B.K. Mullick, J.
1. These 14 second appeals arise out of 14 suits brought by the Mukarraridars of the 10 annas odd piece share of Mauza Chehal against their tenants for declaration of title and recovery of possession of certain holdings. It appears that the holdings were held partly on naqdi and partly on Bhauli rent and on various dates in the year 1910 the tenants executed Kabuliyats in favour of the plaintiffs commuting the bhauli rents into naqdi rents at rates of Rs. 12/- and Rs. 10-8-0 per bigha. Shortly after the execution of these kabuliyats the plaintiffs obtained rent decrees against the defendants for the arrears of part of the year 1315, the whole of the years 1316, 1317 and for part of the year 1318, Fasli. These decrees were obtained after contest and it seems that at the time when judgment was given certain suits were pending in which the tenants impeached the validity of the kabuliyats and asked that they should be set aside. In making the decrees in the rent suits the Court made an express reservation that the question of the validity of kabuliyats was not decided; that question was decided about a month later when the declaratory suits were dismissed. The relevant dates of disposal were different for the different tenants but taking as an example the principal tenant Jaldhari Rai, who is concerned with suit No. 140 of 1919 corresponding to S.A. 760 of 1920. I find that the rent decree in his case was passed on the 18th April, 1912 and his declaratory suit was dismissed on the 30th May, 1912.
2. Nothing further appears to have been done by either party in the Civil Court for some time, and the contest was shifted to the Criminal Courts and after various orders had been taken before the Sub-Divisional Magistrate of Nawadah we find that on the 30th June 1913 a number of tenants, including Jaldhari made an application to the Collector of Gaya praying that disputes between the landlords and themselves might be settled by the Executive Authority. It is to be noticed that in this application the only prayer was that the Malik might be induced to take his decree money in instalments. No other matter in dispute was mentioned to the Collector. The petition was sent by the Collector to the Sub-Divisional Officer of Nawadah and after considerable difficulty the parties were prevailed upon to resort to arbitration.
3. Now the first petition for a reference to arbitration was one made by the tenants on the 1st October, 1915 to the Sub-Divisional Officer of Nawadah. At that time a proceeding under section 107 Criminal Procedure Code, was pending against Abdul Aziz, the son of one of the proprietors, and he had been called upon by the Magistrate to show cause why he should not give security to keep the peace towards his tenants, and on the 2nd October, 1915 the plaintiffs replied with an application before the same Officer and agreed to an arbitration and to the appointment of Rai Saheb Beni Madhab Prasad. It is clear that; these two petitions taken together form the foundation and the basis of the arbitrator's jurisdiction.
4. There are also 4 other petitions which were made to the arbitrator himself and which amplify the matters in dispute but do not in any sense constitute the original reference to arbitration. They detail on the one side or the other the various grievances of the parties and ask the arbitrator to take them into consideration.
5. It will be as well at this stage to like these six petitions in their chronological order.
6. Exhibit X.-The tenants' petition dated the 1st October 1915, recites that a case for executing a fresh patta in respect of the lands held on the naqdi system in the said Mauza and for making the dues payable by instalments is pending before Sub-Divisional Magistrate of Nawadah and that the petitioners have appointed Rai Saheb Beni Madhab Parasad as arbitrator "to decide of his own accord regarding the execution of fresh patta either naqdi or bhauli and settle the dues and make them payable by instalments and the Maliks (Mukarraidars) and the petitioners (the raiyats) will accept the same." It is to be noted that by this time the landlords had executed their rent decrees and had brought the holdings of all the defendants in the present suits to sale and taken delivery of possession and I think it is clear that this petition refers to the necessity for the execution of a fresh patta in order that arrangements might be made between the landlords and the tenants for the resettlements of the holdings upon a new contract. It is also to be noticed that the petition does not in any way state that there was any dispute pending between the parties as to the amount of the arrears decreed by the Civil Court. The only dispute mentioned was, whether payment was to be made in one instalment or was to be distributed over a number of years; and as for the dues to which reference is made, it is clear that these dues refer to the rents accruing between the time of the rent decrees and the date of the award.
7. Exhibit B.-The landlords' petition of the 2nd October 1915 is more general in its terms and the following words in the vernacular are sufficient to explain what in the opinion of the landlords was the dispute submitted to arbitration. These words are:-
Is Kisse ko jo badatmian hamlog he pesh hai kisi panch ke sapurd kiya jae. Banabir fidwian raiyan o fidwian Mukararidaran ne Rai Saheb Babu Beni Madho Prasad Saheb, Hony. Magistrate Nawada ko bakhushi khahish apene apne panch waste infusal amoorat teefia talab ko mokurar kia.
8. It refers to the dispute as "Is kisse" that is to say, this matter or this story; and by implication the reference is to the disputes mentioned by the tenants in their petition of the previous day. The landlords meant that the matters submitted to arbitration were the matter of the execution of a fresh patta and the settlement of the question of instalments. No other matter was within the jurisdiction of the arbitrator.
9. The next petition (Ex. 16) is one by the tenants to the arbitrator on the 25th October 1915, asking him to settle the following points:-
(1) the execution of the patta;
(2) the settlement of dues;
(3) the question of instalments;
(4) the remission of 2 kathas in every bigha according to the practice of Survey department;
(5) the question of expenses for Gilandazi.
10. To this the landlords made two replies;
(1) by a petition dated the 2nd October, 1915 by the landlords of the 5 annas 4 pies share and (2) by a petition (Ex. 30) dated the 7th November 1915 by the plaintiffs who are now before us. There was nothing of much interest in the petition of the 5 anna 4 pies landlords; but in exhibit 30 the plaintiffs asked for a determination on the following points namely,
(1) Mesne profits;
(2) the houses erected by Jaldhari since the delivery of possession to the landlords:
(3) Certain wrong entries in the settlement records in favour of a thikadar named Karu Rai;
(4) the length of the standard of measurement, and
(5) the rate of rent at which the lands should be resettled with the raiyats.
11. Now, with regard to the last point, it is quite clear that the landlords asked for an enhanced rate and also contended that unless the tenants who asked for resettlement paid up the whole amount of the dues, resettlement should be refused or, at all events, resettlement should be given only in proportion to the amount paid.
12. There were two further petitions, one by the tenants dated the 12th December 1915 and the other exhibit B 1 by the plaintiffs on the same date. In the former the tenants pleaded that the kabuliyat rent was too high and asked that a fair rent be fixed. They also asked for instalments; but in paragraph 4 of the petition there was an altogether new request, namely, that the dues payable should be calculated not from the date on which the tenants became liable but from the date on which terms of a fresh patta were fixed by the arbitrator. This is the interpretation which I give to paragraph 4 of the petition and it has at least the merit of explaining the arbitrator's decision to remit the claim for the years preceding 1318. The reply of the landlords (Ex. B. 1) asserted that the naqdi rent as fixed by the kabuliyat was fair and in paragraph 5 it was prayed that the arbitrator may after considering all the facts and referring to the papers, decide the matter accordingly.
13. Now, on a perusal of these 6 petitions, it is quite clear that the arbitrator had no authority to remit any part of the money which the plaintiffs were entitled to claim by the decree of the 18th April 1912. The arbitrator submitted his award on the 29th April 1916. He remitted the claim in respect of 1315, 1316, 1317 and for 1318 he allowed rent not at the kabuliyat rate (which was claimed in the plaint) but at the rate of Rs. 10, for lands assessed in the kabuliyat at Rs. 12-8-0 and at Rs. 7-8-0 for lands assessed at Rs. 10. From the year 1319 up to the date of his award he allowed the plaintiffs compensation at the reduced rates fixed by him but for the naqdi lands he accepted the rates entered in the plaintiffs' previous jamabandis; and with regard to the question of instalments, he directed that the defendants should pay down in cash a quarter of the sum and that for the remainder they should execute a kistbandi for payments spread over a period of 7 years; and he also directed that the tenants should mortgage their holdings if it "was legally necessary to do so."
14. Although it is alleged by the defendants that the plaintiffs accepted this award and payments were made by the defendants upon the basis of this award, it has been found as a fact by the lower appellate Court that these allegations are false; and we must now take it that the award was not accepted by the plaintiffs. It is said that the 5 annas 4 pies maliks have accepted the award; but with them we are not concerned. The material point is that on the 5th April 1919 the plaintiffs filed the suits now before us impeaching the award, and praying that it should be declared null and void; and they also prayed for declaration of their title as auction purchasers and for recovery of possession against the defendants.
15. The Munsif tried all the suits together and found that the award was valid.
16. On appeal by the landlords that decree has been set aside and the Subordinate Judge has decreed the suits and directed the trial Court to determine the mesne profits.
17. Now it is a fact that since the year 1315 the tenants have not paid one penny out of the rent due to the landlord and that they have been in occupation of these lands in spite of delivery of possession given to the landlords by the Civil Court; after the rent suits there was a cadastral survey and settlement of the village, and they were recorded as trespassers in occupation. Unless the award is valid they cannot resist ejectment and to me it is quite clear that the learned Subordinate Judge is right in the view that he took of the case.
18. There can be no doubt that upon the terms of reference as stated in Exhibit X and Exhibit B, which are the only two documents on which his jurisdiction is founded, the arbitrator had no authority whatsoever to remit any portion of the decree money. The question was never in dispute and the tenants, when they asked the Collector and the Sub-Divisional Officer to assist them in the mutter of an arbitration, never dreamt of disputing their liability. The rent suits were hotly contested; no reduction was claimed at the trial and it was not till their petition of the 12th December to the arbitrator that the idea came into the heads of the defendants to ask that the dues should be paid not from the date on which they accrued but from the date on which the award was given.
19. That being so, the award was in excess of jurisdiction and was bad; and the question is, whether the bad part can be separated from the good part and the Court can give modified relief by affirming the good part. I think it is not possible to do so in the present case. Whatever the law in England may be, it is now settled in India that where an arbitration is made without the intervention of a Court and an application is made to file the award, then if the award is good in part and bad in part, the Court cannot remit it to the arbitrator for amendment or declare valid the part to which no exception is taken even if it is separable from the bad part. The High Courts in India are agreed upon this point and it is necessary only to cite Dinabandhu Jana v. Chintamoni Jana [1915] 19 C.W.N. 476: 26 I.C. 697 and Kunj Lall v. Banwari Lall [1918] 4 P.L.J. 394: 48 I.C. 711. In this last mentioned case the learned Judges pointed out that it was unfortunate perhaps that in this country clause 21 of the 2nd Schedule of the Civil Procedure Code does not give any power to confirm an arbitration in part where it has been made without the intervention of the Court but that the law was that even where a portion of the award open to exception can be separated from the rest, the only course open to the Courts was to refuse permission to file the award. If, therefore, in the present case, the tenants cannot enforce the award in Court, they ought not, in my opinion, to be allowed to set up the award as a defence in this suit.
20. The other ground upon which exception must be taken is that the arbitrator has given a direction with regard to the execution of a mortgage bond for the liquidation of the arrears which is wholly uncertain and contingent. He says that if it is legally necessary then the tenants will execute a mortgage as security for payment of the instalments. Now, what, does this mean Does it mean that it is contingent on legal opinion obtained by the plaintiffs or legal opinion obtained by the defendants It may be assumed that the legal advisers of the plaintiffs will declare the necessity of a mortgage and those of the tenants will deny it. Who is to decide the point. The arbitrator has not decided it, and, therefore, the award is provisional and uncertain. There is yet another objection. The plaintiffs are co-sharer landlords and have purchased the holdings of the tenants and are entitled to retain them on payment, to the 5 annas 4 pies landlords, the proportionate share of the rent due to them. If the tenancies are occupancy holdings not capable of transfer without the consent of the landlord, then obviously a mortgage by the tenants in favour of the plaintiffs will not bind the 5 annas 4 pies landlords and will be wholly ineffectual in giving the plaintiffs any security unless the latter gave their consent to the transfer. There also the award is provisional, uncertain and contingent.
21. As for the other points argued before us I think the arbitrator had authority to reduce the rent as he has done. The Kabuliyat executed by the tenants was for the period 1318 to 1326 F.S. inclusive, and while holding that the rents in that contract were fair, the arbitrator made an appeal for mercy and compelled the landlord to show some generosity; his decision may not have been logical but upon the terms of the submission he was entitled to make the reduction.
22. The result, however, is that the plaintiffs are not bound by the award and are entitled to recover possession of the suit lands. The plea of payment which was set up by the tenant, though believed by the Munsif has been disbelieved by the Subordinate Judge and we are bound by that finding of fact in second appeal.
23. In these circumstances the learned Subordinate Judge's decree is right and the appeals must be dismissed with costs.
24. With regard to the question of mesne profits, the Subordinate Judge has already decided that the matter is to be determined by the trial Court and therefore, the inquiry upon that point will take its course.
John Bucknill, J.
25. I agree.
