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1966 DIGILAW 52 (ORI)

MAKHEA KUMBHAR v. FAGU KUMBHAR

1966-06-22

BARMAN

body1966
JUDGMENT : Barman, C.J. - The unsuccessful Defendant No. 6 Makhea Kumbhar in the Courts below is the Appellant. This appeal arises out of assault filed by the Plaintiffs against deceased Khudu. Kumbhar's widow Sukamati for declaration of right of the Plaintiffs and proforma Defendants 3 and 4 all as reversioners or Khudu Kumbhar who died about 40 years ago in respect of the suit property. 2. The material facts are these: Bhiku and Khudu were two brothers. Bhiku had two sons Jaipal (since deceased) and Plaintiff No. 1 Fagu. Plaintiffs 2, 3 and Defendants 3 and 4 are the sons of the deceased Jaipal; they represent Bhiku's branch of the family. Khudu died about 40 years ago issueless leaving him surviving his widow Sukamati on February 20, 1946 Sukamati executed a registered will Ext. D in favour of Defendants 1 and 2 who are her brother's sons; thereafter Sukamati died; the year of death of Sukamati is either in 1950 or 1951 which is controversial in that the question of limitation depots on the year of her death as hereinafter discussed. On April 30, 1962 the Plaintiffs claiming as reversioners brought this suit against Defendants 1 and 2; the brothers of the Plaintiff No. 2-Defendants 3 and 4-not having joined the Plaintiffs in the suit were made proforma Defendants. 3. In defence the contesting Defendants 1 and 2 for their alleged title relied on the will dated February 20, 1:) 45 Ext. D executed by Sukamati as aforesaid; it wad also alleged that Sukamati having died more than 12 years before the suit was filed the Defendants acquired title by adverse possession; the suit is accordingly barred by limitation. 4. At the trial Court among the issues raised, issues 3, 4, and 5 were these: ' 3. Whether Sukamati died in the year 1951 or January 1948? 4. Whether Defendants Nos: 1 to 2 have acquired right and title by adverse possession? 5. Whether the suit is time-barred? 5. The trial Court found that the Plaintiffs were never in possession. The trial Court however decreed the suit in favour of the Plaintiffs and Defendants 3 and 4 on the finding that Sukamar died within 12 years from the institution of the suit; the suit is not barred by limitation. In appeal the decision of the trial Court was upheld. Hence this second appeal Defendant No. 1 Makhea Kumbhar. 6. The trial Court however decreed the suit in favour of the Plaintiffs and Defendants 3 and 4 on the finding that Sukamar died within 12 years from the institution of the suit; the suit is not barred by limitation. In appeal the decision of the trial Court was upheld. Hence this second appeal Defendant No. 1 Makhea Kumbhar. 6. The only point urged herein was limitation. In that context .the year when Sukamati died is relevant. The Plaintiffs, in support of their case that the suit as filed on April 30, 1962 was within 12 years from the time of death of Sukamati, relied on a mutation petition dated June 26, 1951 Ext. 3 on behalf of Defendants 1 and 2 in Mutation Case No. 58 of 1951-52 where it was stated that Sukamati died five months back, that is to say, five months from the date of the document; according to this the time of death of Sukamati would be in January, 1951; the suit having been filed in April, 1962 was within time. It was however submitted on behalf of the Defendant-Appellant that mere proof by P.W.S. of the thumb impressions of Defendants 1 and 2 on the document does not prove execution; that apart, it was also urged that the Defendant Appellant was not confronted with the document in evidence, and therefore according to the Plaintiffs the document is not admissible in evidence. 7. These continents on behalf of the Defendant-Appellant challenging the admissibility of Ext. 3 are not tenable. The reasons are these: P.w.5 Upendra Sahu who was the scribe of the document stated that he drafted it on the instructions of Defendants 1 and 2; that they put their thumb impressions on the document after being read over. That apart, the certified - copy of the order dated August 25, 1951 in Mutation Case No. 58 of 1951-52 Ext. 6 shows that the mutation petition Ext. 3 was filed in the said mutation case. According to the well settled position in law the admission made in Ext. 3 is itself substantial evidence in view of Sections 17 and 21 of the Indian Evidence Act. 8. As regards the point that the Appellant-Defendant No. 1 was not confronted with Ext. 6 shows that the mutation petition Ext. 3 was filed in the said mutation case. According to the well settled position in law the admission made in Ext. 3 is itself substantial evidence in view of Sections 17 and 21 of the Indian Evidence Act. 8. As regards the point that the Appellant-Defendant No. 1 was not confronted with Ext. 3, it is now well settled law, as laid down by the Supreme Court in a recent decision, that admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as a witness was confronted with those statements in case it made a statement contrary to those admissions; the purpose of contradicting the witness u/s 145 of the Evidence Act is very much different from the purpose of proving the admission; admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness; what weight is to be attached to an admission n made by a party is a matter different from its use as admissible evidence (Bharat Singh and Ors. v. Mst. Bhagirathi 1966 S.C.D. 153 para 19). 9. Apart from Ext. 3 the Plaintiffs also filed on a petition dated July 30, 1951 Ext. A by Bhiku Kumbhar, father of Plaintiff No. 1 Fagu Kumbhar which was scribed by D. Panigrahi; in this document Sukamati is stated to have died last Falgun "Cata Falgun"-which means Falgun just prior to the date of Ext. A, that is to say she died in Falgun, 1951. It was argue on behalf of the Defendant-Appellant that the thumb impression of Bhiku Kumbhar, father of Plaintiff No: 1 had not been proved; that no body proved that it was executed by him; that p.w.5 did not prove the signature of Bhiku Kumbhar nor was the scribe D. Panigrahi called. These arguments also lose their force in the face of the position that Ext. A was the contesting Defendants own document produced and relied on by them and was marked as exhibit without objection. Ext. A having been Defendants' document it was not for the Plaintiffs to prove it. 10. These arguments also lose their force in the face of the position that Ext. A was the contesting Defendants own document produced and relied on by them and was marked as exhibit without objection. Ext. A having been Defendants' document it was not for the Plaintiffs to prove it. 10. The attention of the Court was also drawn to the fact that in the document Ext. A the year 1950' had been written above the figure 1951' which had been scored through. The learned lower appellate Court in paragraph in of the judgment gave his explanation why 1951' was correct and that 1950' subsequently interpolated did not fit in with the context in which the year was mentioned at all as explained in the said paragraph. In my opinion, his reasoning is correct. 11. Assuming the Defendants' document Ext. A is taken out of consideration, even so, the contesting Defendants' own mutation petition dated June 25, 1951 Ext. 3 by itself is sufficient to prove that Sukamati died in Falgun 1951 as discussed above and therefore the suit filed in April, 1962 was within time. 12. It was also argued on behalf of the Defendant Appellant that the rent receipts Ext. C series stated to be in the name of Defendants 1 and 2 relied on by then were not considered by the learned lower appellate Court. They also relied on the position that the Plaintiff had not filed any rent receipts. These arguments are also not tenable because the rent receipts Ext. C series by .themselves would not prove title; they only prove possession. The consideration of rent receipts would not have improved the position in favour of the Defendant Appellant. Keeping these aspects in view no useful purpose will be served by remand as prayed for on behalf of the Defendant-Appellant. 13. In this view of the case the decision of the Court below is upheld. This appeal is dismissed with costs. Final Result : Dismissed