Award not filed in the Court.

This second appeal arises out of a suit for recovery of possession, -which has been dismissed by both the Courts below. The suit was laid on the basis that there was an alienation by a limited estate holder, in favour of the plaintiff which was quite valid and binding upon the defendant, who happened to be reversioner to the estate. There was, in fact, a small cause suit on a prior occasion by this very plaintiff against this very defendant, who at the time occupied the position of a lessee, for recovery of rent. During the time the small cause suit was pending there was a reference to arbitration, not through Court but outside. The award that resulted from the arbitration declared that the present defendant was a reversioner to the estate of the last male holder and that the plaintiff had no title to the property, which had been the subject-matter of the alienation by the widow of the last male holder. After the award, curiously enough there was still a decree passed in the small cause suit, apparently because the award was not sought to be relied upon by the defendant in answer to the claim for rent made in that suit. In this suit, which thereafter came to be instituted, questions were raised with reference to the binding character of the alienation in question and also with reference to the maintainability of the suit so far as it craved the relief of injunction against any interference by the defendant with the plaintiff’s possession. The latter of the questions depended for its decision upon the fact of the plaintiff’s possession on the date of the suit or upon the contrary of it. These questions are questions of fact on which there are concurrent findings, which I do not find myself able to touch in spite of the very able argument of Mr. Parthasarathy for the appellant.

Two interesting questions have been further raised, in the course of the hearing one at the instance of Mr. Parthasarathi for the appellant and the other at the instance of Mr. Suryanarayana for the respondents on both of which questions I must say I have listened to very able and interesting arguments. I have, after a careful consideration of what has been said by counsel on both sides in regard to both these points come to the conclusion that while the appellant’s counsel is right in his submission that an injunction should have issued, at any rate, with reference to a half of the property in his client’s possession, the learned counsel for the respondent is also right in his contention that it is not open to the present plaintiff to question the validity of the award that was made during the pendency of the small cause suit as above referred to.

The point taken for the appellant with reference to the question of injunction which I have indicated just now is this: that since it has been found by both the Courts below that the present defendant is only one of two reversioners entitled to the estate of the last male holder, there is no reason why the plaintiff should be denied any injunction in restraint of any interference of the defendants, at any rate, with reference to a half of the suit property, which must undoubtedly be regarded as hers by title defeasible only at the instance of the other reversioner, who has not chosen to impeach it so far and quite valid so long as such an attack by that reversioner has not taken place. It is well-settled law that an alienation by a widow is voidable at the instance of the reversioners, and if one of two reversioners has chosen to attack the alienation and succeeded in establishing the ground for an attack, then it is only to the extent of his share of the property that he can succeed, because the rights of the two reversioners are the rights of tenants-in-common and no decree can be passed in favour of one reversioner, who has not chosen to challenge the alienation because of the challenge that has been made to it at the instance of the other reversioner.

While this is the position that I am prepared to ac