1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 694 OF 2010 Satyabhamabai W/o Eknath Narvade and another. .... APPELLANTS V E R S U S Deobai W/o Bansi Narvade & another .... RESPONDENTS ----------------------------------------------------------------------------------------------------------------- Mr. V.J.Dixit, Sr. Counsel instructed by Mr. A.N.Nagargoje, Advocate for the appellant. Mr. V.I.Thole, Advocate for respondent no. 1. ----------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 26/10/2010 ORAL ORDER : 1. This is original defendant’s Second Appeal. 2. The present respondents/original plaintiffs have filed Suit for declaration that the sale deed executed by defendant no. 1 in favour of defendant no. 2 in respect of part of the suit property is illegal, null and void and for perpetual injunction restraining the plaintiffs from interfering in their possession. The trial Court decreed the Suit. The defendants preferred Appeal. The appellate Court confirmed the findings and the decree of the trial Court. The defendants have assailed the said Judgment in the present Second Appeal. 2 3. Mr. V.J.Dixit, the learned Sr. Counsel submitted that the Judgments passed by the Courts below are based on the alleged admission given in tenancy proceedings. According to the learned Sr. counsel, the said application given before the tenancy Court and the certified copy of which was produced is not the public document but a private document and will have to be proved as any other private document. Mr. Dixit, the learned Sr. Counsel further contended that unless the said document is confronted and an opportunity is given to the party to explain under what circumstances the said admission has been given, the same can not be relied upon directly U/s 17 of the Evidence Act. 4. The learned Sr. Counsel further submitted that the Courts below have expressed that the said admission in the application operates as estopple. The same can not come within the ambit and meaning of the expression ‘ estopple ’ as is laid down U/s 115 of the Indian Evidence Act. According to the learned Sr. Counsel, the totality of the evidence ought to have been taken into consideration and the Judgment could not have been passed on the alleged admission in the tenancy proceedings. 5. Per contra, Mr. V.I. Thole, the learned counsel for the respondent submitted that the admissions are directly admissible and the Courts below have also considered the effect of the said admission and also have relied on the Judgment of this Court while coming to the conclusion that it is not necessary to confront the said admission. 3 6. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments delivered by both the Courts. 7. The plaintiffs claim that they are the owners and possessors of G.No. 98 to the extent of 16 Acres and 20 gunthas. According to them, the said property was given in partition to Laxman, which was inherited by their mother Punjabai and after her death, the plaintiffs are the owners of the property. The Courts have relied on the application given by defendant no. 1 in the tenancy proceedings, wherein in unequivocal terms, defendant no. 1 accepted the present suit property to be allotted to the share of Laxman, interalia Punjabai. 8. The contention of the learned Sr. counsel for the appellant that the admission or the previous statement can not be made directly admissible unless it is being confronted and without giving an opportunity to the witness is concerned, is not countenance by law. Under Section 145 of the Indian Evidence Act, the cross examination as to the previous statement in writing is not relevant unless such writing is shown to the “ witness ”. The distinction is to be drawn between the “ party ” and the “ witness”. Defendant no. 1 is a party to the proceedings and if a party to the proceedings makes any admission in any document, the same is directly admissible in evidence. The said admission is admission proprio vigore as is held by the Apex Court in the case of Thiru John ( in C.A. Nos. 1895 -1896 of 1974) V. Subramhamanyan ( in C.A. No. 1907 of 1974) V/s The Returning Officer and others reported in AIR 1977 Supreme Court – 1724. The Apex Court has held that parties’ admission is the substantive evidence. If the 4 same is clearly and unequivocally made, the same is the best evidence against the party making it. 9. In the present case, the defendants have not been in a position to rebut the said presumption. Even the defendants have nowhere denied of not having filed such an application. The proof of document would have been required if the said document would have been denied by the defendants, but the defendants have nowhere denied of having made such an application in the tenancy proceedings. In fact the tenancy proceedings were initiated by virtue of the said application. In light of the same, there would be no impediment to consider the said application as admission. 10. Regarding the principle of estopple to the said statements made by defendant no. 1 in the tenancy proceedings as applied by Courts below ( Exh. 83 ), the same is a ‘ misnomer ’. It amounts to admission, the same is on a stronger footings than estopple. So, merely because the Courts below have used the word estopple, the same would not affect the merits of the decision. 11. The partition was effected in the year 1950-51. There is no direct evidence of partition. In such circumstances, the Courts below taking into consideration the admission of defendant no. 1, so also other attending evidence and circumstances, have arrived at conclusion by preponderance of probabilities. The said conclusion arrived at is plausible conclusion. In such circumstances, as 5 the same is not perverse, but it is the plausible conclusion. No case for interference is made out in the Second Appeal. 12. In the result, the Second Appeal being sans substantial question of law, is dismissed , however with no order as to costs. 13. In view of dismissal of the Second Appeal, the Civil Application does not survives and accordingly disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 694.10