The Mokuddims of Kunkunwady v. The Enamdar Brahmins of Soorpal BS648486
PRIVY COUNCIL

Before:-Members of the Judicial Committee - The Lord President, (Lord Wharncliffe), Lord Broughm, the Vice Chansellor Knight Bruce and the Right Hon. Dr. Lushington, Privy Councillors - Assessors - Sir E.H. East, Bart., Sir A Johnston, Knt. and Sir E. Ryan. Knt.

0 D/d. 13/ 14.06.1845

The Mokuddims of Kunkunwady - Appellants

Versus

The Enamdar Brahmins of Soorpal - Respondent

On appeal from the Sudder Dewanny Court at Bombay

For the Appellant :- Mr. Charles Buller, Mr. Jackson and Mr. Forsyth.

For the Respondents :- Mr. Wigram, Q.C., Mr. E.J. Lloyd and Mr. Edmund F. Moore.

Alluvion and Diluvion - Punchayet award settling boundary of accretion - Bombay Regulation VII of 1827 (Panchayats), Contravention of provisions of-Award Invalid - Decision of Sub-Collector specially appointed to settle dispute, Supersession of award by - Formal objections not affecting merits to be discouraged.

[Para ]

An award made by the Punchayet, settling a disputed boundary to land forming an Island claimed by the inhabitants on the respective banks of the river, under circumstances, set aside, as having been made contrary to the provisions of Bombay Regulation VII of 1827.

The decision of the Sub-Collector, appointed by the Government to settle the boundary, annulling the award of the Punchayet, and assigning a boundary, confirmed on Appeal.

Semble.- This Court will not encourage a mere objection of form, that does not affect the substantial merits of the case.

This Appeal arose upon a question of disputed boundary. The land, the subject of litigation between the Appellants, the Mokuddims (proprietors) of the village of Kunkunwady, in pergunna Jumchundi, in the Presidency of Bombay, and the Respondents, the Brahmins of the enam (revenue-fee) village of Soorpal in pergunna Gotta, in the same Presidency, was a small gudda or island called Goheshwar, which had been formed by the river Krishna, dividing itself from its original channel, into two branches, each branch running a short distance in a semicircular course, until the two again formed a junction, thereby enclosing the island in question. At what time the course of the river became so altered did not appear.

The dispute between the two villages, respecting the boundary line which passed through this island, had been going on for several centuries. it appeared that the exact quantity of land in dispute consisted of one and three-quarters chawurs, and twelve and three-quarters tanks (equal to 80 acres). Both parties admitted that the true line of boundary would be defined by the course of what was formerly called the Jukhur Sarel, or stream, flowing through the island, but this stream had long since been choked up by earth and sand; and the two villages were at issue upon the question of what was its true course.

In the year 1833, orders were issued by the Principal Collector and Political Agent of Zilla Dharwar, in which Zilla, both the pergunnas of Jumoundi, and Gotta were situated, to the Mamlutdar (revenue officer)of the talook Indi, in the same Zilla, to institute and inquiry into the matters in dispute, between the two villages, respecting their boundary, and at his instance, both parties agreed to refer the question to the decision of a Punchayet or Court of Arbitration, consisting of the Zemindars of the two pergunnas, in all nine individuals, who were to repair to the island, and make their award.

Accordingly, on the 7th of November 1833, certain instruments were entered into on the part of the appellants and Respondents, by which they agreed to abide by the decision of these nine individuals, four of whom belonged to the pergunna of Respondents, and five to the pergunna of the Appellants. These instruments consisted of a deed of submission, executed on behalf of the Respondents; a similar deed executed on behalf of the Appellants; and a joint deed executed on behalf of his highness, the Row Saheb, the proprietor of Jumcundi, and on half of the Appellants and the Respondent's and the words of each instrument were. "We shall abide by whatever decision the above-mentioned nine individuals will pass."

Some parol evidence was entered into, and certain documents (including several plans of the locality of the property in dispute) were produced on behalf both the Appellants and Respondents.

Te Punchayet, however, took no steps towards deciding the case, and on the 20th of December 1833, a report was made by the Mamlutar of the talook to the Collector and Political Agent of Dharwar, calling his attention to the importance of the case, and urging that a settlement of the question should bee hastened. Some directions appeared to have been given towards this purpose, but nothing was done by the Punchayet, and after a long delay, in 1835, one of the nine refrees being then ill and unable to attend, the Principal Collector and Political Agent of Dharwar directed the Assistant-collector, Mr. Bazett, to proceed to the spot and pass a decision on the question. This was communicated by the principal collector and Political agent to the Mamlutdar of the talook.

On the 3rd of July 1835, an Order was made by Government, for Mr. Shaw, the sub-collector of Bagulcote, to proceed to the spot and settle the dispute, thus substituting him in the place of Mr. Bazett; and Mr. shaw at once proceeded to the spot; but before any decision was come to by the Punchayet, one of the nine arbitrator died.

The Punchayet made an award on the 1st of August 1835. This award noticed that the villagers of Soorpal maintained that their boundary extended as far as the Jukhur Sarel, and that the villagers of Kunkunwady maintained their bundary to be as far as the other side of the Krishna river, close by the village of Soorpal, as far as the temple of Sri Buleswara. It then notices certain evidence which had been given but did not purport to decide the question upon any evidence produced, on the one side or the other, but stated the ground of the decision as follows:-" It appears, on examining the land in dispute between the two village, that from the branching of the holy river Krishna, to its being joined to the sea, there are several villages on both sides to the river, but it does not appear anywhere that the boundary of a village on one side is inter-mixed with the boundary of another village on the other side. Such being the case, therefore, it is contrary to the known usage of the country, that the villagers of Soorpal should dispute with regard to land on the front of the Krishna river on the western side, and in like manner it is wrong for the villages of Knunkunwady to day that their boundary extends as far as the temple of Buleswara. Under these circumstances, the claims set up by the villagers of Kunkunwady and the villages of Soorpal have been set at nought, and it is hereby decided as follows:- That the great holy river of Krishna runs from the front of the village of Toopchee, and then breaks forth from the south to the eastward. Now the villagers of Kunkunwady should confine their boundary to the west of the said river as far as the low-water-mark in the month of Magh and Phagoon (the two months in India in which the water in the river descends to a particular mark), and the villagers of Soorpal should confine their boundary on the east of the other should claim their boundary beyond the edge of the river on each side."

Prior to the publication of this award, the inhabitants of Soorpal presented a petition to Mr. Shaw, wherein they complained that the arbitrators were under the influence of Gopal Raw Saheb, the proprietor of the Jumcundi, and stated that "they were then kept in the place of Kunkunwady, where no one had the courage to go and speak to them. Under these circumstances," they proceeded, "we will not agree to any decision they may pass. We have already submitted all our papers and documentary evidence to the Government; therefore let the investigation he had in your honour's presence."

On this petition the following Order, hearing date 5th of August 1835, was made:- "The petitioners are hereby informed that the members composing the Punch (or Court of Arbitrators) are present here, and have passed their decision by writing on the spot, as was written in the razi nama. It is, therefore, requisite to the ascertained whether the petitioners are disposed to agree to abide by the said decision, or not. If the petitioners agree to the same, then let them act accordingly; but if the petitioners do not agree to the same, the whole of the papers. and documents, and the proof of he enjoyment, &o., shall be duly examined, and a decision thereon will be passed by the Huzzoor, and the decree thereof will be delivered to the parties."

On communicating the above to the parties, the inhabitants of Soorpal said they were dissatisfied with the decision of the Punch, according to which, however, the inhabitants of Kunkunwady appeared ready to act. Consequent upon the dissatisfaction expressed by the villagers of Soorpal, it was ordered that a decision should be passed, after further investigation, in the presence of the authority.

On the 6th August 1839, Mr. Shaw made his Decree, in which he stated, that he had read the Punchayet proceedings, and considered the decision of the Punchayet to be an unfair one: he stated also that he considered the Punchayet had been nullified; and decree as follows:- that the villagers of Soorpal should hold and enjoy the land beyond the Jukhur Sarel, and the village of Kunkunwady in like manner to enjoy the land, on this aside the Jukhur Sarel."

The Appellants appealed from this Decree, to the Sudder Dewanny Adalwut of Bombay, and field their grounds of appeal on the 19th of November 1835.

The Respondents, in their answer, submitted that the razi-namas originally entered into between them and the villages of Kunkunwady were invalid, according to the provisions of Reg. VII., see. iii., clause 1 of 1827, inasmuch as no time was limited for the Punchayet coming to their decision; they moreover urged that the deed of submission had become invalidated, by reason of the death of one of the arbitrators, named on their behalf, pending the award.

The cause came on to the heard before Saville Marriott, Esquire, the senior Puisne Judge, on the 28th and 29th days of July 1836, who after observing that the proceedings in the lower Court did not appear in all respects in precise judicial form, but as this defect would not affect the substantial merits of the case, the Court availed itself of the authority vested in tit by Regulation XVII., 1827, sec. xxxiv., clause 2 to admit the same, recorded his opinion in the following terms:-

The Appellants having presented a petition, praying for a new trial, which was refused, brought this Appeal to Her Majesty in Council.

Both parties having bound themselves by the Deed of reference to abide y the decision of the Punchayet, such award was of binding force and effect, between the parties, and it was not competent to the Respondents to set it aside, and act upon the decision of a different tribunal. Moreover, the decision of the Sub-collector, which awards the Jukhur Sarrel to be the boundary between the two villages without clearly defining its true position, which is the chief matter in dispute, leaves the main question undecided: they relied on the Bombay Re. XVII. of 1827, and Bombay Reg. VI of 1830.

Though the submission to arbitration was properly executed, yet it did not constitute a reference within the meaning of the Bombay Regulation VII, of 1827. It did not specify and time within which such award was to be given, and regard being had to the course taken by the Government - the appointment of the Sub-Collector for the purpose of deciding the dispute,-the death of one of the nine arbitrators,-the dissent on the part of the Respondents, and also to the circumstance that the award does not appear ever to have been filed, such award was not to any extent a binding decision on the parties, and the Decree of the Sudder Dewanny Court, defining the boundary, was fully warranted by the evidence.

JUDGMENT

The Vice-Chancellor Knight Bruce :- Their Lordships have felt, and even with the aid of the information) communicated by the Appellant's Counsel, still feel, some difficulty in following some parts of the proceedings below; with regard, however, to the objections merely of form, taken here on the part of the Appellants, after considering them, and especially giving due weight to the observations upon the reference made by the Sudder Judge, to chapter 2, sec. xxxiv., of Regulation XVII of 1827, and upon the 4th and 5th sections of Regulation VI. of 1830, urged by the Appellants' Counsel, their Lordships, though not thinking those objections unreasonably taken, or without colour, do not feel disposed to accede to them.

The tendency of the Judicial Committee since its institution (as of the Privy Council before), has been, not to give way unnecessarily to objections of that nature; and in the present instance, the nature of the jurisdiction whence the appeal comes, the nature of the proceedings themselves, and the course pursued by the Appellants below, render it right, in their Lordships' judgment, to deal with the matter before them upon its substance and its merits. And the case so viewed has mainly two questions. First,-Ought the Court below to have treated the decision of the Punchayet as correct and binding? Secondly,-If not, had the Sub-Collector, Mr. Shaw, and the Court of Sudder, adopted the right line of boundary ?

Upon the first question, the appellants have conceded that the decision of the Punchayet is, by the Bombay Regulations of 1827, prevented from having the force of a judicial sentence, a judicial determination, or of a regular award in a technical sense; while the Respondents on their side have not denied, that it is receivable in evidence and to be considered as part of the materials in the cause. But its conclusiveness, denied by the Respondents, is asserted by the Appellants, who insist, that it was a binding agreement between the parties to abide by the Punchayet's determination, which they say ought to be upheld. Their Lordships, however, are of opinion, that if there was in effect an agreement to abide by the Punchayet's opinion and determination, and if the opinion was expressed and the determination made, by those who it was agreed should do so, (a point not necessary to be decided,) it was nevertheless, and is, the right of the Respondents, to contend that the agreement and determination do not necessarily bind; and to bring forward all the circumstances of the case, for the purpose of showing it to be inequitable, that they should bind. In a word, to resist the Appellants' demand, so far as it rests on what the Punchayet did, on grounds analogous to some of those on which the specific performance of an agreement may be resisted in English Courts of Equity. What may be the rule in case of an effectual reference to arbitration, and an award, properly so Considered, their Lordships do not think it necessary to say ; for in their judgment, having regard to the Bombay Regulations of 1827, and the undoubted facts of the case, an effectual reference to arbitration, and an award, properly to be so considered, did not exist in the present instance : though, if there had been an award, their Lordships are not satisfied, that grounds do not appear upon which it is invalid, or might have been set aside, Viewed as matter of agreement, it is their Lordships' opinion, from the circumstances of the case, and the whole course of proceeding, that reliance cannot be placed on what the Punchayet have done, and that it would be unjust to enforce their decision against the Respondents.

With regard to the true line of boundary, their Lord. ships think that there is sufficient evidence to show that fixed by the Punchayet not to be the true line,-a conclusion which they do not solely form from the circumstances, that it did not accord with the case alleged on either side. That the line fixed by the Judgments against which the Appellants have appealed is the true line, does not, in their Lordships' view, clearly appear; but the evidence does not prove any other line more probable, Assuredly the Appellants have not established, that either of these Judgments is substantially wrong; and as Mr. Shaw appears to have examined the surface of the disputed land himself, and to have bestowed care and attention upon the subject, it does not seem likely that any further investigation can materially advance the cause of truth or justice ; their Lordships, on the whole, consider the right course to be, to dismiss the Appeal but without costs.

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