JUDGMENT Hon’ble Tarun Agarwala, J.—A suit for injunction was filed restraining the defendants from interfering in the possession of the plaintiff on the Sehan as well as the passage in question. The plaintiff further prayed that the constructions raised by the defendants should also be removed. The plaintiff alleged that he was the owner of the house and the Sehan in question which he was using it for decades and that a dispute was raised earlier between the plaintiff and the defendant No. 1 in the year 1960, which culminated into a settlement in writing dated 20.4.1960, on the basis of which, the Sehan was demarcated in two equal portions by fixing a stone in the middle of the Sehan. The north side came into the share of the plaintiff and the south side came into the share of defendant No. 1. The plaintiff further alleged that one door of the defendant No. 1, which opened into the Sehan of the plaintiff was also closed down. The said settlement was duly implemented. The plaintiff alleged that now defendant Nos. 2, 3 and 4, in connivance with the defendant No. 1, had started interfering with the possession of the plaintiff in the Sehan, and had raised certain constructions in the Sehan thereby placing impediments in the right of and usage of the passage and the Sehan and had also illegally opened a door in the Sehan. Consequently, the suit for injunction. 2. The defendant No. 1 resisted the suit and filed his written statement. The defendants contended that no settlement of any sort was arrived at in 1960 nor was the Sehan divided between the plaintiff and the defendant No. 1. The said defendant contended that the plaintiff was neither the owner of the house nor in possession of the Sehan and was living only as a licensee. The defendant further contended that the door of the defendant always existed and was never closed and that the defendant alongwith defendant Nos. 2 to 4 were always in possession for the last fifty years. The defendant categorically denied that the Sehan or the passage was being used by the plaintiff. The defendants submitted that he had asked the plaintiff to vacate the premises which annoyed him and, in retaliation had filed a frivolous suit. 3. The defendant Nos. 2 to 4 were always in possession for the last fifty years. The defendant categorically denied that the Sehan or the passage was being used by the plaintiff. The defendants submitted that he had asked the plaintiff to vacate the premises which annoyed him and, in retaliation had filed a frivolous suit. 3. The defendant Nos. 2 to 4 also filed their written statements and submitted that the plaintiff and the defendants are distant relatives and that the door of the plaintiff which opened in the Sehan, was occasionally used by the ladies of the house on festive occasions and that the Sehan belonged to the defendants and was never being used by the plaintiff. The said defendants further submitted that no settlement had taken place between the plaintiff and the defendant No. 1 and further submitted that in any case, the said settlement was not binding upon the defendant Nos. 2 to 4, as they were not parties to the said settlement. The defendants further submitted that the plaintiff was living as a licensee and that the defendant Nos. 2 to 4 were in possession of the Sehan towards the north side whereas the defendant No. 1 were in possession of the Sehan towards the south side. 4. On the basis of the pleadings, the trial Court framed various issues and, after considering the evidence, dismissed the suit holding that the plaintiff could not prove his case and that he was not in possession of the Sehan and that he was living as a licensee and that he had no right on the passage in question or on the Sehan. 5. The trial Court found that the judgment in the criminal proceedings and the photographs of the Sehan in question did not indicate the title or the right of the plaintiff on the land in question. The trial Court held that the possession of the plaintiff on the Sehan was doubtful on the basis that the main door of the plaintiff‘s house opened towards the east and that only a window existed on the west side, consequently, there was no passage to the Sehan from the plaintiffs house, since the Sehan was located on the west side of the plaintiffs house. The trial Court further found that the settlement could not be relied upon because the plaintiff in his deposition had admitted it to be a forged document and therefore, submitted that the contradictions made by the defendant No. 1 with regard to his signature on the said settlement becomes irrelevant. The trial Court further presumed that since the plaintiff was living as a licensee, he was therefore not in possession of the Sehan. 6. Aggrieved by the aforesaid decision, the plaintiff filed an appeal which was also met the same fate. The appellate Court non-suited the plaintiff holding that the settlement was an award and that no award could be made unless there was a written reference of the dispute to the arbitrators. The lower appellate Court further found that the said award required registration, since, it created some rights between the parties with regard to an immovable property which was valued more than Rs. 100. Further, the document was not properly stamped under the Stamp Act and that the said award was also not made a Rule of the Court. Consequently, the non- stamping of the document and the document not being made a Rule of the Court resulted in the inadmissibility of the document. The lower appellate Court further found that the defendant No. 1 had also denied his signatures on the document and that the said document, in any case, could not be enforced upon the defendant Nos. 2 and 3 as they were not parties to the alleged settlement. The lower appellate Court also held that the evidence of the witnesses of the plaintiff could not be relied upon, as they were the accomplices of the plaintiff and that it appeared that the alleged agreement/award was nothing else but a forged document. 7. The plaintiff, being aggrieved by the aforesaid judgments, has filed the present second appeal before the Court. 8. Heard Ms. Merun Dey, the learned Counsel holding the brief of Sri A.N. Bhargava, the learned Counsel for the plaintiff-appellant and Sri Gulrez Khan, the learned Counsel holding the brief of Sri W.H. Khan for the defendants. 9. The learned Counsel for the appellant submitted that the Courts below have failed to appreciate the evidence on record and the findings arrived at were not only based on surmises and conjectures, but was also perverse. 9. The learned Counsel for the appellant submitted that the Courts below have failed to appreciate the evidence on record and the findings arrived at were not only based on surmises and conjectures, but was also perverse. The learned Counsel further submitted that the dispute which was between the plaintiff and the defendant No. 1 was only a settlement and was not an award contemplated under the Arbitration Act, 1940 nor the said document required any registration nor was it required to be made a Rule of the Court. Further, it was nobody’s case that it was an award made under the Arbitration Act, and the said findings given by the lower appellate Court was made only on the basis of the argument raised by the defendants at the time of the hearing of the appeal. Further, the lower appellate Court committed an error in rejecting the evidence of the plaintiff on the basis of surmises and conjectures. 10. On the other hand, the learned Counsel for the defendants submitted that the document relied upon by the plaintiff was an award under the Arbitration Act, which not only required registration under the Indian Registration Act, but was also required to be made a Rule of the Court under the Arbitration Act. Further, the said document was not properly stamped under the Stamp Act, consequently, the said document was inadmissible in evidence. Further, the evidence led by the defendants categorically proved that the plaintiff was neither in possession nor was the owner of the land in question and consequently, was not entitled to any relief. 11. I have considered the submission of the learned Counsel for the parties. This Court is of the opinion that the findings given by the Courts below are patently perverse and against the material evidence on record. The evidence led by the parties has not been appreciated by the Courts below and the findings given are based on surmises and conjectures, which has led to a failure of justice. Consequently, this Court while sitting in a second appellate jurisdiction is forced to reappraise the evidence, and interfere in the findings of fact. In my opinion, the impugned orders of the trial Court as well as of the appellate Court cannot be sustained and the second appeal is liable to be allowed and the suit is liable to be decreed. 12. In my opinion, the impugned orders of the trial Court as well as of the appellate Court cannot be sustained and the second appeal is liable to be allowed and the suit is liable to be decreed. 12. The plaintiff has come up before the Court alleging that he is the owner and in possession of the house of the Sehan since long and that there had been a previous dispute between the plaintiff and the defendant No. 1 with regard to the Sehan and the passage in question which was resolved and the matter was settled through the mediation of the elders of the village and a written document was executed in the year 1960, whereby the Sehan was divided into two equal portions by placing a stone in the middle of the Sehan and the north side was given to the plaintiff and the south side was given to the defendant No. 1. One of the doors of the defendant No. 1 which opened on the north side of the Sehan was directed to be closed down. It was alleged that the settlement was implemented and the door of respondent No. 1 was closed down. The question for the Court to consider is, whether the plaint case of the plaintiff has been proved by the plaintiff or not ? 13. P.W. 1, Zahoor Khan, stated that he was the scribe of the document as well as one of the mediators, who was asked to settle the dispute. This witness has deposed the previous existence of the dispute, the settlement that was arrived at, the writing of the document, the demarcation of the Sehan and the closure of the door of the defendant No. 1 on the north side of the Sehan. This witness has also stated that the defendant No. 1 had signed the document in his presence. P.W. 2, Fida Hussain also deposed and submitted that he was also one of the mediators and proved the existence of the dispute, the settlement that was arrived at between the parties and the implementation of the settlement. The said witness has not only proved the settlement, but also deposed that the defendant No. 1 had signed the agreement in his presence. P.W. 3 is the plaintiff, who also deposed and proved his case. 14. The said witness has not only proved the settlement, but also deposed that the defendant No. 1 had signed the agreement in his presence. P.W. 3 is the plaintiff, who also deposed and proved his case. 14. The aforesaid three witnesses further deposed that the plaintiff was using the Sehan not only for his passage, but for tethering his animals. P.W. 4, Abid Khan also deposed that the plaintiff had always been in possession and that the defendants were never in possession of the Sehan in question. 15. On the other hand, D.W. 1 deposed that the defendant No. 1 was in the possession of the Sehan towards the south side and that the defendants Nos. 2 and 4 towards the north side and that the plaintiffs were never in possession. The said witnesses denied about the existence of any criminal proceedings being initiated against the said defendants. D.W. 2, Abdul Hameed, one of the defendants deposed and submitted that the door of the defendant Nos. 2 to 4 opening in the Sehan in question, had always been in existence and that the said defendants were in possession of the Sehan and that the plaintiff had no right or title nor was he in possession of the Sehan in question. The said witness further denied that any settlement had taken place, but admitted that criminal proceedings were initiated in which he was convicted, but was acquitted by the High Court. D.W.3, Saleem Khan, who is the defendant No. 1 deposed that he was the owner of the house in which the plaintiff was residing as a licensee. He denied that any settlement had ever taken place between him and the plaintiff in the year 1960. He however, admitted that there was a small door of the plaintiff, which opened in the Sehan and which was being used, on rare occasions, by the ladies on festive occasions. He also deposed that he could not sign his signature in Urdu, but simultaneously stated, that he does remember as to whether he had placed his signatures on any document earlier, but submitted that now he only places his thumb impression and does not put his signatures in Urdu. He also deposed that he could not sign his signature in Urdu, but simultaneously stated, that he does remember as to whether he had placed his signatures on any document earlier, but submitted that now he only places his thumb impression and does not put his signatures in Urdu. D.W. 4 also stated that the defendants were in possession of the Sehan and that a door of the plaintiff existed which opened in the Sehan, but was being used by the ladies of the house. 16. Further evidence has been filed by the plaintiff, namely, the judgments of the criminal proceedings initiated on a complaint made by the plaintiff against the said defendants in which the defendants were convicted to six months of imprisonment under Section 323/34, I.P.C. A perusal of these judgments indicate that a complaint was made by the plaintiff against the encroachment made by the defendant Nos. 2,3 and 4 on the Sehan in question and the narrowing and the blocking of the passage which eventually led to fist fight resulting in injuries to the plaintiff. The complaint was proved and the defendants were found guilty and were sentenced to six months of imprisonment. The High Court confirmed the conviction but compounded the matter by reducing the sentence to the period already undergone by the defendants. 17. From a perusal of the evidence it is clear that the plaintiff and his witnesses has proved the existence of the earlier dispute, the mediation done by the elders of the village, the settlement of the dispute and the implementation of the settlement. The said witnesses had also proved that the plaintiff had been in possession of the house and the Sehan prior to the dispute and that the dispute was resolved and a settlement was arrived at. P.W. 1 and P.W. 2 were cross-examined at length by the defendants and there is nothing in the cross-examination which would suggest or conclude that the said witnesses are interested witnesses or were the accomplices of the plaintiff. The plaint case of the plaintiff stands proved to the hilt and the cross-examination of the plaintiffs witnesses does not make any dent in the plaint case. P.W. 4 is an independent witness and there is nothing to indicate as to why the evidence of this witness could not be relied upon. The plaint case of the plaintiff stands proved to the hilt and the cross-examination of the plaintiffs witnesses does not make any dent in the plaint case. P.W. 4 is an independent witness and there is nothing to indicate as to why the evidence of this witness could not be relied upon. The evidence of P.W. 1, 2 and 4 was not considered by the trial Court. The trial Court non suited the plaintiff on the ground that the plaintiff himself had deposed that the agreement could be a forged document. Much reliance has been made on this statement of the plaintiff by the trial Court. In my opinion, the trial Court should not have read this portion of the statement of the plaintiff in isolation and should have read the entire statement. If the entire statement of the plaintiff is read as a whole it will lead to an irresistible conclusion that the existing dispute with regard to the Sehan was resolved through mediation in the year 1960 and that the settlement was duly implemented. The statement of the plaintiff, in my opinion, could not lead to a conclusion that the document/settlement was forged document. 18. The finding of the trial Court that the plaintiff was not in possession of the Sehan, nor was the Sehan being used as a passage is baseless. The finding that the main door of the plaintiffs house opened towards the east and that there was no door of the plaintiff which opened on the west, namely towards the Sehan which is located on the west in my opinion, is patently perverse and is also based on presumption. The question as to whether the main door of the plaintiffs house opened on the east is immaterial. The crucial question to be considered is, whether the plaintiff was using the Sehan and the passage. The defendant No. 1 and the defendant No. 4 admitted in their deposition that there existed a small door of the plaintiff which opened on the Sehan and which was being used by the ladies on festive occasions. Consequently, there is an irrefutable evidence about the existence of a door of the plaintiff opening in the Sehan in question and the finding that no door of the plaintiff existed or opened in the disputed Sehan is against the material evidence on record. Consequently, there is an irrefutable evidence about the existence of a door of the plaintiff opening in the Sehan in question and the finding that no door of the plaintiff existed or opened in the disputed Sehan is against the material evidence on record. Further, the finding that the plaintiff was never in possession of the Sehan is patently erroneous and based on presumption. The trial Court concluded that the plaintiff could not be in possession since the defendants alleged that the plaintiff was living as a licensee. In my opinion, this finding is patently erroneous. The Court fails to fathom as to how the trial Court could come to this conclusion namely, that if the plaintiff was living as a licensee, he was therefore not in possession. In the first place, a person who is staying in a premises as a owner or as a licensee or as a tenant is indicative of the fact that he is in possession. The mere fact that a person is a licensee will not mean that he is not in possession. Further, this Court finds that the defendants had raised this issue namely, that the plaintiff was living as a licensee but this allegation has not been proved by them by any material evidence on record. Consequently, the finding by the trial Court that the plaintiffs possession could not be proved is baseless. On the other hand, the evidence of the plaintiff‘s witness categorically proves that the plaintiff was in possession and had been using the Sehan for a number of years. The admission of defendant Nos. 1 and 4 to the effect that a door existed, which was being used by the ladies is indicative of the use and possession by the plaintiffs of the Sehan and consequently the passage. It cannot be said that the plaintiff was never using the Sehan and the passage in question. 19. In view of the aforesaid, the settlement stands fully proved. The possession of the plaintiff on the Sehan is also proved. 20. This leads to the last question, namely, whether the said settlement is an award under the Arbitration Act; whether it was required to be registered; whether it was required to be made the rule of the Court, whether it was properly stamped and finally whether the said document was admissible in evidence ? 21. 20. This leads to the last question, namely, whether the said settlement is an award under the Arbitration Act; whether it was required to be registered; whether it was required to be made the rule of the Court, whether it was properly stamped and finally whether the said document was admissible in evidence ? 21. In my opinion, the lower appellate Court committed a manifest error in rejecting the said document on the ground that it was not admissible in evidence, since it was not registered nor was made a Rule of the Court. 22. From a perusal of the said document as well as from the evidence, it is clear that it is only a settlement and not an award as contemplated under the Arbitration Act] 1940. Admittedly, there was no written agreement referring the dispute to the arbitrators. Consequently, it is not an award as contemplated under Section 2(9) of the Arbitration Act. It is, therefore, not required to be made a Rule of the Court. It is simplicitor, a settlement arrived at by the mediators, namely, the elders of the village. Under no circumstances, it can be treated to be an award. The evidence and the settlement indicates that no new rights had been created under the said settlement. Only the pre-existing rights of the parties had been confirmed in the settlement. Section 17 of the Registration Act, requires registration of a document which purports or operates to create, declare, assign, limit or extinguish any right, title or interest which has a value of over hundred rupees in an immovable property. This settlement does not create any right, title or interest. It only confirms the pre-existing rights of the parties. Consequently, in my opinion, this document does not require any registration under the Registration Act. 23. From a perusal of the said settlement, I find that the trial Court by its order dated 19.8.1971 had passed an order for the imposition of Rs. 15/- as duty and had also imposed Rs. 150/- as penalty which amount was duly deposited by the plaintiff. Consequently, the said document became fully stamped under the Stamp Act and was admissible in evidence. Once the document is taken into evidence, it proves a settlement being arrived at between the parties. 15/- as duty and had also imposed Rs. 150/- as penalty which amount was duly deposited by the plaintiff. Consequently, the said document became fully stamped under the Stamp Act and was admissible in evidence. Once the document is taken into evidence, it proves a settlement being arrived at between the parties. The north side of the Sehan went into the share of the plaintiff and the south side went into the share of the defendant No. 1. The defendant has denied the document, but if one considers the statement of defendant No. 1, he has blown hot and cold. He has stated that he does not know how to make his signatures in Urdu and, in the same breath, he has deposed that he does not know whether he had placed his signatures on any document earlier, but now he only puts his thumb impression. The record of the criminal proceedings were also brought before the trial Court to show his signatures on various documents. Consequently, this Court is of the firm opinion that the statement made by the defendant No. 1 alleging that he does not know how to sign is incorrect. The statement of defendant No. 1 is unreliable. 24. It is noteworthy to state here that the plaintiff had filed a complaint against the defendants with regard to the encroachment, blockage of his passage and the fist fight in which the plaintiff was beaten up and injured. The incident was proved by the trial Court in the criminal proceedings which led to the conviction of the defendants. The conviction was affirmed up to the High Court. The present suit was filed at the same time for the same cause of action. The witnesses of the defendants had denied these criminal proceedings. Consequently, in my opinion, the statements made by the witnesses were not fair and were given in order to help the defendants. In my opinion, they are interested witnesses and their evidence is unreliable. 25. On the other hand, there is nothing to indicate from the statement of P.W. 1 and P.W. 2 that they are the interested witnesses or were accomplices of the plaintiffs. They have been cross-examined at length, but nothing adverse has come out in their statements. 26. An argument was raised that the settlement was not binding on defendant Nos. 25. On the other hand, there is nothing to indicate from the statement of P.W. 1 and P.W. 2 that they are the interested witnesses or were accomplices of the plaintiffs. They have been cross-examined at length, but nothing adverse has come out in their statements. 26. An argument was raised that the settlement was not binding on defendant Nos. 2, 3 and 4 as admittedly, they were not parties in that dispute. From the evidence, which has come on the record, the defendant Nos. 2 to 4 were living with defendant No. 1 in the year 1960, when the dispute actually arose. The said defendants were minors at that point of time. This fact can be proved by the evidence of one of the defendants Abdul Hameed, who deposed on 5.5.1976 stating that he was 30 years old. Consequently, in the year 1960 he was a minor, being only 14 years of age. It is quite clear that when the dispute arose in 1970, i.e., when the suit was filed, the defendants No. 2 to 4 had become major and had started interfering in the plaintiffs right on the land in question which eventually led to the filing of the suit as well as to the filing of the criminal case. The fact that the defendants No. 2 to 4 were residing, with the defendant No. 1, has not been dened by the defendants in their statements. One of the defendants has also admitted that the door of the plaintiff existed on the Sehan, which was being used by the ladies. Further, it has come on record that the plaintiffs and the defendants are distaint relatives and have a common ancestor. Consequently, in the opinion of the Court, the settlement arrived at by the defendant No. 1, who is the uncle of defendant Nos. 2, 3 and 4 was binding upon the defendant Nos. 2, 3 and 4. The plaintiff has filed the suit with regard to his usage and possession of the Sehan in question. No evidence has come forward by any of the parties with regard to the title of the land or of the Sehan in question. However, the possession of the Sehan with the plaintiff has been proved and consequently, in the opinion of the Court, the plaintiff was entitled to the relief claimed by him in his plaint. 27. No evidence has come forward by any of the parties with regard to the title of the land or of the Sehan in question. However, the possession of the Sehan with the plaintiff has been proved and consequently, in the opinion of the Court, the plaintiff was entitled to the relief claimed by him in his plaint. 27. In view of the aforesaid, this Court is of the opinion, that the judgments of the trial Court as well as the lower appellate Court cannot be sustained and are set aside. The suit of the plaintiff is decreed in terms of the relief claimed in the plaint. The second appeal is allowed with costs throughout. ————