JUDGMENT
1. The question in this appeal is whether the plaintiff’s claim is barred by the rule of res judicata. The facts are these. The plaintiff and other parties had disputes about the partition of certain property which belonged to them. They prepared lots and appointed an arbitrator for the purpose of assigning the lots to the different persons interested. On the 17th of December 1904, an agreement of reference was drawn up and one Babu Ramanuj Dayal was appointed arbitrator. On the 23rd of December 1904, lots were drawn and lot No. 1 fell to the share of the plaintiff and his co-sharers. One of the properties comprised in that lot was 20 biswas of the village Sherpur. On the 14th of December 1905 an award was made, but in that award by a mistake instead of entering the whole of the 20 biswas of the village Sherpur in lot No. 1, only a half of that village was entered by the clerk who copied out the lots embodied in the award. The mistake was discovered and the attention of the arbitrator was drawn to it. He accordingly made a supplementary award on the 11th of March 1905, which was in fact an amendment of the first award. By that supplementary award he assigned to the lot of the plaintiff and his co-sharers the whole of the village Sherpur. The practical result of the two awards was this, that by the first award only a half share of the village Sherpur was assigned to lot No. 1, and by the second award the remaining half was also allotted to lot No. 1. On the 11th of April 1905, the owners of lot No. 1 made an application to the Court under Section 525 of Act XIV of 1882 for the filing of both the awards. The Court filed the first award and made a decree in accordance with it, but refused to file the supplementary award. Thereupon the suit out of which this appeal has arisen was brought by the plaintiff and he claimed in it a 5 biswa share in mouzah Sherpur on the basis of the supplementary award, he and his co-sharers being admittedly in possession of a 10 biswas share in the village.
2. There is no question that all the parties to the reference to arbitration intended that the plaintiff and his co-sharers should get the whole of the village sherpur and there is no question also that it was the intention of the arbitrator to award to the plaintiff the 5 biswas now claimed by him in addition to what he has already got. The court below however, has dismissed the suit on the ground that the decision of the subordinate Judge refusing to file the supplementary award operates as res judicata. We are unable to agree with the learned additional Judge. Having regard to the judgement of the subordinate Judge in the case under Section 525 of Act XIV of 1882, we must hold that the Court refused to file the supplementary award by which, as we have pointed out above, an additional 10 biswa share in Sherpur was allotted to the share of the plaintiff and his co-sharers, the owners of lot No. 1. From this order of refusal no appeal lay, as held in the case of Bassantlal v. Kunjilal 28 A. 21 : 2 A.L.J. 450 : A.W.N. (1905) 165, in which the previous rulings on the subject were cited. This view was adhered to in the recent case of Kunjilal v. Durga Pershad 32 A. 484 : 7 A.L.J. 425 : 6 Ind. Cas. 127. In the case last mentioned it was further held that a refusal of a Court to file an award will not operate as res judicata in respect of a subsequent suit brought to enforce the award. The same view was held in the case of Mustafa Khan v. Musammat Phuljha Bibi F.A. No. 209 of 1909 decided by this Bench on the 19th of January last which has not yet been reported. Haying regard to these rulings, the view taken by the Court below cannot be supported. There is no doubt as to the question of the plaintiff’s title to the property claimed on the strength of the supplementary award. The result is that we allow the appeal, set aside the decree of the Court below and decree the plaintiff’s claim with costs in both Courts including in this Court fees on the higher scale.
