JUDGMENT U.C. Maheshwari, J. 1. The appellants/plaintiffs have directed this appeal under section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 9-8-2004 passed by District Judge, Mandla in Civil Regular Appeal No. l-A/97 upholding the judgment and decree dated 20-11-1996 passed by Additional Civil Judge Class-I, Mandla in Civil Original Suit No. 22-A/96 dismissing their suit filed against the respondents for declaration, perpetual injunction and possession with respect of the landed property described in the plaint. 2. Facts giving rise to this appeal in short are that appellant No. 1 and his wife Smt. Suhawan (since deceased) the predecessor of appellant No. 2-A to 2-F filed a suit for quashment of the ex-parte judgment and decree passed by Ist Civil Judge Class-II on dated 8-11-1977, in Civil Original Suit No. 54-A/1977, (whereby decreeing the suit of the principal defendant No. 1 (since deceased) Devlal (the predecessor in title of the respondents 1-B and C) the registered gift deed dated 5-2-1969 as alleged executed by late Punwa (the father of said Devlal) in favour of appellant No. 1 and said Suhawanbai was declared to be void, and by declaring to said Devlal to be the Bhoomiswami of the disputed land bearing Survey Nos. 28, 106, 168, 315, 341, 282/41 area 28.51 acre situated at village Mohogaon described in the plaints the decree for its possession was passed with a further prayer of declaring them (the appellants and his wife said Suhawanbai) to be the Bhoomiswami of such disputed land and also issuing perpetual injunction restraining the respondents/defendants from any interference in their possession of the aforesaid disputed land. In alternate, the decree for possession of such disputed land is also prayed. As per further averments of the plaint the disputed property was initially belonged to Bhagati Gond, on his death in the year 1950 the same was inherited by his widow Suhagi who had only one daughter namely; Sukhri, (the mother of deceased plaintiff Suhawan). In alternate, the decree for possession of such disputed land is also prayed. As per further averments of the plaint the disputed property was initially belonged to Bhagati Gond, on his death in the year 1950 the same was inherited by his widow Suhagi who had only one daughter namely; Sukhri, (the mother of deceased plaintiff Suhawan). After the death of Suhagi such property was inherited by Sukhri and on her death the same was inherited by the aforesaid Smt. Suhawan, the wife of the appellant No. 1, After death of Bhagati his widow said Suhagi being old aged alone woman in the family was not in a position to look after all the affairs of the land hence, she kept one Punawa the father of deceased/defendant No. 1 Devlal to look after and cultivation of such land. Pursuant to it, in the year 1953 such Punawa got mutated the land in his name in the record of rights. It is further stated that by such mutation the right of Smt. Suhawan and her mother had not affected in any manner as they were cultivating such land. As per further averments said Punawa by admitting the right of the appellants over the land executed a registered gift deed dated 5-2-1969 in favour of the appellant No. 1 and his wife late Suhawan deceased plaintiff No. 2 and handed over the possession of the disputed land to them. Since then they are coming in possession of the same. Their name had already been mutated in the record. But, after death of Punawa his son said Devlal principal defendant No. 1 filed the abovementioned Civil Original Suit No. 54-A/77 for declaration and possession of the aforesaid land. The summons of such suit was never served on the appellant No. 1 and the deceased plaintiff No. 2 Suhawan. By taking advantage of their illiteracy without serving the summons of such suit on them, the suit was proceeded ex-parte and ultimately, the same was decreed ex-parte for declaration and possession as mentioned above. Subsequently, on receiving the notice of its execution proceedings on dated 2-10-1982, the appellant No. 1 to make the inquiry in this regard came to Court of Mandla on 4-10-1982 then on first occasion he came to know about aforesaid ex-parte judgment and decree. Subsequently, on receiving the notice of its execution proceedings on dated 2-10-1982, the appellant No. 1 to make the inquiry in this regard came to Court of Mandla on 4-10-1982 then on first occasion he came to know about aforesaid ex-parte judgment and decree. Thereafter, on the strength of aforesaid gift deed and describing aforesaid circumstances, the impugned suit for the abovementioned prayer is filed. 3. In the written statement of the deceased defendant No. 1-Devlal the averments of the plaint are denied. The possession of the appellants over the disputed land is also denied. In addition, it is stated that after passing the judgment and decree in the aforesaid Civil Original Suit No. 54-A/77, the appellant No. 1 and said Smt. Suhawan the deceased plaintiff No. 2 did not have any right over the disputed land. It is also stated that summons of such suit was duly served on the appellant No. 1 and Smt. Suhawan Bai, and the case was proceeded ex-parte against them in accordance with the prescribed procedure. It is also stated that the alleged registered gift deed dated 5-2-1969 had got executed by the plaintiffs in their favour from Punawa by practicing a fraud. The possession of disputed land was ever remained with Punawa and Devlal in the life time of Punawa and after his death with him and his family members. It is also stated that suit of the appellants is also barred by the principle of res judicata and prayer for dismissal of the suit is made. In the written statement of the respondents/defendant Nos. 2 and 3 the same averments, as stated in the written statement of the principal defendant No. 1-Devlal, are pleaded and prayer for dismissal of suit is made. 4. In view of pleadings of the parties after framing the issues the evidence was recorded. On appreciation by holding the summons of Civil Original Suit No. 54-A/77 was duly served on the appellant No. 1 and his wife Smt. Suhawan Bai and they were rightly proceeded ex-parte in such suit and also in view of the principle of res judicata, the suit of the appellants was dismissed by the trial Court at first instance on 28-1-1996. On filing the appeal by the principal plaintiffs Pandru and Smt. Suhawan Bai, the Appellate Court vide order dated 24-11-1998 instead to decide such appeal on merits, remitted back to trial Court and called the findings on Issue Nos. 6-A, B, C and 7. In compliance of such order after extending the opportunity for adducing the evidence to the parties, on appreciation the trial Court gave its findings on such issues against the appellants/plaintiffs, sent back the matter to the Appellate Court. Thereafter, the Appellate Court on consideration by affirming the judgment and decree of the trial Court dismissed the appeal on which the appellants have come to this Court. 5. On earlier occasion vide order dated 16-7-2008, this appeal was admitted for final hearing on the following substantial question of law:- Whether the Court below erred in not setting aside ex-parte decree against plaintiff Suhavan when no evidence was available in the case that summon was served on her in Civil Suit No. 54-A/1977? 6. Appearing counsel for the appellants Shri K. B. Bhatnagar by referring the pleadings of the parties, recorded evidence and the exhibited documents said that it was proved with all probability that the judgment and decree was obtained by the principal defendant No. 1 Devlal in his Original Suit No. 54-a/77 without serving the summons of such suit on the principal plaintiff No. 2 Smt. Suhawan Bai in accordance with the procedure prescribed under Order 5 of the Civil Procedure Code. In the record of such original civil suit the service report regarding service of such summons on the deceased/plaintiff Smt. Suhawan was not available. In the lack of such service report the approach of the Courts below holding the summon of such suit was duly served on Smt. Suhawan Bai is not sustainable and prayed to answer the aforesaid question in favour of the appellants by allowing this appeal. 7. On the other hand, responding the aforesaid arguments, Shri R. S. Saini learned appearing counsel of the respondents by justifying the impugned judgment and decree said the same is based on proper appreciation of evidence and also is in conformity with law, it does not require any interference under section 100 of Civil Procedure Code. 7. On the other hand, responding the aforesaid arguments, Shri R. S. Saini learned appearing counsel of the respondents by justifying the impugned judgment and decree said the same is based on proper appreciation of evidence and also is in conformity with law, it does not require any interference under section 100 of Civil Procedure Code. According to him, the concurrent findings of the Courts below holding the summons of the earlier suit was duly served on Suhawan being based on appreciation of evidence could not be interfered at this stage as it does not give rise to substantial question of law covered under section 100 of Civil Procedure Code. The framed question could not be treated to be a substantial question of law. He also said that in any case, in the lack of deposition of Suhawan Bai, who was alive at the time of recording the evidence and did not enter in the witness box, it could not be held that summons of the earlier suit was not served on her. Non-examination of Suhawanbai and the admission of the appellant No. 1 in his deposition stating that the summons was received by him and his wife, thereafter, they came to the Court and returned back, are sufficient circumstance to draw the inference that the summons of the earlier suit was duly served on her. In such premises, the approach of the Courts below in this regard does not require any interference and prayed for dismissal of this appeal. 8. After hearing the parties and perusing the records along with the impugned judgments I am of the considered view that in the available circumstances on appreciation of the evidence the Courts below have not committed any error either in dismissing the suit and the appeal filed under section 96 of the Civil Procedure Code. 9. It is undisputed fact on record that the Civil Original Suit No. 54-A/1977 for declaration and possession was filed by the principal defendant No. 1 Devlal against the late Smt. Suhawanbai and present appellant No. 1 and such suit was proceeded ex-parte against them and ultimately the same was ex-parte decreed vide judgment dated 8-11-1977 by Civil Judge Class-II. The record of such Civil Original Suit No. 54-A/77 is also available with the records of the Courts below. The record of such Civil Original Suit No. 54-A/77 is also available with the records of the Courts below. Now this Court has to answer the question whether the summons of Civil Original Suit No. 54-A/77 was duly served on late Smt. Suhawanbai or not. The original summons of other defendants with service report except, the summons of Smt. Suhawanbai, are available in the record of Civil Original Suit No. 54-A/77. 10. There is a concurrent finding of both the Courts below based on appreciation of the evidence and the record of such earlier suit, holding the summons of such suit was duly served on late Smt. Suhawanbai also. It is settled proposition of law that the concurrent findings if based on proper appreciation of admissible evidence then, the same could not be interfered at the stage of second appeal. In such premises, I deem fit to examine the evidence adduced by the parties in the instant case. The appellant/plaintiff No. 1 Pandru (PW-1) on recording his deposition in paras 17 and 18 in his cross-examination deposed as follows :- 11. Accordingly, the appellant No. 1 Pandru admitted that before five years from the date of receiving the notice Ex.P/1 and Ex.P/2 of the execution proceeding of the decree passed in earlier Suit No. 54-A/77, he and his wife received the notices on which he accompanied with Surakhi, Smt. Suhawanbai and Bhuwanlal came to the Court and returned back to their home. 12. Besides the above on sending the matter by the Appellate Court in the first inning of the case vide order dated 24-11-1998 to the trial Court to send the findings on some issues. On examination the witness of the appellant namely Biranlal Marko (PW-4) deposed that he being process server served the summons of aforesaid Civil Original Suit No. 54-A/77 on Pandru and other defendants. He further stated that he could not say any thing about non-placement of the service report of Smt. Suhawanbai in such record. Accordingly, the aforesaid admission of the Pandru is further supported by this witness. So it could not be said the summons of earlier suit was not served on Suhawan bai. 13. It is settled proposition of law that admission of the party with respect of some material facts of the case is binding against him. Accordingly, the aforesaid admission of the Pandru is further supported by this witness. So it could not be said the summons of earlier suit was not served on Suhawan bai. 13. It is settled proposition of law that admission of the party with respect of some material facts of the case is binding against him. Therefore, in view of aforesaid admission of the Pandru supported by Biranlal Marko (PW-4) this Court has no option except to reply the same and hold the summons of earlier suit was duly served on Suhawan bai. My this view is fully fortified by the decision of the Apex Court in the matter of Nathoo Lal vs. Durga Prasad, reported in AIR 1954 SC 355 in which it was held as under : 14. What is admitted by a party to be true must be presumed to be true unless the contrary is shown. There is no evidence to the contrary in the case. 14. Such question is also answered by the Apex Court in the matter of Thiru John V. Subramhananyam vs. The Returning Officer and others, reported in AIR 1977 SC 1724 as under :- 15. It is well settled that party's admission as defined in sections 17 to 20 fulfilling the requirements of section 21, Evidence Act, is substantive evidence proprio vigore. As admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established. In this case it is apparent that contrary to the aforesaid admission of Pandru, no evidence has come on record which is destroying the same. In such premises, the Court is bound to presume that the notice of earlier suit was served on Smt. Suhawan bai. 15. Apart from the above, undisputedly, late Suhawanbai died on dated 27-3-2004 after remanding the matter by the Appellate Court to the trial Court for calling the findings on Issue No. 6(a)(b)(c) and 7 vide order dated 24-11-1998 in Civil Regular Appeal No. 21/98. 15. Apart from the above, undisputedly, late Suhawanbai died on dated 27-3-2004 after remanding the matter by the Appellate Court to the trial Court for calling the findings on Issue No. 6(a)(b)(c) and 7 vide order dated 24-11-1998 in Civil Regular Appeal No. 21/98. As per available record, at initial trial of the case on behalf of appellant as many as three witnesses namely; Pandru (PW-1) Bhuwanlal (PW-2) and Balku Singh (PW-3) had been examined on 3-7-1996, on such day or subsequent to that till passing the judgment and decree by the trial Court at the first instance on 20-11-1996, Smt. Suhawanbai the then who was alive, did not enter in the witness box and examined herself in support of the case the summons of the earlier suit was not served on her. To prove such fact she was the only person who knew and could have proved the fact that the summons of earlier suit was not served on her, when the same were duly served on the other defendants including her husband the appellant No. 1 Pandru. I have not found any explanation on behalf of appellants/plaintiff in this regard that why Smt. Suhawan bai did not enter in the witness box. It is settled proposition of law when the person having the personal knowledge regarding some material facts of the case then, he/she should enter in the witness box to state such material fact. If she did not choose and produce herself for examination and cross-examination in the case then such circumstance is sufficient to draw an inference against her to draw the inference that the summons of earlier suit was served on her. My such view is fully based on a decision of the Apex Court in the matter of Vidhyadhar vs. Manikrao and another, reported in AIR 1999 SC 1441 in which it was held as under: 16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decision passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh vs. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh vs. Ajaipal Singh, AIR 1930 Lah 1 and the Bombay High Court in Martand Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, AIR 1970 MP 225 , also followed the Privy Council decision in Sardar Gurbaksh Singh's case AIR 1927 PC 230 (supra). The Allahabad High Court in Arjun Singh vs. Virender Nath, AIR 1971 All 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass vs. Bhishan Chand, AIR 1974 P&H. 7 , drew a presumption under section 114 of the Evidence Act against a party who did not enter into the witness box. 16. In view of the aforesaid discussions it is held that Courts below have not committed any error in holding the summons of Civil Original Suit No. 54-A/77 was duly served on Suhawanbai and in such premises, the suit was rightly proceeded ex-parte against her. Accordingly the aforesaid question is answered. 17. Although in the course of arguments, following case laws were cited by the applicant's counsel :- 1. Suresh Kumar vs. Godavaribai, 1991 MPLJ 843 , Bhojai vs. Salim Ullah and others, AIR 1967 All. 221 , 2. Ajablal vs. Devilal and another, AIR 1964 Raj. 71 , 3. Haricharan Rai vs. Dwarika Prasad Singh and others, AIR 1961 Pat 88 , 4. A. S. Sankara Pandia Thevar vs. Syed Abdul Rahman Rowther, AIR 1957 Mad 512 , 5. Sujata Sarkar vs. Anil Kumar Duttani, 2009 (2) MPLJ 156 , 6. Kamlabai vs. Gangaram Dande MPWN Note 64, 7. Rattan Dev vs. Pasam Devi, Note 15 MPWN (SC), 8. Lilabai vs. Shri Triyoginarayan, 1997 (2) MPLJ 478 , 9. Reena Sadh vs. Anjana Enterprises, AIR 2008 SC 2054 , 10. Mahesh Yadav and another vs. Rajeshwar Singh and others, 2009 (3) MPLJ 297. 18. So far the principles laid down in the aforesaid cases are concerned, this Court did not have any dispute but the same being distinguishable with the case at hand on facts, specifically in view of aforesaid admission of the appellant No. 1/plaintiff Pandru and non-examination of Smt. Suhawanbai, the same are not helping to the appellants. 18. So far the principles laid down in the aforesaid cases are concerned, this Court did not have any dispute but the same being distinguishable with the case at hand on facts, specifically in view of aforesaid admission of the appellant No. 1/plaintiff Pandru and non-examination of Smt. Suhawanbai, the same are not helping to the appellants. As none of them has been decided taking into consideration the set of facts available in the case at hand. Once it is found that the summons was duly served on Smt. Suhawanbai then, the manner or the procedure in which the summons was Served do not require any judicial scrutiny. 19. In view of the aforesaid, answer of the framed substantial question of law holding the summons of earlier suit was duly served on late Suhawan bai, this appeal, by affirming the impugned judgment and decree of the Courts below, is hereby dismissed. There shall be no order as to the cost. 20. Decree be drawn up accordingly.