JUDGMENT

Thom, C.J. - This is a defendants' appeal arising out of a suit u/s 44, Agra Tenancy Act. The plaintiff sought to eject the defendants from certain plots of land. The defendants in their defence pleaded that they were proprietors of these plots and not tenants. In these circumstances the revenue Court in which the suit was instituted referred an issue on the question of proprietary title to the civil Court u/s 271, Agra Tenancy Act. The record of the suit was submitted to the civil Court as directed by Section 271, Agra Tenancy Act. The parties thereupon presented a joint application to the Munsif in which they prayed that the matter in issue be referred to arbitration. The issue was referred to arbitration and in accordance with the provisions of Schedule 2, Civil P.C., arbitrators were appointed and award was pronounced. Objections to the award which was against the defendants were dismissed by the learned Munsif who accepted the award, decided the issue submitted to him in terms of the award and sent back the record with his finding to the Court of the Assistant Collector. The Assistant Collector accepting the finding decreed the suit. The defendants appealed to the District Judge on two grounds. Firstly, they challenged the decree of the Assistant Collector upon the ground that it had proceeded upon an invalid finding. It was contended that the Munsif had no jurisdiction to refer the issue submitted to him to arbitration and that therefore his finding based upon the arbitrators' award was invalid. The decree of the learned Assistant Collector which followed the finding of the learned Munsif based upon the award was consequently invalid. The appellants also objected to the decree of the Assistant Collector upon the further ground that the Assistant Collector had refused them leave to amend their written statement.

2. The District Judge rejected both contentions and dismissed the appeal. In second appeal in this Court the decision of the District Judge is challenged only upon the first ground, viz., that the finding of the Munsif, on which the revenue Court's decision is based, is invalid for the reason that the Munsif had no jurisdiction to refer to arbitration the issue referred by the revenue Court u/s 271, Agra Tenancy Act.

3. Section 271 provides:

(1) If (a) in any suit or application filed in a revenue Court against a person alleged to be the plaintiff's tenant or u/s 44, the defendant pleads that he is not a tenant, but has a proprietary right in the land, or (b) in any suit instituted under Chap. 14 the defendant pleads that the plaintiff has not got the proprietary right entitling him to institute the suit, or (c) in any suit instituted u/s 121 a dispute as to the proprietary right in the land in suit is raised, and such question of proprietary right has not been already determined by a Court of competent jurisdiction, the revenue Court shall frame an issue on the question of proprietary right and submit the record to the competent civil Court for the decision of that issue only.

For the appellants it was contended that the provisions of Schedule 2, Civil P.C., which relate to arbitration in a suit are not applicable to proceedings in a civil Court where an issue has been referred by the revenue Court u/s 271, Agra Tenancy Act. Paragraph 1 of Schedule 2 provides:

(1). Where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may at any time before judgment is pronounced, apply to the Court for an order of reference.

4. Paragraph 3 provides:

(1). The Court shall by order, refer to the arbitrator the matter in difference which he is required to determine, and shall fix such time as it thinks reasonable for the making of the award, and shall specify such time in the order. (2) Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this schedule, deal with such matter "in the same suit."

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