Appeals Nos 224 and 225 of 1954
Appeals from the judgment dated December 31 1947 of the former Nagpur High Court in Misc
First Appeal No 310 of 1943 arising out of the Award dated March 31 1943 of the Court of the Arbitrator Addl
and Sessions Judge Khandwa
Achhru Ram and Naunit Lal for appellant In C A No 22454 and respondent In C A No 22554
C K Daphtary Solicitor General for India R Ganapathy Iyer and R H Dhebar for respondent In C A No 22454 and appellant In C A No 22554
August 22
The Judgment of the Court was delivered by VENKATARAMA AIYAR J
Both these appeals are directed against the judgment of the High Court of Nagpur passed in an appeal under section 191 f of the Defence of India Act 1939 hereinafter referred to as the Act
In exercise of the power conferred by section 75A of the Rules framed under the Act the Central Government requisitioned on February 19 1941 certain properties belonging to Hanskumar Kishanchand the appellant in Civil Appeal No 224 of 1954
As there was no agreement on the amount of compensation payable to him the Central Government referred the determination thereof to Mr Jafry Additional District Judge Khandwa under section 191 b of the Act
On March 31 1943 Mr Jafry pronounced his award by which lie awarded a sum of Rs 13000 as annual rent for the occupation of the premises
Against this award there was an appeal to the High Court of Nagpur under section 191 f of the Act and that was heard by a Bench consisting of Grille C J and Padhve J
By their judgment dated December 31 1947 they enhanced the annual rent payable to the appellant by a sum of Its 3250 and they also allowed certain other sums as compensation for dislocation of the High School which 150 1180 was being run on the property
The appellant applied for leave to appeal against this judgment to the Federal Court under sections 109 and I 10 of the Code of Civil Procedure in respect of the amounts disallowed
A similar application was also filed by the Government with reference to the enhancement of compensation
On August 25 1949 both these applications were granted and a certificate was issued that the appeals fulfilled the requirements of sections 109 and 110 of the Code of Civil Procedure
That is how the two appeals come before us
Hanskumar Kishanchand is the appellant in Civil Appeal No 224 of 1954 and the Union of India in Civil Appeal No 225 of 1954
At the opening of the hearing a preliminary objection was taken by the learned Solicitor General to the maintainability of Civil Appeal No 224 of 1954 on the ground that the judgment of the High Court passed in appeal under section 191 f was an award and not a judgment decree or order within the meaning of sections 109 and 110 of the Code of Civil Procedure and that accordingly the appeal was incompetent
If this contention is right Civil Appeal No 225 of 1954 preferred by the Government would also be incompetent
That of course does not preclude the Government from raising the objection as to the maintainability of the appeal though the result of our upholding it would entail the dismissal of Civil Appeal No 225 of 1954 as  well
We accordingly proceed to dispose of the objection on the merits
It will be convenient at this stage to refer to the provisions of the Act bearing upon the present controversy
Section 191 provides that  Where any action is taken of the nature decribed in sub section 2 of section 299 of the Government of India Act 1935 there shall be paid compensation the amount of which shall be determined in the manner and in accordance with the principles hereinafter set out   Section 191 a provides for the amount of compensation being fixed by agreement and section 191 b enacts that   Where no such agreement can be reached the Central Government shall appoint as arbitrator a 1181 person qualified under sub section 3 of section 220 of the above mentioned Act for appointment as a Judge of a High Court
 Sub section c of section 191 provides for the appointment by the Central Government of a person having expert knowledge as to the nature of the property acquired and for the nomination of an assessor by the person to be compensated for the purpose of assisting the arbitrator
Sub section e of section 191 enacts that the arbitrator in making his award shall have regard to the provisions of sub section
1 of section 23 of the Land Acquisition Act 1894 so far as the same can be made applicable
Then comes sub section
f which is important for the present purpose and it is as follows An appeal shall lie to the High Court against an award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government
 Then we have sub section
g which is as follows  Save as provided in this section and in any rules made thereunder nothing in any law for the time being in force shall apply to arbitrations under this section
 On these provisions the contention on behalf of the Government is that the reference under section 191b and the appeal under section 191 f are all arbitration proceedings that the decision of the High Court in the appeal is really an award and that it is in consequence not appealable under sections 109 and 110 of the Code of Civil Procedure as they apply only to judgments decrees or orders of Courts and not to awards
Mr Achbru Ram learned counsel for the appellant does not dispute that the proceedings under section 191 b are by way of arbitration but he contends that when once the matter comes before the High Court by way of appeal under section 191f it becomes a civil proceeding under the ordinary jurisdiction of the Court and that any decision therein is open to appeal under sections 109 and I 10 of the Code of Civil Procedure
He further contends that even apart from those provisions the appeal was competent under Cl 29 of the Letters Patent and that 1182 the certificate granted by the High Court is under that provision as well
Before discussing the authorities cited on either side in support of their respective contentions it will be useful to state the well_established principles applicable to the determination of the present question
When parties enter into an agreement to have their dispute settled by arbitration its effect is to take the lis out of the hands of the ordinary Courts of the land and to entrust it to the decision of what has been termed a private tribunal
Such an agreement is not hit by section 28 of the Contract Act as being in restraint of legal proceedings because section 21 of the Specific Relief Act expressly provides that  save as provided by the  no contract to refer present or future differences to arbitration shall be specifically enforced  but if any person who has made such a contract  and has refused to perform it sues in respect of any subject which he has contracted to refer the existence of such contract shall bar the suit
 There is a similar provision in section 28 of the Contract Act which is applicable where the is not in force
Where an arbitration is held in pursuance of such an agreement and that results in a decision that decision takes the place of an adjudication by the ordinary Courts and the rights of the parties are thereafter regulated by it
It is true that under the law the Courts have the authority to set aside the award  made by arbitrators on certain grounds such as that they are on matters not referred to arbitration or that the arbitrators had misconducted themselves or that there are errors apparently the face of the award
But where the award is not open to any such objection the Court has to pass a decree in terms of the award and under section 17 of the  an appeal lies against such a decree only on the ground that it is in excess of or not otherwise in accordance with the award
In other words it is the decision of the arbitrator where it is not set aside that operates as the real adjudication binding on the parties and it is with a view to its enforcement that the Court is authorised to pass a decree in terms thereof
There is thus a sharp distinction between a 1183 decision which is pronounced by a Court in a cause which it hears on the merits and one which is given by it in a proceeding for the filing of an award
The former is a judgment decree or order rendered in the exercise of its normal jurisdiction as a Civil Court and that is appealable under the general law as for example under sections 96 100 104 109 and 110 of the Code of Civil Procedure
The latter is an adjudication of a private tribunal with the imprimatur of the Court stamped on it and to the extent that the award is within the terms of the reference it is final and not appealable
The position in law is the same when the reference to arbitration is made not under agreement of parties but under provisions of a statute
The result of those provisions again is to withdraw the dispute from the jurisdiction of the ordinary courts and to refer it for the decision of a private tribunal
That decision is an award and stands on the same footing as an award made on reference under agreement of parties
It is for this reason that section 46 of the X of 1940 enacts that  The provisions of this Act except subsection 1 of section 6 and sections 7 12 36 and 37 shall apply to every arbitration under any other enactment for the time being in force as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder
 Nor does it make any difference in the legal position that the reference under the statute is to a Court as arbitrator
In that case the Court hears the matter not as a Civil Court but as persona designata and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts
A statute however might provide for the decision of a dispute by a Court as Court and not as arbitrator in which ease its decision will be a decree or order of Court in its ordinary civil jurisdiction and that will attract the normal procedure governing the decision of that Court and a right of appeal will be comprehended therein
The position therefore is that if the 1184 reference is to a Court as persona designata its decision will not be open to appeal except to the extent that the statute so provides but that if on the other hand it is to a Court as Court its decision will be appealable under the general law unless there is something in the statute which abridges or takes away that incident
It may be a question whether the reference to a Court under a particular statute is to it as a Court or as persona designata  but when once it is determined that it is to it as persona designata there call be no question that its decision is not open to appeal under the ordinary law
We shall now consider the authorities hearing on the question
On behalf of the Government the decisions in Rangoon Botatoung Company vs The Collector Rangoon 1 The Special Officer Salsette Building Sites vs Dossabhai Bezonji 2 The Special Officer Salsette Building Sites vs Dassabhai Bozanji Moti
wala 3 Manavikraman Tirumalpad vs The Collector of the Nilgris 4 and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited 5 were relied on as supporting the contention that the present appeals are incompetent
In Rangoon Botatoung Company vs The Collector Rangoon 1 the facts were that certain properties had been acquired tinder the Land Aequistion Act of 1894 and the Collector had determined the amount of compensation payable to the quondam owners
On their objection as to the quantum of compensation the matter was referred to the decision of the Chief Court of Burina
It was heard by a Bench of two Judges who determined that a sum of Rs 1325720 was payable as compensation
Dissatisfied with this decision the owners preferred an appeal to the Privy Council under the provisions of tile Code of Civil Procedure
A pre limilary objection was taken to the maintainability of the appeal on the ground that the decision sought to be appealed against was not a judgment of Court but an award and was therefore not appealable
In giving effect to this objection the Board observed  Their Lordships cannot accept the argument or 1 1912 39 IA 197
2 Bom
3 4 Mad
5 193I LR 58 IA 259
1185 suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction
 Shortly after this judgment was pronounced the question arose for determination in The special officer Salsette Building Sites vs Dossabhai Bezonji 1 whether a decision given by the High Court in appeal under section 54 of the Land Acquisition Act was a judgment within Cl
39 of the Letters Patent so as to enable a party to appeal to the Privy Council under that provision
The applicant sought to distinguish the decision in Rangoon Botatoung Company vs The Collector Rangoon 2 on the ground that there the decision sought to be appealed against was that of the Chief Court of Burma and the question of maintainability fell to be decided on the terms of the Code of Civil Procedure whereas in the instant case the party had a right to appeal to the Privy Council under Cl
39 of the Letters Patent
In rejecting this contention the High Court referred to the observations in Rangoon Botatoung Company s Case 2 already quoted and observed  This passage shows that it is a mistake to suppose that the award made in such a case by the High Court is a decree within the ordinary jurisdiction to which the Civil Procedure  ode refers and it seems to me it would be equally erroneous to regard such an award as a final judgment or order within the meaning of clause 39 of the Letters Patent
 Leave to appeal to the Privy Council was accordingly refused
There was an application to the Privy Council for special leave in this matter but that was also rejected and the report of the proceedings before the Privy Council in The special Officer salsette Building Sites vs Dassabhai Basanji Motiwala 3shows that the interpretation put by the Bombay High Court in The Special officer salsette Building sites vs Dossabhai Bezonji 1 was accepted as correct
In Manavikraman Tirumalpad vs The Collector of the 1 130m 506
2 1912 LR 39 IA 197
3 1913 17 CWN 42I 1186 Niligris1 the question was whether a judgment of the High Court passed in an appeal under the Land Acquisition Act was a judgment within the meaning of Cl 15 of the Letters Patent so as to entitle a party to file a further appeal to the High Court under that provision and it was held on a consideration of the authorities above referred to that it was not
Secretary of State for India in Council vs Hindusthan Cooperative Insurance Society Limited 2 is a decision under the Calcutta Improvement Act 1911
Under that Act there is a tribunal constituted for determining the amount of compensation payable on acquisition of land and under the Calcutta Improvement Appeals Act 1911 an appeal is provided in certain cases from the decision of the tribunal to the Calcutta High Court
The point that arose for determination was whether the decision given by the High Court in appeal under this provision was open to further appeal to the Privy Council
In answering it ill the negative the Privy Council observed that in view of the decision in Rangoon Botatoung Company vs The Collector Rangoon 3 there could be no right of appeal against the decision of the High Court
It further held that this conclusion was not affected by the amendment of the Land Acquisition Act 1921 providing for an appeal to the Privy Council against the decision of the High Court under section 54 of that Act as that amendment could not be held to have been incorporated by reference in the Calcutta Improve ment Act 1911
The law as laid down in the above authorities may thus be summed up It is not every decision given by a Court that could be said to be a judgment decree or order within the provisions of the Code of Civil Procedure or the Letters Patent
Whether it is so or not will depend on whether tile proceeding in which it was given came before tile Court in its normal civil jurisdiction or de hors it as a persona designata
Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company vs The Collector Rangoon 3 or where it comes 1 Mad
2 1931 LR 58 IA 259
3 1912 LR 39 IA 197
1187 by way of appeal against what is statedly an award as in  The Special Officer Salsette Building Sites vs Dossabhai Bezonji 1 Manavikraman Tirumalpad vs The Collector of the Nilgris 2 and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited 3 then the decision is not a judgment decree or order under either the Code of Civil Procedure or the Letters Patent
Now Mr Achhru Ram contests this last proposition and relies strongly on the decision in National Telephone Company Limited vs Postmaster General 4 as supporting his position
There the question arose on the construction of certain provisions of the Telegraph Arbitration Act 1909
Section I thereof enacted that certain differences between the Postmaster General and any other person should if the parties agreed be referred for decision to the Railway and Canal Commission constituted under an Act of 1888  and section 2 provided that all enquiries under the reference should be conducted by the Commission in accordance with the Act of 1888
Pursuant to a reference under these provisions the Railway and Canal Commission had determined certain disputes and the question was whether its decision was open to appeal
Under the Act of 1888 the Commission was constituted a Court of record and an appeal lay against its decision to the Court of Appeal except on questions of fact and locus standi
It was held by the House of Lords that as under the Act of 1888 the reference to the Commission was to it as a Court the reference under the Telegraph Arbitration Act 1909 to that tribunal must also be held to be to it as a Court and not as a body of arbitrators and an appeal against its decision was therefore competent
The position was thus stated by Viscount Haldane L C  When a question is stated to be referred to an established Court without more it iii my opinion imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches
 1 Bom
2 Mad
3 1931 LR 58 IA 259
4 151 1188 It may be noted that it was the use of the word  arbitration  in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration
But that description however could not alter the true character of the reference under the Act which was in terms to the Commission as a Court of record
In fact there was no element of arbitration in the proceedings
It is true that under that Act there could be a reference only by agreement of parties
That however could not make any difference in the character of the proceedings before the Commission as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties as for example on a case stated under Order 36 of the Code of Civil Procedure
There is thus nothing in National Telephone Company Limited vs Postmaster General 1 which can be said to conflict with the law as laid down in Rangoon Botatoung Company vs The Collector Rangoon
2 that when the reference is to a Court as arbitrator its decision is not open to appeal
The distinction between the two classes of cases where the reference is to court as court and where the reference is to it as arbitrator was again pointed out by the Privy Council in Secretary of State for India vs Chelikani Rama Rao 3
There the question arose with reference to certain provisions of the Madras Forest Act 1882
That Act provides that claims to lands which are
sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer and an appeal is provided against his decision to the District Court
The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure
The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator and that therefore its decision was not open to appeal on the principle laid down in Rangoon Botatoung Company s Case In repelling this contention 1 2 1912 LR 39 IA 197
3 1916 LR 43 IA 192
1189 Lord Shaw observed that under the Land Acquisition Act the proceedings were from beginning to end ostensibly and actually arbitration  proceedings  but that the proceedings under the Forest Act were essentially different in character
 The claim was  he said  the assertion of a legal right to possession of and property in land and if the ordinary Courts of the country are seized of a dispute of that character it would require in the opinion of the Board a specific limitation to exclude the ordinary incidents of litigation The principles being thus well settled we have to see in the present case whether an appeal to the High Court under section 191f of the Act comes before it as a Court or as arbitrator
Under section 191b the reference is admittedly to an arbitrator
He need not even be a Judge of a Court
It is sufficient that he is qualified to be appointed a Judge of the High Court
And under the law no appeal would have lain to the High Court against the decision of such an arbitrator
Thus the provision for appeal to the High Court under section 191f can only be construed as a reference to it as an authority designated and not as a Court
The fact that in the present case the reference was to a District Judge would not affect the position
Then again the decision of the arbitrator appointed under section 191b is expressly referred to in section 191f as an award
Now an appeal is essentially a continuation of the original proceedings and if the proceedings under section 191b are arbitration proceedings it is difficult to see how their character can suffer a change when they are brought up before an appellate tribunal
The decisions in The Special Officer Salsette Building Sites vs Dossabhai Bezonji 1 The Special Officer Salsette Building Sites vs Dassabhai Basanji Motiwala 2 Manavikraman Tirumalpad vs The Collector of the Nilgris 3 and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited 4 proceed all on the view that an appeal against an award continues to be part of and a 1 Bom
2 3 Mad
5 1931 LR 58 IA 259
1190 further stage of the original arbitration proceedings
ln our view a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration even when it is taken up in appeal where that is provided by the statute
The question whether an appeal under section 191f is of the nature of arbitration proceedings and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd vs Province of Madras 1 before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar JJ
and it was held by them that the word arbitration in section 191g of the Act covered the entire proceedings from their com mencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal
We agree with this decision that the appeal under section 191 f is an arbitration proceeding
We must therefore hold that the decision of the High Court in the appeal under that provision is not a judgment decree or order either within sections 109 and I 10 of the Code of Civil Procedure or cl 29 of the Letters Patent of the Nagpur High Court which corresponds to cl 39 of the Letters Patent of the Calcutta Madras and Bombay High Courts and that therefore the present appeals are incompetent
Mr Achbru Ram finally contended that even if no appeal lay under sections 109 and 110 of the Code of Civil Procedure or cl 29 of the Letters Patent it was nevertheless within the competence of this Court to grant leave to appeal and that this was a fit case for the grant of such leave
He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under section 191 f that under section 3aii of the Federal Court En largement of Jurisdiction Act I of 1948 that power became vested in the Federal Court and under article 135 it has devolved on this Court and that in the exercise of that power we should grant leave to appeal against 1 ILR 1191 the decision now under challenge
it is sufficient answer to this contention that the Federal Court had power under section 3a ii to grant leave only when the proposed appeal was against a judgment and that under the definition in section 2b meant a judgment decree or order of a High Court in a civil case and that on our conclusion that the decision in the appeal under section 191 f is not a judgment decree or order but an award no order could have been passed granting special leave under section 3a ii
In the result we dismiss both the appeals as incompetent
The parties will bear their own costs in this Court
Appeals dismissed


Summary:
One Wali Mohammad since deceased executed on May 22 1928 an usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots
According to Wali Moham mad he redeemed the said mortgage and took possession of the plots in the beginning of Fasli year 1354 period from 171946 to 3061947 and continued in possession thereof
On 28th December 1953 Ram Kumar moved an application under Section 232 of the UP Zamindari Abolition and Land Reforms Act 1950 for obtaining possession of the two plots in question from Wali Mohammad on the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and therefore he was the Adhivasi of the said plots
Wali Moham mad contested the application before the Sub Divisional Officer
The Sub Divisional Officer dismissed the suit finding that Wali Mohammad was in possession of the plots
This decision was affirmed by the Addl
Commissioner who held that the entry in the Khasra relied on by Ram Kumar was a fictitious one
On second appeal the Board of Revenue set aside the orders of the Sub Divisional Officer as also of the Addl
Commissioner
The Board held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the two plots in Fasli year 1356 was sufficient to confer Adhiv asi rights
Thereupon Wali Mohammad filed a Writ Petition in the High Court challenging the decision of the Board of Revenue
The Single Judge who heard the Writ Petition al lowed the Writ Petition holding that the Board had committed an error of jurisdiction and consequently quashed the orders of the Board
Ram Kumar preferred a Letter Patent appeal against the order of the Single Judge
The Division Bench allowed the appeal and set aside the order passed by the Single Judge
The Division Bench took the view that the entry in the revenue records was enough to confer rights of Adhivasi under Section 20b of the Act
212 Being aggrieved by the said decision of the High Court the legal representatives of Wali Mohammad who has since died has filed this appeal after obtaining Special Leave
Dismissing the appeal this Court HELD Section 20b of the Act deals with the question as to who is entitled to take or retain possession of the land in question
The plain language of clause 1 of Sub Section b of Section 20 of the Act suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of the Fasli year 1356
An analysis of the said section shows that Under sub section b of section 20 the entry in the Khasra of Khatauni of the Fasli year 1356 shall determine the question as to the person who is entitled to take or retain possession of the land
If the entry is fictitious or is found to have been made surrepti tiously then it can have no legal effect as it can be re garded as no entry in law but merely because the entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry
It is possible that the said entry may be set aside in appropriate proceedings
214G H 215A In the present case although the Addl
Commissioner has held that the entry was fictitious the conclusion seems to have been arrived at merely on the basis that Wali Mohammad was in possession in Fasli year 1356 with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct
There is nothing to show that the said entry was fictitious or was made fraudulently or was in correctly introduced by reason of iII will or hostil ity towards Wali Mohammad
In these circumstances the entry may not be correct but it could not be said to be fictitious or regarded as non est
Merely because the entry might be incorrect that would not make any difference to the deter mination of the question as to who is entitled to be de clared to be the Adhivasi of the land under the provisions of Section 20b of the said Act
216B D Bachan  Anr
vs Kankar  Ors
  and Vishwa Vijai Bharti vs Fakhrul Hasan  Ors 1976 Suppl
SCR 519 referred to