JUDGMENT D. P. Sood, J.—In this Regular Second Appeal under section 100 of the Code of Civil Procedure, plaintiffs, who are appellants, have assailed the judgment and decree dated May 29, 1984, passed by the learned District Judge, Hamirpur and Una Districts at Una. By this judgment, the first appellate Court dismissed the suit in its entirety by setting aside the judgment of the trial Court dated May 29, 1980, whereby a preliminary decree for possession of one half share out of the properties described in paras 1 to 3 of the plaintiff by partition, was passed and plot No. 4, a part of the suit property was held to be the exclusive property of defendant No. 1. 2. Necessary facts for understanding the real controversy in between the parties are as under : The pedigree table, detailed below, would reveal the relationship between the parties to the instant lis : Chuhru Ram Datts Ram Parma Nar (died issue less) Basant Ram Ramesh Chander Plff. 2. Purshotam Dass Plff. 1. Bhagat Ram, Df. 2. Om Parkash Issueless Harbans Lal Df. 1. Hans Raj. Issue-less died. Plaintiffs filed a civil suit for partition by separating their shares on the grounds that plaintiff and defendant No. 2 has one half share in the disputed property detailed in the head note of the plaint. It was alleged that the suit property was owned and possessed by the common ancestor, namely, Sh. Chuhru Ram, which devolved upon the parties on his death. The plaintiff sought partition alleging cropping up of strained relations in between the parties. Defendants 3 to 5 are the purchasers of a part of the suit property from Harbans Lai, defendant No. 1. It is pertinent to detail here that Shri Harbans Lai and defendants 3 to 5 are the contesting parties whereas defendant No. 2 Bhagat Ram was later transposed as a plaintiff. 3. Shri Harbans Lai, the contesting defendant, admitted the claim of the plaintiff to the extent that major portion of the suit property continued to be joint. However, he alleged that some of the suit property was purchased by his late father, Sh. Basant Rain, with his own funds and that property is liable to be excluded from partition. This written statement was filed on 23-1-1977. Even, Sh. However, he alleged that some of the suit property was purchased by his late father, Sh. Basant Rain, with his own funds and that property is liable to be excluded from partition. This written statement was filed on 23-1-1977. Even, Sh. Harbans Lai, appeared as DW 5 on 5-9-1978, on the basis of this plea raised by him and admitted the suit property to be joint by categorically stating that no partition had taken place in his presence. However, on his application under Order 6, Rule 17, C. P. C, amendment was allowed and subsequently, vide the amended written statement dated March 18, 1979, he set up a different plea alleging that the joint properties of the parties was partitioned between them in 1954 by means of a writing dated 7-6-1954. In addition thereto, the further case set up by defendant is that plaintiffs formed a joint Hindu family of which Bhagat Ram, plaintiff, the eldest brother, was the Manager and this memorandum of partition was signed by him for and on behalf of the plaintiffs including himself on one hand and the contesting defendant (Harbans Lai, defendant No. 1) on the other. It is contended that thereafter the parties have been coming in possession of the properties respectively allotted to them in the said private partition, the same having been acted upon by the parties thereto inasmuch as they have been alienating properties separately since that date. 4 On the pleadings of the parties, the trial Court framed issues on 17-5-1977 (on the basis of earlier pleadings of parties) and on 31-5-1979 (after the amendment of the written statement was allowed) to the following effect : 1. Whether the property in dispute is joint of the parties, if so, what are the shares of the parties? OPP. 2. Whether the plaintiffs are estopped from filing the present suit? OPD. 3. Whether the suit has been properly valued for purposes of Court-fee and jurisdiction? OPP. 4. Whether the suit is collusive? OPD. 5. Whether defendants 3 to 5 are in possession of the property in dispute as owners by way of purchase as alleged? OPD. 6. Whether the defendants are entitled to special cost, if so, to what extent? OPD. 6-A. Whether there has been a private partition as alleged? OPD. 7. Relief. 5. OPP. 4. Whether the suit is collusive? OPD. 5. Whether defendants 3 to 5 are in possession of the property in dispute as owners by way of purchase as alleged? OPD. 6. Whether the defendants are entitled to special cost, if so, to what extent? OPD. 6-A. Whether there has been a private partition as alleged? OPD. 7. Relief. 5. The trial Court, on appraisal of evidence, excluded Plot No. 4 out of the suit property, by holding that it was the exclusive property of late Shri Basant Ram and consequently, it devolved upon the contesting defendant (Harbans Lai, defendant No. 1). However, qua the remaining suit property, a preliminary decree was passed as indicated above, vide judgment dated May 29, 1980, which was successfully appealed against in the court of learned District Judge, who vide the impugned judgment and decree, accepted the appeal and reversed the findings the trial Court by setting aside its judgment and decree and directed the dismissal of the entire suit with costs throughout. Cross-objections by the plaintiffs were also filed, which also met the same fate. Aggrieved with the aforesaid judgment and decree, the plaintiffs have come up in this appeal, wherein they are being referred to as the plaintiffs and contesting defendant respectively. 6. This Regular Second Appeal has been admitted vide order dated October 11, 1984, but no substantial questions of law has been formulated by this Court, as envisaged under sub-section (4) of section 100 of the Code of Civil Procedure. 7. After hearing the learned Counsel for the parties, the following substantial question of law arise for the determination of this Court;. "Whether the findings by the first appellate Court is vitiated by non-consideration of relevant evidence, namely, admissions in earlier written statement and evidence of the defendant himself, appearing as DW 5, or by essentially wrong approach adopted by it ?" 8. Mr. Chhabil Dass, learned Counsel for the plaintiffs, has vehemently contended that the contesting defendant (Harbans Lai) being the author of the written statement and also the statement on oath dated 5-9-1978, had admitted the case of the plaintiffs and under the circumstances of the ease, the trial Court committed an error in having allowed the amendment of the written statement and set up a distinct defence to get over the earlier admissions with respect to the suit property. Secondly, that the first appellate Court committed a legal error in admitting document, Mark A (partition deed dated 7-6-1954 in evidence and using the same for collateral purpose i. e. to see the nature of possession of the parties, in view of the admission of the defendant). Thirdly, that in the absence of any proof of authority of Shri Bhagat Ram, one of the plaintiffs, as karta of the family or in otherwise capacity having been authorised to effect partition on behalf of the other plaintiffs and to sign the document dated 7-6-1954, the learned District Judge could not have held—his authority as karta and in that view of the matter, his admission in the document dated 7-6-1954 was rot binding upon the other plaintiffs. 9. Dealing with the first submission made by the learned Counsel for the plaintiffs. It is well settled that an application seeking amendment of the written statement cannot be considered on the same principle as amendment of the plaint In the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, AIR 1983 SC 462, it has been held that an admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. I need not consider other authorities in view of the principles laid down by the Apex Court in respect of the amendment of written statement allowed by the trial Court. The amendment had been to the effect that there had been a partition in the year 1954 in between the parties to the instant lis. To what extent this defence has or has not been proved and in what manner the earlier admission has been explained away by the contesting defendant, is to be seen while considering as to what value has to be attached to his .statement. Thus, to my mind, the amendment allowed by the trial Court was in consonance with the principles laid down by the Apex Court and this submission of the learned Counsel, being meritless, is rejected. 10. Thus, to my mind, the amendment allowed by the trial Court was in consonance with the principles laid down by the Apex Court and this submission of the learned Counsel, being meritless, is rejected. 10. Coming to the second and third submissions of the learned Counsel, with respect to the admissibility of the document dated 7-6-1954 and action of Shri Bhagat Ram, as karta of the plaintiffs, suffice it to state that the close scrutiny of the contents of document dated 7-6-1954 indicate that this document purport to have effected partition between the parties on the date of its execution by its own force. Learned Counsel for the parties are not at controversy to this extent. Thus, in this view of the matter, this document being neither stamped nor registered, is inadmissible in evidence for any purpose The question is whether this writing dated 7-6-1954 Mark A could be used for collateral purpose in older to see the nature of possession qua the suit properties held by the parties to the instant lis ? The learned District Judge while dealing with this point has observed: "14. This document shows that in the year 1954 the property was divided between the parties through the mediation of arbitrator Vaid Milakh Raj and Neel Kanth and Dalip Chand. They were appointed as arbitrator. It has been contended by the appellants counsel that Bhagat Ram was Karta of the Joint Hindu Family and also being the eldest brother executed this document on behalf of the other members and Harbans Lai appellant also signed. Property marked A as shown in this document fell into the share of Harbans Lai, appellant and property mark B fell into the share of Bhagat Ram etc. The description of the property which was given to the parties has been found in this document. Another circumstance has been pointed out that even the sons of Datta Rain i. e. Parshotam and Ramesh Chand have not appeared and only Bhagat Ram has appeared in the witness box. So the non-appearance in the witness box is a factor to be taken into consideration regarding partition. Even if this fact is ignored there is one more circumstance that the common-ancestor died about 30 years ago. The property cannot remain joint for such a long time. Even the fathei of the defendant died 30 years ago. So the non-appearance in the witness box is a factor to be taken into consideration regarding partition. Even if this fact is ignored there is one more circumstance that the common-ancestor died about 30 years ago. The property cannot remain joint for such a long time. Even the fathei of the defendant died 30 years ago. So the time factor and the conduct of the parties is relevant, the nature of the possession of the parties and how the property has been handled. There is also evidence that the parties have built separate houses. Mulakh Raj states that the house was built by the plaintiff and each of the parties are in possession of their houses It is also in evidence that the parties are living separately in their houses and mess is also separate. According to PW 2 Ramesh C hand constructed a house in the abadis and that house is his exclusive property. So Mr. Behal further contends that had the property been joint atleast no sharer would have constructed house to his dis-advantage. Had the property been joint, the dispute would have arisen. There is one more circumstances that the very fact that the arbitrator was appointed also shows the conduct of the parties showing their intention to live separately and divide the properties. This document is old and the scribe as well as the arbitrator are no more in this world, but it has been proved by DW 6 who is nephew of the attesting witness Dalip Raj and has seen him writing. He recognised the handwriting of his uncle on mark A. DW 7 who is the brother of Hari Dutt was arbitrator of parties in document mark A has recognised the handwriting of his brother. Similarly, DW 8 Devinder Kumar son of Subedar Milkhi Ram has recognised the handwriting of his father on mark A. They are relations and naturally they are to see handwriting in usual course of business. Ex. DW 6/A is the reference for the appointment of arbitrator signed by Bhagat Ram and Harbans Lai. Mark has also been signed by Bhagat Ram and Harbans Lai So Bhagat Ram was acting on behalf of one branch of line of family and this inference can be safely concluded in this case when other brothers are silent and only Bhagat Ram and defendant/appellant have locked themselves in pitched battle. Mark has also been signed by Bhagat Ram and Harbans Lai So Bhagat Ram was acting on behalf of one branch of line of family and this inference can be safely concluded in this case when other brothers are silent and only Bhagat Ram and defendant/appellant have locked themselves in pitched battle. It is apparent that there is some other dispute between the parties............" 11. It is to be noted that after the death of the common ancestor, Shri Chuhru Ram, his estate devolved upon his three sons, namely, Data Ram, Parma Nand & Basant Ram. No doubt, both Bhagat Ram, one of the plaintiff appearing as PW 5 and Harbans Lai, contesting defendant appearing as DW 5 did state that his father and uncle have expired but in which month or year, has not been specifically stated by either of them nor any iota of evidence has been brought on record to show that all of them have expired prior to 7-6-1954 nor there is any evidence on record to show that Bhagat Ram was acting as karta or continued to be as such till 7-6-1954 on which date the document pertaining to the partitioned suit property was executed in between the parties. No doubt, PW 5 in his cross-examination, admitted that he is the eldest of the three plaintiffs but no such suggestion that he had been acting as karta/manager of the family since after the death of their father Shri Data Ram, has been put to this witness nor this fact has been stated by Shri Harbans Lai, contesting defendant as DW 5. There is also no other documentary evidence on record to show the date or year of death of late Shri Data Ram, the predecessor-in-interest of the plaintiffs. Even the amended written statement does not show as to when the said Data Ram expired. Thus, in the facts and circumstances emerging from the record, learned District Judge had not correctly appreciated the evidence in holding Shri Bhagat Ram (PW 5) to be the karta of the plaintiffs, In his statement, Shri Bhagat Ram, PW 5, has categorically stated that he was living separately. However, his categorical stated is that there had been no partition effected in between the parties. Even no such suggestion had been put to him that after the death of late Sh. However, his categorical stated is that there had been no partition effected in between the parties. Even no such suggestion had been put to him that after the death of late Sh. Data Ram, he became the karta of the plaintiffs family and, thus, he was competent to effect partition for and on behalf of the other plaintiffs nor it has been proved on record that other plaintiffs had authorised Shri Bhagat Ram orally or in writing to act for and on their behalf in the partition so effected vide mark A dated 7-6-1954. Thus, from whatsoever angle this document may be seen, it cannot be said to have been executed by Shri Bhagat Ram, as karta of plaintiffs. Even the perusal of this document shows that he has signed (though signatures denied by him as his own witness) for himself and for other two plaintiffs, but without giving the fact as to in what status or in what authorisation he had signed the documents. Thus, even if it be deemed that his signatures have been proved by the witnesses adduced by Sh. Harbans Lai, contesting defendant, it cannot be legally inferred that the document executed and signed by said Bhagat Ram, one of the plaintiffs, binds his co-plaintiffs. The learned District Judge has not adverted to this aspect of the case at all while considering the admissibility of this document mark A for collateral purposes vis-a-vis the possession of suit property held by each one of the parties to the instant lis. That being so, the aforesaid document could not have been allowed to be admitted in evidence even for collateral purpose. The approach of the learned District Judge, which led to erroneous findings, is essentially wrong to this extent. 12. Even otherwise, the finding of the first appellate Court that partition had been effected in the year 1954 and document mark A was acted upon, is erroneous one. Firstly, a specific stand has been taken by Harbans Lai, defendant No. 1 that excepting some of the suit property, the other properties continued to be joint as detailed in written statement filed on 23-1-1977. This fact stood substantiated by his statement on oath as DW 5 dated 5-9-1978. Firstly, a specific stand has been taken by Harbans Lai, defendant No. 1 that excepting some of the suit property, the other properties continued to be joint as detailed in written statement filed on 23-1-1977. This fact stood substantiated by his statement on oath as DW 5 dated 5-9-1978. Admitting for the sake of argument that document pertaining to the parties to the instant lis was executed on 7-6-1954, the question arises whether it was acted upon by the parties concerned ? Had it been acted upon, Harbans Lai, the contesting defendant, would have positively pleaded in his earlier statement that he had been continuously continuing to be in exclusive possession of the properties out of the suit property, held by him from 1954 onwards till the date of the suit. No doubt, according to his claim he never participated in the partition proceedings effected through the intervention of arbitrators, yet he must have been knowing about it and must have been allotted his share by his brothers and the contesting defendant after 7-6-1954. No such case has been set up by him in his earlier written statement or in his statement as DW 5. The admission made on 5-9-1979 as DW 5, has been made by him as a party to the suit in question and against his own interest. He has not explained away the aforesaid admission nor has set forth the circumstances before the Court under which he made it. The submission that admission made in the pleadings or subsequently as his own witness, are substituted by the distinct defence taken up by him in the amended written statement, is not supported by the legal proposition. The further contention that Harbans Lai, contesting defendant, has not been confronted with his earlier statement, is also not available to the contesting defendant, inasmuch as it has been held in the case of Biswanath Prasad and others v. Dwarka Prasad and others, AIR 1974 SC 117, that : "There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be dis-credited by use of his prior statement. In the former case, an admission by a party is substantive evidence, if it fulfils the requirements of section 21 ; in the latter case a prior statement is used to dis-credit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence pro prio vigore ; in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by section 145 of Evidence Act," It is pertinent to note that this objection has been raised before the learned District Judge specifically as is apparent from the discussion made in para 14 of the impugned judgment, referred to above Viewing the case from another angle and believing that the plea raised by defendant Harbans Lai in his amended written statement to be correct, even then pleadings and proof are at variance. In pleadings, he has contended that the ancestral property was partitioned for the first time in 1954 vide deed dated 7-6-1954. However, while appearing as DW 5, he has taken a contradictory stand by stating on oath that there had been a partition in between the parties to the instant lis since the time of their ancestors and partition was effected for the second time in the year 1954 in between the parties. In case partition had already been effected during the life time of their ancestors, then unless some ancestral property was kept joint in between them, there was no need of effecting the second partition in the year 1954. No such case has been set up by the contesting defendant that the earlier partition effected during the life time of the ancestors was with respect to some of the properties in dispute and others were kept joint. In the absence of such a plea, the statement of DW 5 is of contradictory nature and no reliance can be placed thereupon. In other words, the testimony of Harbans Lai, defendant No. 1, is not worthy- of credit nor can it be acted upon in concluding that partition of the suit properties excepting plot No. 4 was effected in the year 1954 vide the aforesaid document. In other words, the testimony of Harbans Lai, defendant No. 1, is not worthy- of credit nor can it be acted upon in concluding that partition of the suit properties excepting plot No. 4 was effected in the year 1954 vide the aforesaid document. In this view too, the findings of the learned District Judge is vitiated by the non-consideration of the pleas so raised and the admissions made by the contesting defendant, which amount to essentially a wrong approach to the evidence adduced by the parties emerging from the record of the instant case. 13. In view of the discussion made above, the appeal is accepted in terms of the above ; the impugned judgment and decree of the first appellate Court is set aside and that of the trial Court dated May 29, 1980 is upheld. Parties are, however, left to bear their own costs. The case is ordered to be remitted to the trial Court for further proceedings in accordance with law. Parties to appear before the trial Court on May 20, 1994. Registry to send the record to the Court below immediately so as to reach the trial Court, atleast before the date so fixed. Appeal allowed.-