ORDER
N.S. Veerabhadraiah, J.
1. The petitioner being aggrieved of the order passed in Ex. Petition No. 356/95 by the Prl. Civil Judge (Jr. Dn.,), udupi dated 20.4.2001 dismissing the execution petition as not maintainable has come up with this revision.
2. The brief facts of the case are as follows:
Three plaintiff viz., (1) Sunanda v. Hegde, (2) Anitha and (3) Vijayalakshmi brought a suit for partition against the other branch of the family in O.S No. 20/1961 (O.S No. 71/59 on the file of the Sub Court, Mangalore) numbering 25 defendants. In the said suit, the former Judge of the Supreme Court viz., Sri K.S. Hegde was appointed as an Arbitrator to resolve the dispute among the family members as they were governed by the Law of Aliyasanthana prevailing in the areas of south Canara and other parts. The learned Arbitrator Sri K.S Hegde passed an award on 5.1.1982 allotting “A” schedule properties to the plaintiffs, “B” schedule properties to the L.Rs of the first defendant Sri B. Hirianna Hegde, “C” schedule properties to the L.Rs of second defendant Sri B. Seetharam Hegde, “D” schedule properties to the third defendant Sri B. Karunakara Hegde and “E” schedule properties to the defendants 4 to 8, who are the litigants in the present Execution proceeding. That the defendants 4 to 8 constitute one family. Defendant No. 4 , Rukmini Heggadathi is the mother of the petitioner Harish Hegde (defendant No. 7), whereas defendant No. 5, B. Balakrishna Hegde is the son, defendant No. 6, Maya and defendant No. 8, Rupa are the daughters. The learned Arbitrator while dealing with the punja lands of Herga village allotted an extent of 1 acre 87 cents in Sy. No. 177/3D and another extent of 13 cents in Sy No. 177/3A, in all measuring 2 acres, whereas defendant No. 6 Maya was also allotted with punja lands in Sy.No. 260/ 8D measuring 9 Cents, in Sy. No. 177/ 3F measuring 1.87 cents and in Sy. No. 136/1A measuring 1 cent, in all measuring 2 acres. The Arbitrator allotted “E” schedule properties as well as punja lands as stated above in favour of defendants 4 to 8. In the Final Decree proceedings, as there was a dispute regarding the sharing of the properties among the branch of Rukmini’s family in the property allotted to their branch that is, “E” schedule property and punja lands of Herga Village, the branch of Rukmini Heggadathi that is, consisting of the present petitioner Sri Harish Hegde, defendant No. 5, B. Balakrishna Hegde, defendant No. 6, Maya, defendant No. 8, Rupa, filed a joint memo for appointment of an Arbitrator for division of “E” schedule and other properties allotted to their branch. Sri S.R. Hegde, Advocate was appointed as the Arbitrator and he divided the whole of the “E” schedule property as well as the punja lands allotted to this branch. It is after the division of the properties, this petitioner Sri Harish Hegde sought for execution of the award of Sri K.S. Hegde in Execution Petition No. 356/95 in so far as it relates to 2 acres of punja land situated in Herga village, Udupi Taluk. The respondents entered appearance and filed their detailed objections statement. The learned Civil Judge (Jr.Dn.,), considering the award passed by Sri S.R. Hegde in which the division of the properties have taken place held, the decree cannot be executed. It is this order which is questioned in the present revision.
3. Learned Counsel for the petitioner Sri Sanath Kumar Shetty contended that the Arbitrator Sri S.R. Hegde was appointed for division of only “E” schedule properties and not the punja lands of Herga village situated in Sy.No. 177/3D measuring 1 acre 87 cents, and Sy.No. 177/ 3A measuring 13 cents. He has further contended that it is in respect of these 2 items of lands, he sought for delivery in the execution proceedings. He also contended that the Arbitrator Sri S.R. Hegde was not authorised to interfere with the award of Sri K.S. Hegde in so far as punja lands allotted in favour of this petitioner. He has further contended that the second Arbitrator Sri S.R. Hegde was appointed to make division in respect of only “E” schedule agricultural properties and not in respect of punja lands. Secondly contended that when once the decree has attained finality, the Arbitrator does not get jurisdiction to deal with the same and that it cannot be reopened. Thirdly contended that the punja land is not the subject matter of arbitration proceedings. Therefore, the Arbitrator has no authority beyond the scope of reference. In support of his contentions, he has relied on the decision in the case of PRINCE & CO., v. GOVERNOR GENERAL IN COUNCIL, AIR 1955 Punjab 240 and contended that the Arbitrator has exceeded his limits and gone beyond the point of reference. Therefore, contended that as a matter of right, the petitioner is entitled to execute the first award in respect of 2 acres of punja lands for delivery of possession in Execution Petition No. 356/95. Therefore, prayed to set aside the impugned order by allowing the Revision permitting to proceed with the Execution Petition.
4. On the other hand, the learned Counsel for the respondents Sri K. Gopal Hegde contended that it is not in dispute that Sri K.S. Hegde was appointed as the Arbitrator for division of the properties among the different branches of the family. In the arbitration proceedings, Sri K.S. Hegde allotted “E” schedule properties to the present branch of Rukmini Heggadathi and others who are defendants 4 to 8 and that there is no dispute in so far as the allotment of other sharers. The dispute is only between the petitioner and other family members, that is, the mother, brothers and sisters. The learned Counsel further contended that it is an admitted fact that they have filed a joint memo for appointment of an Arbitrator for division of “E” schedule properties. When the parties have chosen for the appointment of an Arbitrator, law does not prohibit. Therefore, it is not open for the petitioner to contend that the Arbitrator has no authority to consider the division of punja lands also. That punja lands are also the subject matter of division. The petitioner has never sought for setting aside the award of Sri S.R. Hegde. The punja lands and the award passed by Sri S.R. Hegde have been acted upon and the respective parties have taken their shares. He also contended that when the Final Decree Proceedings were pending, a Joint Memo was filed for appointment of an Arbitrator for division of the properties. In the “E” schedule property allotted to the branch of this family, it is further divided allotting “A” schedule to Rukmini Heggadathi, “B” schedule to Maya, “C” schedule to the petitioner Harish Hegde, “D” schedule to Rupa, “E” schedule to Manamohan and “F” schedule to Ranganath Hegde, brother of Rukmini Heggadathi. Thereby, it is clear from the award of the Arbitrator that it is only “C” schedule property which was allotted to Harish Hegde and the punja land of Herga village was not allotted to the petitioner. Similarly, in the punja land that was allotted to Manamohan Hegde and to Balakrishna Hegde under the previous arbitration award, the petitioner was not allotted any share in the award of Sri S.R. Hegde. Therefore, the contention of the petitioner that this punja land is not the subject matter for division of the properties is not correct. He has lastly submitted that all the parties have taken their respective shares under the arbitration award of Sri S.R. Hegde. Therefore, the petitioner seeking for possession of punja land to the extent of 2 acres does not arise, whereas the other sharers have not questioned the division of the properties and submitted that the scope of the revision is very limited and that the revision itself is not maintainable under Section 115 of the CPC. Accordingly, prayed to dismiss the revision.
5. In the light of the submissions, the point for consideration that arises is:
1. Whether the appointment of Sri S.R. Hegde, as Arbitrator is only for division of “E” schedule properties allotted by the award of Justice Sri K.S. Hegde or is also for division of properties in respect of punja lands of Herga village?
6. It is an undisputed fact that in the award of Sri K.S. Hegde, “E” schedule properties were allotted to the branch of Smt. Rukmini Heggadathi. Sri K.S. Hegde firstly considered regarding division of punja lands in Herga village. That various extents of punja lands came to be allotted to the branch of Smt. Rukmini Heggadathi. So also to other branches. The punja lands allotted to the branch of Smt. Rukmini Heggadathi are as follows:
1. In favour of Sri Balakrishna Hegde 1 acre 50 cents in Sy.No. 177/3C
2. In favour of Sri Harish Hegde (petitioner) 1 acre 87 cents in Sy.No. 177/3D and 0.13 cents in Sy.No. 177/3A (Total 2.00 acres).
3. In favour of Smt. Maya 0.09 cents in Sy.No. 260/8D, 1 acre 87 cents in Sy.No. 177/3F and 0.04 cents in Sy.No. 170/1A(Total 2.00 acres).
4. In favour of Smt. Rukmini Heggadathi 0.01 cent in Sy.No. 260/ 8F, 5.71 cents in Sy.No. 177/3I, 0.63 cents in Sy.No. 176/1C, 0.13 cents in Sy.No. 266/1B and 0.04 cents in Sy.No. 172/10 (Total 6 acres 52 cents),
The remaining extent of punja lands were allotted to persons of other branches.
7. The claim of the petitioner is confined only to the extent of 2 acres of punja lands situated in Herga village. The petitioner has not disputed the division of properties by the Arbitrator Sri S.R. Hegde in his award.
8. It is also not in dispute that as there was a difference of opinion regarding the division of “E” schedule properties in the award of Sri K.S. Hegde, all the persons of the branch of Smt. Rukmini Heggadathi filed a joint memo accepting for the appointment of an Arbitrator for division of the properties allotted to the branch of Smt. Rukmini Heggadathi. The Arbitrator Sri S.R. Hegde effected the division of the properties allotting “A” schedule to Smt. Rukmini Heggadathi, “B” schedule to her daughter Maya and her children, “C” schedule to the petitioner Harish Hegde, “D” schedule to her daughter Roopa and her children, “E” schedule to Manamohan Hegde and “F” schedule to Balakrishna Hegde, who are parties to the arbitration proceedings. The said fact is also not disputed.
9. Though in the award of Sri K.S. Hegde, the punja lands have been dealt with separately allotting an extent of 2 acres in favour of Harish Hegde, that is, 1 acre 87 cents in Sy.No. 177/3D, and 0.13 cents in Sy.No. 177/3A, in view of the Joint Memo filed for appointment of the arbitrator for division of the “E” schedule properties, Sri S.R. Hegde, pooled all the properties that fell to the share of Smt. Rukmini Heggadathi, i.e., the “E” schedule properties as well as punja lands and effected division of the properties as per the Schedules A, B, C, D, E and F, wherein “C” schedule properties were allotted to the share of the petitioner Sri Harish Hegde. When once the parties have chosen for the appointment of the arbitrator for division of the properties, the award of Sri S.R. Hegde having been made as the Rule of the Court, it is not open for the petitioner to contend that the punja lands are not the subject matter of the arbitration proceedings by Sri S.R. Hegde. It is pertinent to note that the award of Sri S.R. Hegde has become the rule of the Court in A.C.No. 4/90 and the award was passed on 30.4.1990. The petitioner having taken possession of “C” schedule properties and also having not questioned the award of Sri S.R. Hegde, the petitioner is estopped from contending that still he is entitled for punja lands. It is not the case of the petitioner that he was not aware of the contents of the arbitration award passed by Sri S.R. Hegde. While considering Point No. 9, it is specifically stated in the award thus:
“I have not allotted in the schedule any portion of the family properties in Herga village to party No. 3 and 5 and so for equalisation, I have allotted to them separate properties in other villages.”
10. It is in unambiguous terms stated that to equalise the properties, the other extents of lands have been allotted to the petitioner. It is also clear that the punja lands have not been allotted to petitioner No. 3, Sri Harish Hegde and petitioner No. 5, Sri Manamohan Hegde. It is pertinent to note that after the said award, the parties herein have acted upon and taken possession of their respective properties allotted in the award of Sri S.R. Hegde. Therefore, the contention of the learned Counsel for the petitioner that he is still entitled for punja lands of Herga village is without any merits.
11. In the decision relied upon by the learned Counsel in the case of Prince & Co., v. Governor General in Council, reported in AIR 1955 Punjab 240, Head Note C reads thus:
“Arbitrator or umpire must not go beyond the submission and although there is a presumption in favour of the validity of the award and the onus of proving that the arbitrator has exceeded his jurisdiction rests on the person alleging it. If an award extends to matters not within the scope of the submission, it must be held to be void to the extent that it is in excess of the submission. An Arbitrator can not give himself jurisdiction by a wrong decision as to the facts upon which the limit of his jurisdiction depends and where there is a difference between the parties as to the authority of the arbitrator under an agreed submission the decision rests with the Court and not with the arbitrator.”
12. There cannot be any dispute regarding the principle that an Arbitrator or an umpire must not go beyond the terms agreed between the parties. In the present case, after an award was passed by the Arbitrator Sri S.R. Hegde, the petitioner has been allotted with more extents of lands in lieu of punja lands of Herga village and that he has taken possession of those lands and the award has been acted upon. That apart though the award of Sri S.R. Hegde is dated 30.4.1990 and the same having been made as a rule of the Court in A.C.No. 4/ 90, it remained unchallenged by the petitioner. Thereby, the petitioner is completely estopped from making any claim in the punja lands. It is also clear from the award of Sri K.S. Hegde that the other punja lands that were allotted in favour of Sri Balakrishna Hegde and the petitioner were pooled together and a division was made by the award of Sri S.R. Hegde. In that view of the matter, the Arbitrator is being appointed in the final decree proceedings by filing a joint memo by all the parties concerned, it is not open for the petitioner to claim and execute the same in Ex.Petition No. 356/95, as punja lands of Herga Village are no more the subject matter of final decree proceedings.
13. For the foregoing reasons, it is held that the impugned order is just and proper and does not call for interference. Accordingly, the revision is dismissed.