An arbitrator's decision on a question of fact is not reviewable by a Court.

Narayan, J.

1. This appeal is directed against an order of the Subordinate Judge, Bhagalpur, setting aside an award. The award had been given by one Mr. Anant Prasad who had been appointed an arbitrator by the parties of Partition Suit No. 5 of 1947, to decide the dispute which is the subject-matter of that suit. After the award had been submitted, the defendant No. 1 filed an objection & contended that the award was not fit to be accepted. This objection found favour with the learned Subordinate Judge who set aside the award & directed that the suit be heard on the, merits.

2. The pltfs & the deft. No. l are the descendants of one Babu Baij Nath Sahai. Baij Nath Sahai left two sons, Bhagwat Sahai & Bhawani Sahai. The pltf. No. 1 is the son of Bhawani Sahai, & the other pltfs. are the sons or grandsons of the pltf. No. l. The deft. No. 1 is the son of Bhagwat Sahai, the other defts. being transferees from deft. No. 1. These other defts. never appeared in the suit, & on a petri. that was filed on 24-9-1947 by the lawyers representing the pltfs & the deft No. 1, the case was referred to arbitration & Mr. Anant Prasad, a common relation of the parties, was appointed the arbitrator. The award was submitted on 5-6-1948.

3. The allegation of the pltfs. was that after the death of Bhawani Sahai, there arose a dispute between the mother of the pltf. No. l & the mother of the deft. No. 1, both the pltf. 1 & the deft. No. 1 being minors at the time, & because of the dispute the mother of the pltf. No. 1 left the ancestral house in Mahal la Shujaganj of the Bhagalpur town & began to reside in the garden house in Chunihartoli lane, & for the sake of convenience in cultivation, 60 bighas of land were divided, half & half, between the pltf. 1 & the deft. No. 1, & two houses in Chunihartoli lane were allotted to the mother of the pltf. No. 1 for her residence. This arrangement was alleged to have been made in the year 1906, & according to the pltfs. case, all the remaining properties remained in joint possession of the pltfs. & the deft, though under the management of the deft. No. 1. This suit was instituted because the deft. No. 1 did not agree to a private partition.

4. The deft. No. 1 was contesting the suit, & according to his allegation, there was a complete partition in 1906, as a result of which all the properties were divided between the pltf. No. 1 & the deft. No. 1. The defts contention is that ever since the year 1906 he and the pltf. No. 1 have been in separate possession of the properties & have also alienated some of the properties allotted to their respective shares. The deft. No. 1 challenged the award on the following grounds : (l) that the arbitrator was guilty of misconduct; (2) that the award is invalid because of an error of law apparent on, the face of the award; & (3) that the award is bad in law because it affects the interests of certain persons who did not join in the reference.

5. The learned Subordinate Judge overruled the contention that the arbitrator was guilty of misconduct & also the contention that the award is bad because all the defendants had not joined in the reference. The learned Subordinate Judge has given good reasons to support his view that the arbitrator is not guilty of misconduct, that he had not got annoyed with deft. No. 1, & that he did not refuse to take oral evidence which the deft. No. 1 was prepared to adduce. These findings could not be seriously challenged before us, & we are in complete agreement with the learned Subordinate Judge on these points.

6. There is also no merit in the contention, that the award is bad because defts. other than the deft. No. 1 had not joined in the reference. The other defts. did not appear in the suit in spite of service of summons & with regard to the properties in respect of which there are transferees the order of the share of the is that they should allotted tted to the share of the deft. No. J. The arbitrator has also directed that if there be