TMI Blog1959 (11) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'D', 'D-1', 'D-2' and 'D-3' in the, plaint sketch map. The plaintiffs' case further is that the Highways Department had laid a road in the middle of the donka, having on either side of the road a channel for rain water to flow from the adjoining field. The next part of the plaintiffs' case is that the 1st defendant in collaboration with the 2nd defendant who is a maistri in the Highways Department, had cut the new road to the width of about five yards and had raised the height of the western bund in the 2nd plaintiff's field and also the level of his own land, so as to bring it on a level with the road. The plaintiffs complain that these acts have prevented the rain waters from flowing along with channel left by the Highways Department on the defendant's side of the new road and have caused diversion through the breach in the road, with the result that the entire water now rushes and enun-dates the plaintiffs' land. 3. They have therefore claimed a mandatory injunction to fill in the breach in the road, and to remove the bund raised on the 1st defendant's land. They have further asked for permanent injunction to restra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the flow of water along the channel adjoining his land and not to allow more than half of the rain water to flow through the breach in the road. 7. Against the decree, the 1st defendant preferred the appeal and the plaintiffs had also filed cross-objections against the refusal to fill the breach caused in the road. Before the lower appellate court a preliminary objection was taken about the appeal and the cross-objections not being maintainable on the basis of the joint Memo filed before the District Munsif. The lower appellate court has taken the view that because the parties had undertaken to abide by the decision given by the trial court they in the circumstances had given up their right of appeal against the judgment, which was in the nature of an award, and therefore neither the appeal nor the cross-objections were maintainable. The court has also found that there were no sufficient material on the record for deciding the appeal or cross-objections on merits, there being no notes of inspection available on record, and that in the face of the prior arrangement by the parties no further evidence were permissible. The court therefore dismissed the appeal and cross-objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Doss, 37 Mad. L.J. 100: (AIR 1919 Mad 150) where the terms of the agreement between the plaintiff and some of the defendants were that they should abide by any kind of decree made by a court after personal inspection of the place in dispute. The District Munsif dismissed the suit on mere inspection and the plaintiff appealed to the Sub Judge, who reversed the decision and remanded the whole suit for disposal according to law. The learned Judges held in second appeal that the parties who had given the consent to the court itself acting as an arbitrator were barred afterwards from questioning the decision not by reason of the provisions relating to the arbitration awards to be found in Second schedule of the Code of Civil Procedure, 1908, but because they were bound by their agreement. They however held that as a remand of the suit against the non-consenting defendants might lead to two inconvenient decisions, the Sub Judge acted rightly in remanding the whole suit for trial. A different view was taken in ILR 47 Mad. 39: (AIR 1923 Mad 444) where the agreement between the plaintiff and two of the defendants was set out in an affidavit which runs as follows : We agree to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred. He further held that if the proceeding be not extra cursus curiae then unless there be a clear waiver of the right, the right of appeal would not be lost. I respectfully agree and think the aforesaid decision as stating the legal position correctly; but continuing with the cases, I now come to Kunjammal v. Rajagopal Iyer, 1948-2 Mad. LJ 291 : (AIR 1949 Mad 267). Here there was a suit for maintenance by a wife and a minor daughter against the husband, and the father, who had denied liability in his written statement; but agreed at the trial to give her such maintenance as might be fixed by the Judge. It was held that no appeal lay, because there was no material on the strength of which the appellate court could safely come to a different conclusion from that of the trial court and because there was a compromise as to the procedure which left the court free to course the course though not in any sense judicial. It was also held that it would be a question of fact in each case whether the circumstances amount to a deviation more or less from the ordinary procedure, or whether the agreement between the parties be that the court should give a decision more in the nature of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with it without questioning its correctness or validity. They further held that it was not open to anyone of them later to say that the decision was not binding and that the real position was that the Judge was made a quasi-arbitrator though not bound by any of the inhibitions of the Arbitration Act. The agreement in Satyanarayana v. G. Subbaiah, 1957-1 Andh WR 11, was in these terms : We agree to the matter being decided according to the opinion which the court might entertain on the aforesaid local inspection without going into any further evidence. Our learned brother Satyanarayana Raju, J. has held that the parties had no right of appeal by reason of the agreement contained in the joint memo. 11. In most of the aforesaid cases references have been made to Pisani v. Attorney General of Gibralter, (1874) 5 P.C. 516 and Burgress v. Morion, 1896 AC 136. The facts of Pisani's case, (1874) 5 PC 516 were that the Crown had sought to establish its right to certain lands, which originally belonged to a deceased woman, but were alleged to have been escheated. During the course of the trial the title of the Crown by escheat appeared unsustainable, but instead of dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Divisional Court upon the question of fact, that court would have refused to hear the case. The parties having done so, I think they are now precluded from treating the matter as subject to appeal. It is clear that some cases held the right to appeal to be lost only because the party appealing had expressly or impliedly waived the right. These decisions are open to the objection of paying inadequate attention to the decision of the trial court being extra cursus curiae. The deviation from the cursus curiae with the acquiescence of both parties may result in certain consequences. One such consequence, as Lord Halsbury had observed, is that the parties are precluded from subsequently treating the matter as though it had been arrived in the usual course. The right to appeal would then be lost, not because of the express or implied agreement not to appeal, but because the parties to the proceeding cannot afterwards assume the alternative mode or procedure to be still open to them. The same result is reached according to the test laid in the Pisani's case, (1874) 5 PC 516; for where the agreement puts the original court so much out of its usual course as to prev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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