FAO No.3731 of 2009 (O&M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.3731 of 2009 (O&M) DATE OF DECISION: 10.03.2010 **** Banwari Lal . . . . Appellant VS. Sunil Kumar Parnami and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.P.S. Khurana, Advocate for the appellant. Mr.Sandeep Jasuja, Advocate for respondents No.1 and 2. **** RAKESH KUMAR JAIN J. This appeal is directed against order passed by District Judge, Ferozepur, dated 11.2.2009 whereby an application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) against the award of the Arbitrator dated 1.2.2006/3.2.2006 has been dismissed. As per the pleaded case, in order to resolve a dispute regarding jointness of wall between the houses of Sunil Kumar Parnami son of Gurbax Lal and Banwari Lal son of Ch. Bhura Ram, a Salasnama (Arbitration Agreement) was entered into between the parties appointing Krishan Lal Bansal, Ex. Municipal Commissioner, Fazilka and Vijay Shanker Sharma, Building Expert, as Arbitrators agreeing to abide by their decision and not to object and challenge the FAO No.3731 of 2009 (O&M) - 2 – same. The Arbitrators vide their award dated 1.2.2006/3.2.2006 held as under: - “We Sh.Sunil Kumar son of Sh. Gurbax Lal and Sh. Banwari Lal son of Sh. Bhura Ram r/o Fazilka are giving decision as below as per the authorization of reference dated 24.12.2005 regarding dispute of joint wall: - (i) Banwari Lal produced photographs of the wall. Those photographs are after the repair. The photographs show the marks of taking away of the tiles from the roof. The “Darahs” of the wall were not in the disputed wall. Similarly, in the house in the rear and on enquiry it was revealed that the rear wall is joint with the neighbour. (ii) A room and stairs on the side of Sh.Sunil Kumar has already been repaired after demolition. (iii) The walls of all the houses in the mohalla are joint. (iv) Sh.Banwari Lal has failed to produce any original proof to show his ownership and also the area and also failed to produce any proof of his land and wall. (v) Sh. Banwari Lal has produced a general power of attorney dated 28.12.2005 which was written on 9.1.2006 on 30.1.2006, which does not find any mention regarding this wall. (vi) Thus, we are giving the decision that Sh. Sunil Kumar Parnami want to continue FAO No.3731 of 2009 (O&M) - 3 – construction on this wall, he should execute an affidavit on a stamp paper of Rs.15/- and mention that in case Sh. Banwari lal or his owner will produce written proof regarding this wall before the Arbitrator then on the asking of the arbitrators he will pay the half of the price of the bricks of the wall at the rate of Rs.1400/- per thousand and he will be bound to pay the price of the land of 6¾ % inch as per the price of the land. Till Parnami will submit the attested affidavit to the arbitrators, he cannot make construction on the disputed wall. Sd/- Vijay Shankar Sharma Building Expert Sd/- Salas Krishan Lal Bansal Ex. M.C. Fazilka. 1.2.2006” Aggrieved against the award, the appellant filed objection under Section 34 of the Act, which has been dismissed by the learned District Judge, Ferozepur observing thus: “A close scrutiny of the arbitration file Ex.R1 transpires that both the parties agreed to appoint respondents No.2 and 3 as the arbitrators and the dispute with regard to the jointness or the exclusiveness of the wall in question was referred to them with their sweet will. The petitioner has also admitted his signatures on the writing dated 24.12.2005 as well as the appointment of the aforesaid arbitrators. During the proceedings before the arbitrator, the statements of the witnesses produced by both the parties have been recorded. FAO No.3731 of 2009 (O&M) - 4 – Though both the parties did not cross examine the witnesses of either side, but one thing is evident that the arbitrators visited the spot and prepared the site plain which is available at page No.26 of the arbitration file Ex.R1 which shows that in between the property of the present petitioner as well as that of respondent No.1, there is a plot belonging to Rajat Kukker measuring 30 feet x 60 feet. The present petitioner is only owner of the plot / property measuring 10 feet x 60 feet, which is located on the southern side of the property belonging to Rajat Kukker. The dispute is with regard to the intervening wall in between the house of respondent No.1 and Rajat Kukker etc., who at no stage raised any objection. Sufficient opportunity was afforded by the arbitrators to the present petitioner to produce any document of title or ownership. Even during the course of arguments, a question arose as to whether the present petitioner is the owner of the property, which has been shown to be the ownership of Rajat Kukkar etc. and abutting the property of respondent No.1 but to the utter surprise, no document could be produced and it was simply argued that the present petitioner has already made the payment of the sale consideration. But it is well settled that immoveable property, the value of which is Rs.100/- or more, compulsorily requires registration under the provisions of the Registration Act. So, in such circumstances, the present petitioner has otherwise got no locus standi either to file the present petition or to raise any dispute. A power of attorney has been placed on record alleged to have been executed by Rajat Kukker etc. but after commencement of the proceedings before the arbitrator, on the basis of the power of attorney, he cannot claim himself to be the ownership of the property abutting on the southern FAO No.3731 of 2009 (O&M) - 5 – side of the disputed wall. The petitioner can also be said to have been estopped from challenging the award in question as all the proceedings were carried out by the arbitrators in his presence and even the award dated 1.2.2006/3.2.2006 was also given in his presence and he also received the copy of the said award on the date of its pronouncements. Various grounds taken by the petitioner for challenging the award are not available to him. It also cannot be said that he was not afforded an ample opportunity to adduce his evidence. Rather, it can be said that even after the pronouncement of the award in question, he has been afforded an opportunity to prove his exclusive ownership of the wall in question. It is also cannot be said that the award is incomplete or that the matter which was referred for arbitration has been left undecided. In view of the discussions as held above, this Court does not find any ground for setting aside the impugned award and as such issue No.1 is decided against the petitioner, whereas issues No.2 and 3 are decided in favour of the respondents.” In this appeal, learned counsel for the appellant has vehemently argued that the Arbitrator has travelled beyond the terms of the reference and has thus mis-conducted himself. It is submitted that learned Court below has erred in appreciating the evidence on record while disposing of their objection filed under Section 34 of the Act. Notice of motion was issued. Pursuant of which counsel for respondents has put in appearance. I have heard both learned counsel for the parties. FAO No.3731 of 2009 (O&M) - 6 – Learned counsel for the appellant was at pains to argue that the appellant is in possession of the house in dispute, which though is not owned by him. He claims his right to object to the construction of the wall on the strength of Power of Attorney given by Rajat Kukker after the initiation of the proceedings. Thus, the question arises as to what was his competence to initiate the proceedings when there was no Power of Attorney in his favour as he is not the owner of the property in question. Learned counsel for the appellant failed to answer this question. Admittedly, his house is not adjoining the house of the respondent. Therefore, there is no question of any jointness of wall. Thus, I find that the findings recorded by the learned District Judge, Ferozepur are perfectly in order and do not call for any interference in appeal by this Court. In view of the above, the present appeal is found to be without any merit and as such the same is hereby dismissed. (RAKESH KUMAR JAIN) March 10, 2010 JUDGE vivek