Judgment 1. Defendants 1, 2 and 4 are the appellants. They were appellants in the court below also. The suit was filed by respondent No. 1 for declaration of her title along with defendant Nos. 11 and 12 who are respondent Nos. 2 and 3 and for recovery of possession. The suit was decreed by the trial court and the appeal filed by the appellants was dismissed by the lower appellate court. 2. The admitted facts are that khata No. 60 of village Chitarpur was recorded in the name of Kani Mahto and Ghasi Mahto. Ghana and Jogi were the sons of Kani and Ghuja was the son of Ghansi. Shana being dead, his daughter is defendant No. 9 and his son is defendant No. 10 Ghuja is defendant No. 7. According to the plaint plot No. 2357 of that Khata was settled with Brij Mohan Lal Agrawal, husband of respondent No. 2 and father of respondent Nos. 1 and 3. Ghuja sold plot No. 2358 the plot, in the suit, to respondent No. 1 and Kesri Kumari, grand-daughter of the brother of Brij Mohan Lal Kesri died as minor within two years from the date of the sale. Respondent Nos. 1, 2 and 3 claimed the property by virtue of the said purchase on 21-11-1941. The sale deed is Ext. 3/A. In the plaint they have stated various acts of possession over this plot as well as over plot No. 2357. According to the defence plot No. 2358 was transferred by Ghana and Jogi, two sons of Kani to Quamruddin on 6-11-1940 (Ext.C). Quamruddin in his turn transferred « of that plot i.e. O.29« to Foddar on 2-4-1961 (Ext.A/1) and Foddar transferred 0.09« out of the same to the appellants on 31-7-1973 (Ext. A). The appellants have also stated in their written statement about various acts of possession with regard to the property. 3. Both the courts have found that Quamruddin never came in possession of the property in the suit. His document was sham and was never given effect. It has been found that Ghuja had exclusive right to transfer the whole of plot No. 2358 and the transferees or their successors in interest under Ext.3/A were in possession of the property. Appellants were never in possession of the property in the suit. 4. His document was sham and was never given effect. It has been found that Ghuja had exclusive right to transfer the whole of plot No. 2358 and the transferees or their successors in interest under Ext.3/A were in possession of the property. Appellants were never in possession of the property in the suit. 4. On 3-9-1982, the appeal was admitted and the following substantial questions of law were framed. (1) Whether the learned courts below have misconstrued the documents of title which go to the root of the case ? (2) Whether misconstruction of evidence of D. W. 18 and 6 and non-consideration of the evidence of witness No. 5 D. W. 7, brother of Kamruddin D. Ws. 8, 9, 10, 11, 12, 13 and 16 who are witnesses on material points vitiates the judgment of the appellate court? (3) Whether the statements of a person who parted with his interest over the property in suit against the documents executed by him can be taken into consideration while deciding the appeal? 5. When the appeal was taken up for hearing Mr. Debi prasad learned counsel appearing for the appellants concentrated his submissions to only point Nos. (2) and (3) above. 6. With regard to point No. (2), Mr. Debi Prasad contended that from the judgment of the lower appellate court it will appear that it has not considered the evidence of D. Ws. 7, 8, 9, 10, 11, 12, 13 and 16, therefore, the finding of the court below is vitiated, He submitted that this court in Second Appeal may consider correctness of the finding of possession. Mr. Prasad urged that finding of possession is not a finding of fact but of law. Reliance was placed in Kailash Singh V/s. Mahabir Pandey (AIR 1973 Patna 444). I am unable to accept the contention of Mr. Prasad that in Kailash Singhs case this court laid down that in all cases this court may under Sec.100 of Civil P. C. interfere into the finding of possession. In law, this court in Second Appeal may interfere into such finding if it is perverse or the first court appeal did not consider all material evidence or the conclusion was arrived by applying incorrect view of law. In Kailash Sinhas case because of the third circumstance, this court interfered. In law, this court in Second Appeal may interfere into such finding if it is perverse or the first court appeal did not consider all material evidence or the conclusion was arrived by applying incorrect view of law. In Kailash Sinhas case because of the third circumstance, this court interfered. In this case it is to be seen whether the court below failed to consider all material evidence. 7. It appears that these witnesses were mainly examined on the point of possession. According to Mr. Prasad for the purpose of holding that the appellants or their predecessors were never in possession of the property in the suit the court below ought to have considered the evidence of these witnesses and as the same was not done, the finding of the court below cannot be sustained. It is true that the lower appellate court was the final court of fact and it was required to notice the evidence of all material witnesses in order to come to finding regarding possession. But whether, in fact and circumstance of the case, it can be said that non-consideration of the evidence of those witnesses vitiates the finding of the court below. From the judgment of the court below it appears that on the basis of facts emerging from a number of documentary evidence, the court below has found that the transferees were in possession at all relevant time. Had it been a case that oral evidence was the basis for coming to that finding, non-consideration of the oral evidence of any of the parties for that purpose by a final court of fact would have been a ground for challenging that finding. But where the finding of possession is based on documentary evidence, certainly more reliable, oral evidence of the witnesses cannot falsify the documentary evidence Mr. Prasad could not show from the evidence of those witnesses that the finding of possession would (sic) the documentary evidence. Non-consideration of the evidence of the witnesses noticed above by the court below therefore, was not such as to vitiate its finding. I do not find any merit with regard to the submission of Mr. Prasad on the Second substantial question of law. 8. Non-consideration of the evidence of the witnesses noticed above by the court below therefore, was not such as to vitiate its finding. I do not find any merit with regard to the submission of Mr. Prasad on the Second substantial question of law. 8. With regard to point No. (3), Mr Prasad submitted that admittedly the property belonged jointly to Kani and Ghansi and admittedly there had not been any partition between them by metes and bounds, although in the records of right their shares were specified. According to Mr. Prasad, under the circumstances, neither the sons of Kani nor the sons of Ghansi could have transferred whole of the plot. He, therefore urged that even if it is accepted that Ghuja by Ext.3/A transferred plot No. 2358, the transfer must be confined to O.29« i.e. to the extent of his share. As a corollary, he urged that the transfers made by Ghana and Jogi by Ext C, a portion of which the appellants claim by virtue of Ext.A, must be confined to 0.29« i.e. half share of Kani in that plot. On these facts, Mr. Prasad submitted that the court below could not have decreed the suit for whole of plot No. 2358. For deciding this submission of Mr. Prasad, it is necessary to decide as to whether the appellants acquired any interest in the suit property. 9. In the suit quamruddin was one of the defendants namely defendant No. 5. He filed written statement. According to his written statement the plot in the suit was in exclusive Possession of Ghasi and with it Kani had no concern. The sale deed dated 6-11-41 executed by Ghana and Jogi sons of Kani in his favour (Ext.C) was sham. In other respects also he admitted the case in the plant. 10. Foddar Bhagat (Defendant No. 6) filed written statement in which he stated that he by sada Rehan Bond dated 18-6-63 had given in Rehan 0.09« acre of that plot to appellant No. 1. According to his written statement defendant No. 1 was in possession of the property. He admitted the statements made by defendant Nos. 1 to 4. 11. Quamruddin died after the trial of the suit. He was not examined as a witness. The court below relied on the statement made by Quamruddin in his written statement in giving a finding in favour of respondents 1 to 3. Mr. He admitted the statements made by defendant Nos. 1 to 4. 11. Quamruddin died after the trial of the suit. He was not examined as a witness. The court below relied on the statement made by Quamruddin in his written statement in giving a finding in favour of respondents 1 to 3. Mr. Prasad submitted that the written statement of Quamruddin could not have been used as a piece of evidence against the appellants and further in view of the fact that the appellants had filed an application in the court below challenging that the written statement alleged to have been filed by Quamruddin was not a written statement filed by him the finding of the court below based on the written statement of Quamruddin must be set aside. Mr. S.B. Sinha, learned counsel appearing on behalf of respondent Nos. 1 to 3 submitted that the court below committed no illegality in relying in the admissions made by Quamruddin in his written statement. 12. With regard to the latter part of the submission made by Mr. Prasad, it is admitted by him that no application was filed on behalf of the appellants with a prayer to make enquiry as to whether the written statement was that of Quamruddin or not. That being the position, merely contending that the written statement purported to have been signed and filed by and on behalf of Quamruddin was not actually his written statement, cannot be sustained. With regard to the former part of his submission, i.e. using the written statement of Quamruddin as a piece of evidence, it is admitted that Quamruddin was not examined as a witness. The general rule is that pleading is not part of evidence. But Quamruddin in his written statement admitted the title of the transferees of Ghuja and further said that so far his title was concerned (Ext. C) that was sham. The Question is whether an admission made in a written statement by a party can be used by his adversary. It is important to note that the appellants were claiming through Quamruddin. No attempt was made by them to examine Quamruddin as witness. Of course there is evidence of D. W. 7, brother of Quamruddin, in which he stated that Quamruddin was unable to move about. According to the evidence of this witness, therefore, Quamruddin was not able to come to court to depose. No attempt was made by them to examine Quamruddin as witness. Of course there is evidence of D. W. 7, brother of Quamruddin, in which he stated that Quamruddin was unable to move about. According to the evidence of this witness, therefore, Quamruddin was not able to come to court to depose. None of the D. Ws. have stated that Quamruddin was not mentally or physically fit to depose in the suit. One of the best persons who could have said whether he acquired any title by Ext.C and whether he was in possession of the property at any material time was Quamruddin. 13. According to Ext. C. Quamruddin acquired the whole plot. He alleged to have transferred half of it to Foddar. He, therefore, retained half. Quamruddin in his written statement admitted Ext.C as sham. He made admission against his own interest. There is no evidence that he was in collusion with the respondent Nos. 1 to 3. No motive was attributed to Quamruddin for making a false admission. Respondent Nos. 1 to 3, were certainly entitled to use the written statement of Quamruddin to their advantage. 14. Other competent witnesses to depose about Ext.C were Ghana and Jogi the executants of Ext.C. Admittedly Ghana was dead and Jogi was examined as D. W. 6. The court below relied on the evidence of D. W. 6 to come to finding that he had no concern at any time with the plot in question. Mr. Prasad, drew my attention to the relevant portion of the evidence of D. W. 6, where he stated that because of his old age he could not recollect past events and submitted that in view of the statements of D. W. 6 the court below ought not to have found that he had no concern with the plot in question. Firstly this is a question of appreciation of evidence of D. W. 6; and secondly if the submission of Mr. Prasad is accepted then the whole evidence of D.W. 6 shall have to be ignored on the ground that the statement is made by a person who because of his old age could not recollect the past events. If that is done then neither any one of the executants nor the alleged transferee was examined in this case. That certainly does not improve the position of the appellants. If that is done then neither any one of the executants nor the alleged transferee was examined in this case. That certainly does not improve the position of the appellants. For all these reasons Quamruddin did not acquire any interest in the plot in question either in whole or in part and neither Foddar nor the appellants could have claimed any interest in the property. 15. Mr. Sinha submitted that if Quamruddin had no interest in the property, the appellants have no locustandi to submit that in view of the absence of evidence of partition by metes and bounds between the recorded raiyats, the court below could not have decreed the suit in respect of the whole or part of plot No. 2358. The submission of Mr. Sinha is sound. In view of the finding that Quamruddin never acquired any interest in the property, the appellants being strangers to the property in question, they cannot claim any title by Ext.A. If at all, it is for the co-sharers of Ghuja to claim half of the property. The submission of Mr. Prasad that the suit, if at all, should have been decreed for half of the plot in question, therefore, must be rejected. 16. Mr. Prasad submitted that the suit should have been filed on the ground of adverse possession. The courts below on the basis of documentary evidence and also on the basis of the map attached with the written statement of the appellants found that the appellants were never at any material time in possession of any of the part of the plot in question. That being the position, this submission of Mr. Prasad is also not available to the appellants. I hold that there is not merit in any substantial questions of law urged by Mr. Prasad. 17. In the result, this appeal is dismissed, but without costs.