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Issues Involved:
1. Bar of suit by reason of the award. 2. Maintainability of the suit based on an award not filed under Section 14(2) of the Arbitration Act, 1940. 3. Correctness of findings of fact in relation to properties in Schedules B and C. Issue-wise Detailed Analysis: 1. Bar of Suit by Reason of the Award: The defendants contended that the suit is barred due to the award made by the arbitrator. They relied on precedents such as 'Krishna Panda v. Balaram Panda' and 'Bhajahari Saha v. Behary Lal', which held that an award duly passed is equivalent to a final judgment and bars subsequent suits for partition. The court examined these precedents and concluded that under the Arbitration Act, 1940, the award must be made a rule of the court to be enforceable. Section 32 of the Arbitration Act, 1940, specifically prohibits any suit for a decision upon the existence, effect, or validity of an arbitration agreement or award, except as provided in the Act. Therefore, the award cannot operate as 'res judicata' unless it is a valid award, which should be determined in proceedings under the Act, not in a separate suit. The court held that the suit is not barred by the award. 2. Maintainability of the Suit Based on an Award Not Filed Under Section 14(2) of the Arbitration Act, 1940: The defendants argued that the suit is not maintainable because it is based on an award that was not filed under Section 14(2) of the Arbitration Act, 1940. The court referred to 'Ramchander v. Munshi', which held that a suit to enforce an award does not lie. However, the court noted that the plaintiffs did not produce the award during the suit and the trial counsel stated that the claim was not based on the award. The court carefully reviewed the plaint and concluded that the claim was based on the plaintiffs' original title, not on the award. The reference to the award in the prayer for relief was merely to show the plaintiffs' 'bona fides' and not to enforce the award. Therefore, the suit is maintainable. 3. Correctness of Findings of Fact in Relation to Properties in Schedules B and C: The court upheld the findings of the Subordinate Judge regarding the properties in Schedules B and C. For the property in Schedule B, the court found overwhelming evidence supporting the Subordinate Judge's conclusion that it was family property and not the personal property of Siakishori Kuer. The court cited various documents, including account books and municipal receipts, which showed that the property was treated as family property. For the property in Schedule C, the court noted that the defence's case was inconsistent and not seriously challenged. The court accepted the Subordinate Judge's findings that the property had not been divided as alleged by the defendants. Conclusion: The appeal failed on all grounds. The court dismissed the appeal with costs and directed that the plaint and decree be amended to include the property in Schedule D, as per the Subordinate Judge's order dated 24-7-1946.
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