Research › Browse › Judgment

Orissa High Court · body

1971 DIGILAW 216 (ORI)

UJALI PADHANI v. RUSHI PATRA

1971-11-15

S.K.RAY

body1971
JUDGMENT : S.K. Ray, J. - This appeal is by the Plaintiff. It arises out of a suit for declaration of her right, title and interest over the suit-land, and for recovery of the same through Court. The suit was decreed in the trial Court, but was reversed in the lower Appellate Court. 2. The suit-land is 0. 26 decimals in extent comprising of 0. 20 decimals in plot No. 51 and 0. 6 decimals in plot No. 57 both appertaining to holding No. 22. This property admittedly was owned and possessed by the Plaintiff's father, Madhusudan Mundali. The Plaintiff is his daughter. After his death, the Plaintiff inherited the suit-property and possessed the same. In course of her possession, she inducted one Dibakar Mundali to cultivate the same on her behalf. The Defendants claimed the Suit property on the basis of two sale-deeds, Exts. C find E which led to initiation of a proceeding u/s 145 Code of Criminal Procedure. That proceeding terminated in favour of the Defendants necessiting filing of the present suit. 3. There are three Defendants in the suit. Defendants 2 and 3 are sons of Defendant-I. Their case is that the original owner of the property, Madhusudan sold 20 decimals in plot no. 51 for a consideration of Rs. 75/- in favour of Defendant. 1 under Ext. C dated 21-5-1944. That very day under another sale-deed, Ext. E, Madhusudan again also sold six decimals in plot No. 57 in favour of Defendant-I. The Plaintiff had put her thumb impression on both these sate deeds in token of her assent to such transactions. The Defendants since their purchase are in possession of the suit property. In proof of their possession they have adduced Ext. F the mutation proceeding and proved rent-receipts, Ext. B series from 1961-65. In view of this they allege that the Plaintiff has neither subsisting title to nor possession over the suit property. 4. The trial Court held that even though Exts. C & E are genuine documents, they were not acted upon, and consequently title never passed to Defendant-1, and that the Plaintiff was in possession of the suit, land till the final order in the 145 proceeding, and decreed the suit. 5. The lower Appellate Court held that Defendant 1 acquired title to the suit-land on the Strength of the sale-deeds, Exts. 5. The lower Appellate Court held that Defendant 1 acquired title to the suit-land on the Strength of the sale-deeds, Exts. C and E that all the Defendants have been in possession of the same all along from 1944. In rendering these findings be dealt with the main question raised by the Plaintiff that Ext. 2 contains an admission of Defendant-1 to the effect that the sale transactions evidenced by Exts. C and E are in affective and that he acquired no title thereunder and that this admission is decisive on the question of possession and title and establishes decisively Plaintiff's title and possession despite any deficiency that there may be in the other evidence on those two points adduced by her. On a thorough discussion of the oral and documentary evidence adduced by the respective parties he came to the conclusion that the admissions contained in Ext. 2 are erroneous and untrue, and that the same were made by the vendor and the vendee in collusion with each other to save the suit-property from the clutches of the common enemy Dibakar Mudali at whose instance the revenue proceedings u/s 47 of the C.P. Tenancy Act had been instituted and that the Defendants have been in possession of the suit-land all along since their purchase in 1944 till the date of suit. 6. The Bole point raised here on behalf of the Plaintiff-Appellant is the same as was raised in the lower Appellate Court, viz, that in view of the admissions contained in Ext. 2, the case of the Defendants must be rejected. As already stated, the lower Appellate Court has held that the admissions are not true, and have been made collusively with a purpose. It is an admitted fact that Madhusudan was an occupancy tenant in respect of the suit property and his transfers in the year 1944 under Exts. C and E were undoubtedly made in contravention of the provisions of Section 47 of the C.P. Tenancy Act. It is an admitted fact that Madhusudan was an occupancy tenant in respect of the suit property and his transfers in the year 1944 under Exts. C and E were undoubtedly made in contravention of the provisions of Section 47 of the C.P. Tenancy Act. This section provides that if an occupancy-tenant transfers any portion of his right in any land in contravention of the provisions of Section 46 of the C.P. Act, any person who would have been entitled to inherit that right of the transfer in such land in the event of his death without hearer heirs, may apply to a Revenue Officer within two years from the date on which the recorded tenant parted with possession of the land in pursuance of the transfer for being placed in possession of it, and the Revenue Officer may place him in such possession subject to certain conditions envisaged in that section. It is clear, therefore that if an application u/s 47 succeeds that would result in defeating the acquisition of title, by the Defendants under Exts. C and E. Dibakar Mundali made such of application upon which revenue case No. 11/121184/44-45 was registered. Madhusudan, the vendor of Defendant-I, the Plaintiff, Defendant-1 and one Madan Mahakud had been impleaded as opposite parties in that revenue case. A written objection had been filed on behalf of opposite parties 2 to 4. The recitals in para 4 of that objection petition denying the factum of transfer under Exts. C and E constitute an admission on which the Plaintiff relies. 7. A party in a litigation may rely on the admission of his adverse party as the best piece of evidence in proof of facts admitted. It is well-known that ail admission is decisive though not conclusive. It is equally well-known that an admission in a written statement in another litigation may be tendered as subjunctive evidence in any subsequent litigation even though the party whose admissions are proved may not be confronted with them : Basant Singh v. Janki Singh 1967 S.C.D. 399, and Bharat Singh v. Bhagirathi 1966 S.C.D. 153. The law is also equally well settled that the adverse party against whom an admission is proved may show that such admission was not true and was made under circumstances to serve an ulterior purpose. The law is also equally well settled that the adverse party against whom an admission is proved may show that such admission was not true and was made under circumstances to serve an ulterior purpose. With regard to the value and weight of an admission the observations of the Supreme Court in the case of Magubai v. B. Shama Rao AIR 1956 S.C. 539., may be extracted: An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. A similar observation was made by the Supreme Court in the case of Basant Singh v. Janki Singh 1967 S.C.D. 399. referred to above, to the following effect: Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true. The lower Appellate Court has come to a conclusion that the admission is not true and was collusively made in the revenue case. Keeping in mind the aforesaid legal principle, I will proceed to see whether the circumstances on which he relies reasonably lead to that conclusion. 8. It would be noticed that the vendor of Defendant-(sic) who is admittedly the owner of the property is not a party to this admission. The Plaintiff, in the same manner as Defendant-I, was interested to see that Dibakar's application u/s 47 is defeated because if be succeeded, then both the Plaintiff as well As Defendant-I would be deprived of the chances of enjoying the property. This admission, it is to be noted, was not confronted to Defendant-3 who examined himself in the case as d.w. 2. This admission, it is to be noted, was not confronted to Defendant-3 who examined himself in the case as d.w. 2. Absence of confrontation, of course, would not stand in the way of treating the admission as a substantive piece of evidence in the case, but it would have undoubtedly some effect on the question as to whether the admission was true and genuine, or had been made with an ulterior purpose. The other circumstances militating against the binding effect of such admission on which the trial Court has relied are: (a) The Plaintiff was a signatory with her father to the two documents of sale, Exts. C and E by putting her thumb marks on them. This signifies her absent or ratification of the transfers. (b) The mutation proceedings of the year 1945-46 in which the name of Defendant No.(sic) was mutated, was with Plaintiff's consent. This proceeding followed immediately after the disposal of the revenue case u/s 47 of the C.P. Tenancy Act, and was allowed on 1-7-1946. This shows that Defendant No. 1 asserted his title to the property shortly after the so called admission in the revenue case was made and the ready inference, therefore, is that the admission was made with a purpose. (c) The Plaintiff has produced no rent receipts from 1944.61. This has great significance on the question of Plaintiff's possession. (d) Before the dispute started in the year 1964, when proceedings u/s 145, Code of Criminal Procedure were initiated, the Defendants had been paying rent for this land. Payment of rent from 1961-1965 has been proved through Ext. B series. (e) The inaction on the part of the Plaintiff to claim the property or to pay rent for the same, or to do any act of possession over it, after dismissal of the revenue case u/s 47, is a strong pointer that the plain tiff associated with Defendant No. 1 in making a false admission in the revenue case with the sole purpose of getting his case dismissed. In this connection the fact that Madhusudan the original owner was not a party to this admission is equally significant. This evidence and the aforesaid circumstances have obviously led the lower Appellate Court to hold that the admission made in Ext. In this connection the fact that Madhusudan the original owner was not a party to this admission is equally significant. This evidence and the aforesaid circumstances have obviously led the lower Appellate Court to hold that the admission made in Ext. 2 was not only erroneous and untrue but was made by Defendant-1 in collusion with the present Plaintiff to save the property from the claim of Dibakar. Such a conclusion is a reasonable one and I am inclined to agree with it. His other finding regarding possession cannot also be challenged as being vitiated on account of any legal infirmity. Thus, the sole point urged has no substance must be rejected. The appeal therefore fails and is dismissed with costs.