IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.323 of 1997. Judgment Reserved on: 17.11.2008. Date of decision: 02.12.2008. Budhu & Others ….Appellants Versus Tulsi & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the Respondents: Mr.Rajiv Jiwan, Advocate. Dev Darshan Sud,J. This is the defendants’ appeal against the judgment and decree of the learned District Judge dismissing the appeal preferred by the appellants herein against the judgment and decree of the learned trial Court decreeing the suit of the plaintiff-respondent granting a declaratory decree that the plaintiff and proforma defendant No.3 are the owners of the suit land comprised in Khasra Nos.445, 530, 531, 558 and 572, Khewat No.139, Khatauni No.158, measuring 17-2 bighas situate in village Asa Majari, Pargna Bahadarpur, Tehsil Sadar, District Bilaspur, H.P., the appellants are 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 licencees of the land. A decree for possession as prayed was passed in favour of the plantiffs. The plaintiff Smt.Durgi, whose estate is now represented by respondents No.1 to 4, filed a suit for five plots of land comprised in Khasra Nos.445, 530, 531, 558 and 572, praying for a decree for declaration and possession that she is the owner of the suit land. One of the allegations in the plaint was that the appellants-defendants were in possession of the suit land and have not restored its possession to the plaintiff despite the fact that they have no possessory right. One of the pleas of the plaintiff was that “the defendants are also residents of Village Panjail Kalan, and asa majari and are in possession of the suit land with the permission of the plaintiff and proforma defendant.” It is pleaded that they were never inducted as tenants over the suit land on payment of rent. The possession of the defendants was pleaded to be that of a trespasser. The plaintiff also pleaded that under the Himachal Pradesh Tenancy and Land Reforms Act, 1972, defendants applied for grant of proprietary rights which application was allowed by the Land Reforms Officer, which order was set aside in appeal. The suit of the plaintiff was resisted on a number of pleas; the main being that the possession of the defendants over the suit land was adverse. The learned trial Court on the settled issue held that the defendants were licencees of the suit land. One of the 3 defendants had relied upon the written statement Ex.DW- 2/A filed by Smt.Surju mother of the plaintiff in another suit filed by one Dwarku in which the plaintiff had admitted possession of the defendant to be adverse. The learned trial Court brushed aside this pleading by saying that it has no relevance and does not establish the case of the defendant(s). On the totality of the evidence, the learned trial Court negatived the plea of adverse possession and granted a decree, as prayed for. The learned appellate Court, has affirmed these findings. The entire evidence was re-considered particularly that of the defendants on the plea of adverse possession based on revenue record Ext.D-1, Ext.D-2, Ext.D-3 and Ext.D-4 Jamabandies for the years 1953-54, 1957-58, 1961-62, 1965-66, respectively. In all these revenue papers, the entry in the column of rent was “Gair Mauroosi Bila Lagaan Ba Bajah Nan Parcha”, which the Court interpreted to mean that the defendants were tenants paying no rent but they were only providing maintenance including clothes etc. to Smt.Suneharu. He also considered the evidence of the defendants holding that although the defendants had pleaded their possession for the last more than 36 years, but that did not prove that their possession was adverse. Ex.DW-2/A, the written statement on which reliance was placed by the defendants, was held as not proving the case of the defendants. The Court holds that one Shri Dhuru was the tenant of the suit property 4 and after his death the property was inherited by his mother Smt.Suneharu and thereafter by the plaintiff and proforma defendant No.3 and their mother Smt.Surju. The Court holds that the burden lies on the person, who claims to have acquired title by way of adverse possession to prove this claim by leading clear and cogent evidence. The Court proceeds to adjudicate the controversy by stating that presumption of truth is attached to revenue entries, but such presumption can be rebutted. The evidence on record was insufficient to establish this plea. It was held:- “… … … … … … … … … The defendants have themselves admitted the title of the plaintiff in para-4 of the written statement, wherein they have admitted that they are enjoying the suit property since Kharif-1960 and prior to that also their possession was open and hostile since the time of the mother of the plaintiff. … … …” This appeal was admitted on 30.4.1998 on the following substantial questions of law:- “1. Whether the plaintiffs or their predecessors could not have inherited the right to the occupancy tenancy on account of the provisions of Section 67 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953? 5 2. Whether Ext.DW-2/4 the admission contained in the written statement filed by the predecessor-in- interest of the plaintiffs- respondents was binding on the plaintiffs-respondents whereby the possession of the defendants- appellants or their predecessors was admitted to be hostile? 3. Whether both the Courts below have misread the material oral and documentary evidence to reject the claim of the defendants-appellants claiming the title to the suit property by prescription when hostility of the title was duly exhibited and proved on record? 4. Whether in absence of creation of any licence in favour of the defendants-appellants or revocation thereof, could a decree for possession be passed in favour of the plaintiffs-respondents whose title was not established on record? Was not it incumbent for the plaintiffs-respondents to prove a better title than the defendants- appellants seeking a decree of declaration and possession? Questions No.2 and 3: Taking question No.5 first, learned counsel appearing for the appellants submits that Ex.DW-2/A is the written statement filed by Surju widow of late 6 Dhungal, Durgi, plaintiff in the present case, and Nagru, both daughters of Dhungal in a suit instituted by Dwarku with respect to the suit land. It was pleaded, “… … … … … Chunki Jagar, Pisar, Jyoti va Pisar muddaiya Marzi Mutdiaya par kabiz hai aur beh apna kabza kayam rakhana chahta hai. Halanki unka kabza nazaiz hai …… … … … … … “ When Durgi appeared as a witness, she confirmed this fact. She states, “… … … … … Theek hai ki Dwarku ne Suneharu ki maut par mere, meri man va behan khilaf daava kiya tha. Theek hai ki usme ham teeno ne jawawdaava likha tha. Usme likhaya tha ki Dwarku dhokhewaz chalwaz aurat hai, uska hak na hai. Us Jawawdaava mein likha tha ki Jagar ka kabza nazayaz hai va use bhal karne vaste daava Dwarku ne kiya hai. … …”, meaning, “it is correct that on the death of Suneharu filed a suit against me, my mother and sister. It is correct that in that suit all three of us had filed written statement. It was pleaded that Dwarku is a clever and a cunning woman and she has no right. In that written statement it was pleaded that Jagar is in unauthorized possession and the suit land had been filed by Dwarku to get possession from him. … … … … …” It is undisputed that the written statement is dated 23.7.1959. The suit has been filed in 1985 i.e more than 25 years after pleading/admitting that the possession of Jagar was Nazayaz meaning un-authorised (without any authority etc.). This is an important 7 piece of admission which has been ignored by both the Courts below. Learned counsel appearing for the appellants places reliance on judgment of the Delhi High Court in Debi Singh vs. Bhim Singh and Others, AIR 1971 Delhi 316, holding: “7. … … … … However, an admission made in Court regarding the true state of affairs should not disentitle the respondents from succeeding merely because of the absence of a plea… … … …” He submits that even if such a plea was not raised in the written statement, Court record could be used to establish the claim of the defendants, more especially when the certified copy of the written statement was proved on the record. He seeks assistance from the provisions of Sections 17, 31 and 58 of the Indian Evidence Act, 1872, (hereinafter referred to as the `Act’) to submit that an admission is the best form of evidence. These provisions may be noticed:- “17 Admission defined.-An admission is a statement, oral or documentary, which suggests any reference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. 31. Admission not conclusive proof, but may estop.- Admissions are not conclusive proof of the matters 8 admitted, but they may operate as estoppels under the provisions hereinafter contained. 58. Facts admitted, need not be proved - No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.” True, that admissions are not perse conclusive proof of the facts admitted. Learned counsel seeks assistance from Section 58 to urge that if there is any formal defect in the proof of Ex.DW-2/A, that would not stand in the way of its consideration by this Court as facts which are admitted need not be proved. With reference to the statement of the plaintiff PW-1, he submits that the facts viz. of unauthorized possession having been proved no other evidence was required. Further, evidence on this point was allowed to be led without any objection from the plaintiff and cannot be discarded at this stage as it is both relevant and is an admission which has not been explained. In Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi and others, AIR 1960 SC 100, while 9 dealing with the provisions of Section 31 of the Act holding:- “11. In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated.” He also relies upon a decision of Bharat Singh and others vs. Mst.Bhagirathi, AIR 1966 SC 405, holding:- “19. Admissions have to be clear if they are to be used against the person making 10 them. Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence”. Learned counsel urged that this principle has been reaffirmed in Union of India vs. Moksh Builders and Financiers Ltd. And Others etc., AIR 1977 SC 409, holding:- “21. Counsel for the respondents have urged for the exclusion of these admissions. The main attack was that they were admissions of a co-defendant 11 and were not admissible against defendant No. 2. As has been stated, we have not taken them into consideration as evidence against that defendant. There is however no force in the other argument that they are not admissible in evidence against defendant No. 3 as he was not confronted with them in the trial court and they were not adverse to the interest of their maker at the time when they were made. It has been held by this Court in Bharat Singh v. Bhagirathi, (1966) 1 SCR 606 = (AIR 1966 SC 405) that an admission is substantive evidence of the fact admitted and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.” In taking this view this Court has noticed the decision in Ajodhya Prasad Bhargava v. Bhawani Shankar, AIR l1957 All 1 (FB) also”. He submits that the admission, having not been explained away was binding on the plaintiff. He relies on the decision of the Supreme Court in Avadh Kishore Dass vs. Ram Gopal and others, AIR 1979 SC 861. Two other decisions are relied upon by the learned counsel, namely, a Division Bench decision of the Madras High 12 Court in Ranganayaki Ammal and others vs. S.R. Srinivasan and others, 1978 HLR, 525, holding: “10. The question arose whether the admission in the pleadings made by the plaintiff in Exhibit B-39 with reference to a suit of 1937 was evidence and was admissible in evidence. Though statements in pleadings are not automatically acceptable as evidence, yet statements made by a person against his own interest and at a time when he could have laid threadbare the correct facts would be admissible evidence and the situation arising out of such candid admissions cannot be lightly got over by the person who pleaded in that way. In Basang Singh V. Farki Singh, AIR 1967 SC 341, the Supreme Court held: “Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.” Lastly, he places reliance on judgment of the Orissa High Court in Biswanath Rana and others vs. Laxman Rana and another, AIR 1971 Orissa 267, holding that admission in the pleading of former litigation is 13 also an admission available for proving a fact unless explained away. The Court held:- “5. … … … … An admission in the pleading is certainly available to be used. The view taken by the Patna High Court in the unreported decision does not lay down the law correctly and the principle stated therein has not received the approval of their Lordships of the Supreme Court. The admission contained in a pleading of a former litigation, it is indeed an admission in the true sense. Is certainly available to be used for all purposes and it cannot be kept out by saying that it was an admission in a former litigation and was meant for that proceeding alone and cannot be taken to be an admission binding in any other suit or for all times to come. Such a distinction is not open in law to be made. If it is an admission, it is so and is certainly an admission for all times to come. Unless exapained away properly an admission is the best vailable support for the adversary. As was indicated by their Lordships of the Supreme Court in the case of Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi, AIR 1960 SC 100. I would accordingly hold that the admission of joint cultivation 14 made in the written statement of the proceeding under Section 145 Cr.P.C. is available to support the claim in the suit.” Learned counsel appearing for the respondents submits that the written statement Ex.DW-1/A cannot be taken to be conclusive of the state of affairs as; (a) the witness has not been specifically confronted with Ex.DW-2/A; (b) it has not been proved in accordance with law. He places reliance on a decision of the Supreme Court in State of Bihar and others vs. Sri Radha Krishna Singh and others, AIR 1983 SC 684. This decision is not attracted to the facts of the present case as the Supreme Court in this case was dealing with the provisions of Sections 5, 35, 40 to 43 of the Evidence Act holding that:- “122. It is also well settled that a judgment in rem like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter parties or not. … … … … … …” He, then, relies on Sanjay Gera vs. Haryana Urban Development Authority and Another, (2005)3 SCC 207, holding that:- “5. … … … … … … …In a civil suit all facts have to be pleaded and proved. But in the present case there is no 15 evidence to substantiate the allegation. It was incumbent on the part of the Haryana Urban Development Authority to substantiate the same by leading proper evidence that the enhancement was effected on account of increase in the price of acquisition of land. But the statement of DW1, the only evidence which has been led by the defendant- respondents is significantly silent on this issue. In civil matters, the rights of the parties cannot be determined just on the basis of any other judgment on question of fact. It is the duty of the defendants to specifically plead and prove their case by leading proper evidence in the matter. … … … .. …” This judgment also does not advance the case of the respondent. The averments in the written statement Ex.DW-2/A have been admitted by the plaintiff in its entirety when she was in the witness box. She has made no attempt to explain them. In these circumstances, there was no need to have actually put the written statement word to word to her. The learned Courts below have just brushed aside this admission without in any manner adverting to the law or facts and arrive at a finding which can be sustained in law. On the second submission made by the learned counsel appearing for the appellant that the document has not been proved in accordance with law or the case pleaded by the defendant is not proved on the record, the submission cannot be 16 accepted as, the learned District Judge, rightly notices that the defendant had pleaded that the plaintiffs were the true owners of the suit land. This is the starting point for establishing a plea of adverse possession. Without admitting the ownership of the true owner, no adverse possession can be claimed as there would be no animus to possess the property as an owner by hostile possession against the true owner. The admission in the pleading by the plaintiff clearly establishes the fact of adverse possession. On a thorough appraisal of the record, I find that the Courts below have brushed aside Ex.DW-2/A and the evidence of PW-1 Durgi who has admitted Ex.DW-2/A. If the possession of Jagar in 1959 was Nazayaz (unauthorized), what other evidence was required to prove the adverse possession of the defendant? Admittedly, the suit was instituted on 30.1.1985 i.e. period of 25 years after such admission has been made. There is nothing in the evidence of PW-1 to explain or to show as to whether the admission made by her in the pleadings is under some mistake or was made under circumstances which would not render it binding on her or which is negated by subsequent/intervening events. It must also be noticed that the arguments put forth by the learned counsel appearing for the plaintiff-respondents that in second appeal this Court cannot go into any question of fact which has been conclusively determined. This is the settled legal 17 position and as I have already held that the Courts have not considered the fact of the admission proved on the record of the case. Merely noticing that a particular fact exists without in any manner determining its legal effect, definitely raises a substantial question of law and does not amount to re-appreciation of evidence. This argument is rejected. In these circumstances, I hold that the learned Courts below are totally wrong in ignoring Ex.DW-2/A without in any manner adverting to the fact as to whether the admission in the written statement amounted to an admission which dispensed with proof in terms of Section 58 of the Act. These questions are, therefore, decided in favour of the appellants. Question No.1: No plea having been raised before the Courts below, nor any issue settled, this question is answered against the appellants herein. Question No.4: I have already held that the possession of the defendants was un-aurhorised as admitted by the plaintiff Durgi. In view of this, the question, as to whether there was any licence or revocation, does not arise. Once the possession is held to be unauthorized and open, which is acknowledged by the owner, there is no question of any licence being created. This question is answered in favour of the appellants. 18 In the totality of the facts and circumstances of this case, this appeal is accepted. The judgment and decree of both the Courts below is quashed and set aside. December 2, 2008. (Dev Darshan Sud) (aks) Judge.