and marked as exhibit. Such an admission cannot be called in question at any later stage of the same suit or proceedings on the ground that it was not duly stamped. Annamalai v. Veerapa, AIR 1956 SC 12. Here in the present case the learned trial Court had marked the award as an exhibit and had postponed the decision on objection about its being unstamped. Such postponment of decision does not affect the admission of the document in evidence.
11. Obviously in view of all this the arbital award Ex. D. 1 could not be thrown out by the Courts below as a waste paper even if the same was not made a rule of Court. It was unregistered and unstamped, yet it was acted upon by the parties and thus could be used as an evidence of collateral transaction or for collateral purposes by the respondents under proviso to Section 49 of the Registration Act. Thus, in my considered opinion. Courts below had not committed any legal error in relying the arbital award Ex. D. 1 for the purpose for which they have used it. The question is answered accordingly.
12. There has been no force or substance
in this second appeal. Hence the same is
dismissed with costs. The judgment and
decree of the learned first appellate Court
are hereby confirmed. Advocate’s fee as per
schedule.