IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 8 of 2000 Reserved on.: 28.8.2009. Date of decision : 18.9.2009. Vijay Singh and others …Appellants. Versus Julfa Devi and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1yes. For the Appellants: Mr. Karan Singh Kanwar, Advocate. For the Respondents: Mr. Neeraj Gupta, Advocate. Deepak Gupta, J. This Regular Second Appeal was admitted on the following questions of law:- 1. Whether the written statement dated 19.04.1992 Ex. DD contains the admission on the part of proforma- defendant Smt. Kalawati and if so, whether such admission is binding on the plaintiff Smt. Julfa Devi? 2. Whether the alleged admission as contained in the written statement Ext. DD has been validly withdrawn and/or shown to be wrong by the person making it? Briefly stated, the facts of the case are that Smt. Julfa Devi, respondent No.1 herein filed a suit in the Court of Senior Sub Judge, Nahan, for declaration to the effect that she alongwith her sister Kalawati (proforma defendant No.6 in the suit) were in possession of the suit land measuring 9-15 bighas comprised in Khata 1 min, Khatauni No.2, Khasra Nos. 187, 220, 222, 258 and 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 420 situate in village Daro Dewaria, Tehsil Pachhad. The averments in the suit were that the suit land was owned by defendants No. 1 to 5 (appellants herein). It was alleged that Shankru, father of the plaintiff and defendant No.6 was a non occupancy tenant on the said land. On the death of Shankru his widow Devku Devi came in possession of the suit land. After her death, her tenancy rights were inherited by her daughters i.e. the plaintiff and defendant No.6. Mutation conferring proprietary rights of the said land in favour of the plaintiff and defendant No.6 was attested. However, the defendants started interfering in the suit land and hence the suit. The defendants admitted that the suit land was owned by their predecessor-in-interest Shri Mathu Ram. However, according to them Shankru predecessor-in-interest of the plaintiff and proforma defendant No. 6 was only a tenant on two bighas and on his death Devku became a tenant over two bighas of land only. According to the defendants, after the death of Devku, this land was not occupied by the plaintiff and defendant No.6 and therefore, the defendants No. 1 to 5 occupied the same and the entire suit land is in their possession. It would be pertinent to mention that defendant No.6 filed a written statement supporting the stand of defendants No.1 to 5. In this written statement, she submitted that her father Shankru was only in occupation of two bighas of land and the entries in the revenue record showing him to be tenant on more than 9 bighas of land were stated to be incorrect. It was also alleged that in the month of January 1991 the plaintiff agreed to relinquish 1 bigha of land out of the aforementioned 2 bighas in favour of defendants 3 No. 1 to 5. It would be pertinent to mention that this written statement is exhibited as Ext.DD. Thereafter Kalawati sought leave to amend the written statement. This permission was not granted. By means of this amendment, the defendant No.6 wanted to amend the written statement and admit the claim of the plaintiff. This prayer for amendment was rejected. Kalawati, however, appeared in the witness box and made a statement that she had not engaged any counsel in the case nor filed any written statement. She admitted that she had engaged Mr. M.K.Jain, Advocate, as her counsel but states that when she came to know that something hanky-panky is going on, she engaged Shri V.C.Jain, Advocate. She stated that she had not engaged any counsel previously. According to her, her father was in possession of 9 bighas and 15 biswas of land, which was inherited by her mother and then by herself and the plaintiff. According to her, they are cultivating the said land. She denied that they had ever relinquished any land in favour of defendants No. 1 to 5. She has admitted her signatures on the various documents, i.e. the original written statement as well as the application for amendment and the amended written statement. She was confronted with the certain portion of the original written statement where she had supported the case of defendants but denied that the written statement was written on her instructions. She also took up the plea that her mental state was not proper and she had been undergoing treatment on this count. As is apparent from the substantial question of law framed the entire edifice of the case of the appellants is built on the admission made by defendant No.6 in her written statement. Both 4 the Courts below came to the conclusion that the admission made by the defendant No.6 had been explained by her and that the plaintiff was not bound by such admission. Relying on the revenue record and the other evidence led before it the learned trial Court decreed the suit of the plaintiff which decree was upheld in appeal. Before dealing with the issue of the admission, I think it would be pertinent to make reference to the revenue record, which has been proved on record. In the Jamabandi for the year 1950-51 Ext.P5, Shankru is shown in possession as non-occupancy tenant under Mathu co-owner over two portions of the suit land measuring 9-1 bighas & 1-7 bighas, i.e. total of 10-8 bighas of land. Ext.P-4 is the Jamabandi for the year 1954-55 and in this the possession of Shankru as non-occupancy tenant is too shown over 9-12 & 1-7 bighas i.e. 10-19 bighas of land. Ext.P-3 is the Jamabandi for the year 1958-59 and in this the total land shown in occupancy of Shankru is 9-15 bighas. Ext.P-2 is the Jamabandi for the year 1987-88 in which Devku widow of Shankru is shown as non- occupancy tenant over 9-15 bighas of land. In Ext.P-1 Jamabandi for the year 1992-93 the plaintiff and proforma defendant No.6 are shown in possession of 9-15 bighas of land as non-occupancy tenant. In this Jamabandi there is also one note that the proprietary rights were conferred on the plaintiff and her sister Kalawati vide mutation No. 208. There is another note that Julfa Devi, plaintiff mortgaged her portion of the land for a sum of Rs.10,000/- with the H.P. State Cooperative Bank. The main contention made on behalf of the appellants is that the admission made by the proforma defendant No.6 is binding on the plaintiff also, since, the plaintiff had filed the suit 5 claiming to be owner of half share and in the plaint it was specifically pleaded that Kalawati could not join as plaintiff due to certain reasons, however the interest of the plaintiff and Kalawati were not adverse to each other. Learned counsel Shri Kanwar submits that an admission made by one of the persons jointly interested in the subject matter of the suit binds the other person when their interest is common. He has referred to a judgement of the Patna High Court in Mt. Ramjhari Kuer and others vs. Deyanand Singh and others, A.I.R. 1946 Patna 278, wherein the Court held as follows:- “The principle is that when several persons are jointly interested in the subject matter of the suit, an admission of any one of these persons is receivable not only against himself but also against the other defendants, whether they be all jointly suing or sued, provided that the admission relates to the subject matter in dispute and be made by the defendant in his character of a person jointly interested with the party against whom the evidence is tendered. The requirement of the identity in legal interest between the joint owners is of fundamental importance.” He has also placed reliance on another full bench judgement of the Patna High Court in Ambika Devi and others vs. Balmakund Pandey and others, AIR 1981 Patna 111, wherein it was held as follows:- “An admission must be a clear and unambiguous statement. The value of admissions must depend upon the circumstances in which they are made and possible motives for incorrect statements by interested persons should not be ignored. Where several persons are jointly interested in the subject-matter of the suit, the general rule is that the admission of any one of these persons is receivable against himself and fellows, whether they be all jointly suing or sued or whether an action be brought in favour of or against one or more of them separately, provided the admission relates to the subject-matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered.” 6 Lastly reliance has been placed on Bhura and another vs. Bahadursingh and another, AIR 1976 Rajasthan 249, wherein it was held as follows:- “When several persons are jointly interested in the subject-matter of the suit an admission of any one of them is receivable against himself and fellows, whether they be all jointly suing or sued, provided the admission related to the subject-matter in dispute and is made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered.” On the other hand, Shri Neeraj Gupta, learned counsel for the respondents, has relied upon a judgement of the Apex Court in Gautam Sarup and Leela Jetly and others, (2008) 7 SCC 85. This was a case wherein the question was whether a party who had made certain admission in the pleading could be allowed to amend the pleading and resile from the same. The Apex Court held as follows:- “28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other. 29. An explanation can be offered provided there is any scope therefor. A clarification may be made where the same is needed.” The first question which arises is that whether Kalawati was aware of what was written in the original written statement Ext.DD. Admittedly, she is an unlettered lady not knowing English at all. The written statement virtually gives up all her rights which she had in the land as per the revenue records. A presumption of truth is attached to the revenue records and this presumption has to be rebutted by leading cogent evidence to the contrary. The record shows that right from 1950-51 Shankru, then Devku and 7 thereafter plaintiff alongwith defendant No.6 were in possession of the suit land. True it is that there is some discrepancy in the area of the land as reflected in the Jamabandies Ext.P-4 and Ext.P-5. However, the land mentioned in those Jamabandies is more than 9 bighas 15 biswas now claimed by plaintiff and defendant No.6. Thereafter, the entries in the revenue record are consistent that it was 9 bighas and 15 biswas of land which was in possession of the plaintiff, defendant No.6 and their predecessors as non-occupancy tenant. Why would a person totally relinquish her tenancy and ownership rights? There should have been some explanation for the same. The learned trial Court has held and rightly so that though the document Ext.DD may have been signed by Kalawati, there is nothing on record to show that the said written statement was read over and explained to her. The verification does not contain any such endorsement. The written statement was filed on 20.12.1992. One cannot lose sight of the fact that thereafter defendant filed an application in the year 1996 for amending the written statement. The application for amendment may have been rejected but this clearly shows that the defendant No.6 wanted to retract her admission. Thereafter, she appeared in the witness box and clearly stated that what was stated in the original written statement Ext.DD was not at her instance. Despite this statement made by her defendants No. 1 to 5 never thought it fit to examine Mr. M.K.Jain, the counsel who had drafted the written statement and who was the best person to state whether such a written statement was drafted at the instance of Kalawati or not. 8 In my view, reasonable explanation has been given by the defendant No.6, to resile from the admission and she cannot be bound by the same. It would also be pertinent to make reference to Section 31 of the H.P. Tenancy and Land Reforms Act, 1972, which reads as follows:- “Relinquishment: No relinquishment of a tenancy shall be made by a tenant in favour of land owner. However, if a tenant wants to make a voluntary surrender of his tenancy land, the same shall be in favour of the State Government. The State Government shall have right to induct any suitable tenant or landless agricultural labourer to the relinquished land in the manner to be prescribed.” A bare reading of the aforesaid provision shows that a tenant cannot relinquish his tenancy in favour of the land owner. In case he wants to make a voluntary surrender of the tenancy land the same can only be in favour of the State Government. The admission, if any, made by the defendant virtually amounts to relinquishment of tenancy and therefore is hit by Section 31 and is no admission in the eyes of law. It has been urged that by the admission defendant No.6 has not relinquished her tenancy but has admitted that Shankru was only a tenant over two bighas and not over 9-15 bighas. This is just a play of words. The revenue records clearly show that Shankru, thereafter Devku, and thereafter plaintiff alongwith defendant No.6 were in possession of 9-15 bighas. Even proprietary rights were conferred in favour of the plaintiff and defendant No.6. Any statement whereby the tenancy rights recorded for so long in the revenue record were to be taken away would amount to relinquishment. 9 Even otherwise, I am of the opinion that the admission of defendant No.6 could not have bound the plaintiff. The judgements wherein admission made by one co-owner has been held to be binding on the other co-owner have all been made in the context where the co-owners were jointly proceeding in the litigation. Not only was their interest identical but they were jointly pursuing their interest. In the present case, the plaintiff had filed a suit in her individual capacity. No doubt she had stated that the suit was also for the interest of Kalawati but Kalawati had not joined her in the filing of the suit and therefore any admission by Kalawati in the suit could not bind the plaintiff. Both the Courts have come to the conclusion that respondent No. 6 cannot be bound by her admission since she has given valid reasons explaining the circumstances under which the so called admission was made. They have found that she cannot be bound by the said written statement and have permitted her to retract from her admission. This is a pure finding of fact, which cannot be interfered in second appeal. In view of the above discussion, the substantial questions of law are answered against the appellants and in favour of the respondents. Consequently, the appeal is dismissed. In the peculiar facts of the case, the parties are left to bear their own costs. September 18, 2009. ( Deepak Gupta ) ™ Judge.