ORDER This petition has been filed by the petitioner for the following reliefs:- (a) Issuance of an appropriate order (s)/ direction (s) for the appointment of the Presiding Arbitrator under the provisions of Sections 14 and 15 read with section 11 of the Arbitration & Conciliation Act, 1986. (b) Issuance of any other order (s) / and/or direction (s) as deem fit & proper under the facts and circumstances of the case. 2. It is not in dispute that there was an agreement between the parties dated 05.05.1992 for development of the land of the owners, namely the opposite parties, by the developer, namely the petitioner. In the said agreement clause 34 was provided for settlement of any dispute or differences between the parties with respect to the terms of the agreement by arbitration under the provisions of Indian Arbitration Act, 1940 as amended from time to time. It is also not in dispute that subsequently a dispute with respect to the terms of aforesaid agreement arose between the parties, whereafter the petitioner (developer) filed Request Case No.07 of 2001 which was disposed of by a bench of this Court vide order dated 23.08.2002 appointing two Chartered Accountants as Arbitrators and another person, namely Partha Sarthy as Umpire for concluding the arbitration within three months. 3. Learned counsel for the petitioner stated that only on two dates i.e. 18.12.2003 and 20.01.2004 the proceeding was taken up by the Arbitrators and the Umpire but in spite of co-operation by the petitioner the said proceedings still remain undecided and in the meantime one of the Arbitrators died in the year 2006. Hence, learned counsel for the petitioner argued that this is a fit case in which an independent Arbitrator be appointed for full, final and early settlement of dispute between the parties. 4. On the other hand, learned counsel for opposite parties nos. 1 to 4 submitted that there is no denial of the aforesaid agreement or the arbitration clause therein or even the appointment of arbitrator in earlier Request Case No.07 of 2001. He further submitted that the petitioner (developer) left the land immediately after the agreement and opposite parties (owners) came in possession thereof, got the map sanctioned and completed the constructions and were duly recorded in the Municipal Corporation. 5. Learned counsel for opposite parties nos. He further submitted that the petitioner (developer) left the land immediately after the agreement and opposite parties (owners) came in possession thereof, got the map sanctioned and completed the constructions and were duly recorded in the Municipal Corporation. 5. Learned counsel for opposite parties nos. 1 to 4 averred that the instant Request Case No.08 of 2005 stood dismissed for default due to non-prosecution on 14.12.2005 and only after six years MJC no.5811 of 2011 was filed by the petitioner for its restoration. Hence, it is quite apparent that the petitioner is unnecessarily delaying the matter merely with an intention to harass the opposite parties. 6. Learned counsel for opposite parties nos.1 to 4 claimed that Title Suit No.437 of 1998 was filed by the petitioner (developer) with respect to the agreement in question and the land in dispute for declaration of his shares and recovery of possession over the building constructed on the land in question and in that suit opposite parties nos. 1 to 4 appeared and the learned Subordinate Judge, Patna vide order dated 23.07.1999 directed to get the matter resolved by the Arbitrator, but the said Title Suit is still pending. 7. Learned counsel for opposite party no.5 submitted that although in the agreement in question dated 05.05.1992 his name was typed at the first page and the last page of the agreement, but he had never signed at any place and hence agreement was not executed by him and as such it is not binding on him, nor any arbitration proceeding can be held in that regard and hence he submitted that the matter cannot be referred for arbitration. He further argued that the aforesaid title suit is still pending in which opposite party no.5 is one of the defendants and the entire dispute can be decided therein as question of facts are specifically involved. 8. From the arguments of learned counsel for the parties and the materials on record it is quite apparent that agreement between the parties with respect to construction dated 05.05.1992 is not in dispute between the petitioner and opposite parties nos. 1 to 4 in which there is a clause 34 with respect to arbitration. It is not in dispute that opposite parties no.3 to 5 are the sons of opposite parties nos.1 and 2 and hence opposite party no.5 is clearly a share holder in the property in question. 1 to 4 in which there is a clause 34 with respect to arbitration. It is not in dispute that opposite parties no.3 to 5 are the sons of opposite parties nos.1 and 2 and hence opposite party no.5 is clearly a share holder in the property in question. But from a bare perusal of the said agreement it transpires that although opposite parties nos.1 to 4 had signed the agreement, but opposite party no.5 had not signed the agreement anywhere. In the said circumstances, opposite party no.5 cannot be legally deemed to be a party to the said agreement and without his consent there cannot be a legal and valid agreement with respect to the entire land in question. 9. No doubt opposite party no.5 in his counter affidavit dated 26.09.2012 had stated his age as 33 years and hence at the time of agreement in the year 1992, he was a minor of 13 years, but in the said agreement no mention is made that opposite party no.5 is minor, nor there is any execution of the agreement by any one on behalf of opposite party no.5. In the said circumstances, legality and validity of the agreement in question dated 05.05.1992 has come under cloud and the same can be decided only by the Civil Court in an appropriate title suit. 10. Furthermore, the agreement in question is of 1992 and the first Request Case bearing Request Case No.07 of 2001 had been filed nine years thereafter by the petitioner (developer) without annexing any proof of any construction made by him on the land in question. On the other hand, it is the specific claim of the opposite parties that sometimes after the said agreement the petitioner (developer) left the land in question without making any construction and the opposite parties (owners) after coming into possession of the said land, constructed a building thereon by themselves after obtaining permission from the Patna Regional Development Authority and thereafter assessment was also made in favour of opposite parties by the Patna Municipal Corporation. Thereafter opposite parties put the shops constructed in the building on rent. All these claims based on documents could not be disproved by the petitioner. 11. Thereafter opposite parties put the shops constructed in the building on rent. All these claims based on documents could not be disproved by the petitioner. 11. On the other hand, claim of the petitioner that he completed construction of the entire building in the year 1996 and thereafter he was ousted by the opposite parties, is nothing but a bald statement not supported by any material whatsoever and hence at present no reliance can be placed thereon specially when the petitioner filed the first Request Case No.07 of 2001 after five years from the date on which he claims to have been ousted by the opposite parties. The petitioner’s claim is clearly unreliable and belated. 12. Considering the entire facts as aforesaid, including the filing of Title Suit No.437 of 1998 by the petitioner which is still pending before the learned Subordinate Judge and the order passed in the earlier Request Case No.07 of 2001 and non disposal of the earlier arbitration by the Arbitrators and the Umpire and the specific claim of opposite party no.5 it is quite apparent that the matter in issue cannot be validly decided by the Arbitrator. 13. Reference to arbitration can be made only if there is an arbitration agreement between the parties, but due to non-execution of the agreement in question by or on behalf of opposite party no.5, who admittedly is a co-sharer of the property in question, he is not a party to the agreement. Furthermore, it there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also non-parties to the arbitration agreement, reference to arbitration or appointment of arbitrator cannot be made with respect to all the parties and the entire property, especially when the shares were not defined and partitioned. Reference in this connection may be made to a decision of the Apex Court in case of S.N.Prasad, Hitek Industries (Bihar) Limited Vs. Monnet Finance Limited and others reported in (2011) 1 SCC 320 . 14. Moreover, complicated questions of facts and serious allegations of ouster etc. Reference in this connection may be made to a decision of the Apex Court in case of S.N.Prasad, Hitek Industries (Bihar) Limited Vs. Monnet Finance Limited and others reported in (2011) 1 SCC 320 . 14. Moreover, complicated questions of facts and serious allegations of ouster etc. are involved in the instant case and hence this case does not warrant the matter to be tried and decided by an Arbitrator, rather for the ends of justice it should be tried in a court of law which is competent and has the means and authority to decide such a matter involving complicated questions and it can only be a civil court of competent jurisdiction to decide such matter. 15. It transpires that a title suit bearing Title Suit No.437 of 1998 has already been filed by the petitioner which is pending before the learned Subordinate Judge, Patna which has full authority to decide such disputed questions of facts and law, especially when the entire matter in issue is before it for being decided. Reference may be made to a decision of the Apex Court in case of N. Radhakrishnan Vs. Maestro Engineers and others reported in (2010) 1 SCC 72 . 16. Learned counsel for the petitioner has placed reliance upon a decision of a learned Single Judge of this Court in case of Sundar Yadav & Anr Vs. Asha Kumari & Ors, reported in 2009(3) PLJR 663 , but the said case did not arise from any arbitration agreement, rather the said order was passed in an appeal from appellate decree and it had dealt the authority of the Karta of the joint family. But the said case law cannot be made applicable to the facts and circumstances of this case as neither opposite party no.1 had anywhere in the agreement stated that he was executing the deed of agreement as Karta of the entire family, rather the said agreement was also signed by his two sons as independent co-sharers and it was only the third son namely opposite party no.5 who had not signed it nor even his father had signed on his behalf as is apparent from the agreement itself. 17. 17. In the said circumstances, the matter being not capable of being decided by the Arbitrator, this Request Case is disposed of with a liberty to the petitioner to proceed with the aforesaid Title Suit for redressal of his grievances.