Thangarajasingham V. Iyampillai

1962 Present: Tambiah, J., and Abeyesundere, J.

V. THANGARAJASINGHAM and wife, Appellants, and
M. IYAMPILLAI and wife, Respondents

S. C. 45411960-D. C. Jaffna, 1087/L

Arbitration-Appointment of trial Judge as arbitrator-Legality-Civil Procedure Code ss. 146 et seq., 676 et seq., 699 et seq.

          A trial Judge cannot be appointed by the parties to an action to act as arbitrator under the provisions of the Civil Procedure Code except as expressly permitted thereby.

         Where, in an action for a right of way and water-course, the parties invited the trial Judge to inspect and make an order as " sole arbitrator " and agreed to abide by such order-

       Held, that there was no right of appeal from the order made by the trial Judge acting as arbitrator. In such a case, the parties must be deemed to have waived their right of appeal,

     Held further, that the order made by the Judge as " sole arbitrator " was illegal and should, in revision, be set aside.

APPEAL from a judgment of the District Judge, Jaffna.

                              C. Thiagalingam, Q.C., with J. N. David, for Plaintiffs-Appellants.

                              N. Nadarasa, for Defendants-Respondents.

Cur. adv. vult.

 November 13, 1962. TAMBIAH, J.-

            The plaintiffs claimed a half-share of a well situated on the defendants' land and also a servitude of right of way and water-course, leading from the well along the southern boundary of the second defendant's land, to the second plaintiff's land. The defendants, while admitting that the second plaintiff was entitled to a share of the well in their land, denied that the plaintiffs had any right to lead water along the channel along the southern boundary of the second defendant's land and averred that the second plaintiff's predecessor in title drew water from the well by having access thereto along the lane on the north. They further took up the position that the plaintiffs' predecessor in title had abandoned the right to lead water through the second defendant's land and claimed the land free from this servitude by prescription.

        On the 1st of August, 1960, when the matter came up for trial, the Journal entries read as follows :

" Present-Plaintiff's Attorney and deft. Mr. Adv. Kathiravetpillai instd. for plff. Mr. Adv. Soorasangaran instd. for deft.-The parties invite me to inspect and make an order as sole arbitrator, by which order they agree to abide. They sign the record signifying their  consent. "

      The learned District Judge inspected the place on the 10th of August, 1960, and on the 5th of September, 1960, the plaintiffs' counsel brought it to the notice of the learned District Judge that the second plaintiff was not consenting to abide by the order of the learned District Judge and that she wanted the case to be fixed for trial. The defendants' counsel, on the other hand, submitted, inter alia, that the inspection had already taken place and that the order should be delivered.

             The learned District Judge proceeded to deliver order, the relevant portions of which read as follows :

        " The inspection revealed that the right of way and water-course has never been used and it could never have been used because of the rocky land and the difference in level. In this case the land in which the well is situated is on a lower level than the land which claims a servitude. But the share of well has been used obviously by coming along the lane and taking water. The fences across this alleged right of way also showed that they are very, very old fences with very, very old live fence trees and that this right of way could never have been used. "

     On the 5th of September, 1960, the plaintiffs' counsel invited the learned District Judge to look into documents marked P1-P5, and although these documents were shown to the learned District Judge, they were not formally tend

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