Gangaram Kanhyalal vs Pooran Gulab and Others

Chaturvedi, J.—This is Plaintiff''s second appeal u/s 525 Gwalior Code of Civil Procedure. The Plaintiff suit for title and for possession of a house was dismissed by the trial Court and his appeal has been dismissed by the first appellate Court. He has, therefore, come in second appeal to this Court. The plaint had alleged that the house in question belonged to the Plaintiff, that Pooran Defendant I had been in occupation of this house and his and his son Ram Prasad (Defendant 2), without Plaintiff''s authority, sold this house for a sum of Rs. 1,500/- to Defendants 3 to 6. The house, it was alleged, was at the time of the institution of the suit, in possession of the Defendants 3 to 6.

Now the first issue was whether the Plaintiff was the owner of the house? Oral evidence has been adduced by the parties and the trial Court which had the advantage of seeing the witness did not believe the evidence adduced on behalf the Plaintiff. Now it is very important in this case that Plaintiff Gangaram did not appear as a (witness?) and no reason is forthcoming what prevent him from coming to the Court. Mr. Himayatulla (sic) on behalf of Gangaram Plaintiff Appellant, drew must (sic) attention to the statement of Khushali and Heera two witnesses produced by the Plaintiff and I do not find anything in their statements which incline me to take a view different from taken by the trial Court, on the point.

Taking the two testimonies as a whole on (sic) naturally comes to the conclusion that Gangaram Plaintiff and Pooran Defendant l come from the (sic) same family and formerly the house may has (sic) been a joint one or may have belonged to Gagaram; but nearly twenty-five years before the institution of the suit it appears that Gangaram has left the house and gone in service at Bhopal and Pooran had been in sole charge of the house and (sic) treated the house as it was his exclusive property. (sic) The Plaintiff''s witness Khushali clearly deposes the effect that Gangaram Plaintiff did not spending a single penny on the repairs of the mud house that everything was done by Pooran and his authority (sic) Keshar who looked after the house and who spent (sic) money over construction of the whole house. The statement is clearly to the effect that in fact the (sic) house was re-constructed by them. Clearly the (sic) evidence of Heera and Khushali does not at this (sic) help the Plaintiff but helps the Defendants. The (sic) attention was also drawn to the statements Pooran and I do not find therein anything which may indicate that the house ever belonged Gangaram. I, therefore, come to the conclusion that so far as the evidence about the ownership and of possession of the house in question concerned the decision of the trial Court and of the first appellate Court cannot be challenge in this second appeal.

Mr. Himayatulla then invited my attention (sic) to a document dated 23-2-47 executed by Pooran (sic) before a Panchayat. It appears that after to (sic) institution of this suit, in order to settle the (sic) family dispute between Pooran Defendant 1 (sic) Gangaram Plaintiff a Panchayat assembled, it decided that the house was of Gangaram stay (sic) then, according to the decision of the Panchayat (sic) Pooran executed this deed stipulating that he would give to Gangaram before 15-3-47 some land other (sic) in Mohall Nakkasa or in Baraipur, which will adequately compensate Gangaram for the of this house. I agree with the trial Court that this document can in no way amount to an admission by Pooran that the property belonged Gangaram. It is clearly written in accordance the order of Panchas and I do not understand that this suit can be decreed on the basis of this document. I do not understand why the Plaintiff Gangaram did not file a suit for specific performance of the contract entered into by Pooran, the evidence of which has been furnished by this document.

The only point worth consideration in this appeal is about the value to be attached to the statements of Behari P.W. 3, Kundan P.W. and (sic) Mangal P.W. 5 who deposed that Pooran and (sic) admitted before the Panchas that the house had (sic) belonged to Ganga Ram Plaintiff and that he (sic) had sold this house without authority to Defendants 3 to 6.

Mr. Patankar, counsel for the Respondents, used (sic) that the testimony of these Panch witness (sic) about a statement made by Pooran Defendant 1 during the period of negotiations is not was (sic) issible and the learned Counsel placed reliance on some observation of their Lordships (Harries and Rachhpal Singh JJ.) of the Allahabad High Court in - Shibcharan Das Vs. (Firm) Gulabchand Chhotey Lal, to the effect that where negotiations are being conducted with view to settlement it should be held that these negotiations are being conducted "without preparties," (sic) and that it is not open for one of the parties (sic) to give evidence of an admission made by another. In my opinion, these observations were made without considering the provisions bodied in Section 23, Evidence Act and without suffering to the case, closely followed the views of hear (sic) J. in the case of - ''Mohabeersingh v. shujoo (sic) Singh'' 20 WR 172 (B) which was a case not (sic) governed by the provisions of the Evidence Of 1872.

With respect I may state that the correct view certainly that of the Patna High Court (Coutts Das JJ.) in - ''Punjab Singh v. Ramautar Singh AIR 1920 Pat 841 (C) that an admission before (sic) an arbitrator is admissible in evidence though it is for the Court dealing with the facts attach whatever weight it thinks proper to iach (sic) to such an admission. I am clear in my side (sic) that the rule enunciated in Section 23, Evidence Act (sic)does not apply to such admissions. I am certified (sic) in this view also by rulings of the Calcutta High Court reported in - ''Kowsulliah (sic) Dasi v. Mukta Sundara Dasi'' 11 Cal 588 and - ''Meajam v. Alimuddin Mea'' AIR 1917 497 (E), where it had been held that, in the filing (sic)of an express or implied understanding been (sic) the parties that the evidence of the causation (sic) during the period when negotiations settlement of the claim are being carried on to be tendered, such conversation cannot held (sic) to be privileged and must be held to be able (sic) in evidence. In the present case there indication that the parties themselves reviled (sic) the conversation as being a privileged one. Held accordingly that the evidence of these witness was rightly admitted by the trial Court.

Now the trial Court has taken view that witnesses could not exactly give an account what actually the words were which Pooran used when he is alleged to have admitted fact that Ganga Ram was the owner of the suit house. I have gone through these depositions carefully and I find that the trial Court and the first appellate Court are right in arriving at this conclusion and the statements cannot be taken to prove Pooran''s admission about Gaugaram''s ownership of this house. It may also be added here that an admission of one co-Defendant is not receivable against another merely by virtue of his position as a co-party in the litigation. As Sir Ashutosh Mookerjee J. at p. 974 of AIR 1918 Cal 071 - ''Ambar Ali v. Lutfe Ali (F), remarked:

If the rule were otherwise, it would in practice permit a litigant to discredit an opponent''s claim merely by joining any person as the opponent''s co-party, and then employing that person''s statements as admissions. Consequently, it is not by virtue of that person''s relation to the litigation that the admission of one can be used against the other; it must be because of some priority of title or of obligation. The vital point for consideration, accordingly, is whether there is such., priority of obligation or title between two persons as to justify the use of the admission of one against the other; and, plainly, this must be determined by reference to the relation between the parties at the time the admission is made.

As a matter of probative value, the admission of a person (such as one joint-owner) having precisely the same interest at stake as another (his co-owner), will, in general, be likely to be equally worthy of consideration; there being an identity of legal liability, the two persons may be deemed one so far as affects the propriety of discrediting one by the statements of the other. This reason, however, ceases to be applicable where, as in the case before us, the admission was made at a time when the parties had no community of interest.

So even if it had been held that Pooran''s statement before Panchas amounted to his admission of Gangaram''s ownership of the house in dispute even then it could not have been of any weight as against Defendants 3 to 6 u/s 18, Evidence Act; for, Pooran had at that time ceased to have any interest in the house in question as the ownership of the house had been vested in Defendants 3 to 6, and who were also at that time in its possession. It may also be added that Pooran or his son did not enter appearance in this case and proceedings against them were ex parte. The suit was contested only by Defendants 3 to 6 and the law is well settled that statements made by persons from whom the parties to a suit have derived their interest in their subject-matter of the suit are admissible as admissions only when the admissions are of date prior to the date of transfer - ''J.C. Galstaun v. Abid Husain'' AIR 1924 Oudh 19 (G) and that a purchaser is not bound by an admission made by his vendor subsequent to the purchase made by him: ''Maung Aung v. Maung Shwe Lin'' AIR 1923 Rang 51 (H). In these circumstances I find that there is no force in this appeal which must fail. I, therefore, dismiss it with costs.