Abdul Kader Khan Vs. Basek Khan, 40 DLR (AD) (1988) 11

Case No: Civil Appeal No. 100 of 1985

Judge: MH Rahman ,

Court: Appellate Division ,,

Advocate: Muhammad Jamiruddin Sarkar ,Mr. Fazlul Karim,,

Citation: 40 DLR (AD) (1988) 11

Case Year: 1988

Appellant: Abdul Kader Khan

Respondent: Basek Khan

Subject: Law of Evidence, Property Law,

Delivery Date: 1987-7-26

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M. H. Rahman J
A.T.M. Afzal J
 
Abdul Kader Khan being dead his heirs All Akbor Khan
.....................Appellants
Vs.
Basek Khan being dead his heirs Shazu Bia
.....................Respondents
 
Judgment
July 26, 1987.
 
The Evidence Act, 1872
Section 17
An admission made by a party in a plaint is admissible as evidence against him in other actions but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. To adjudicate upon the contention of admission in the plaint of the former suit, this matter should be remanded to the trial court to decide on evidence to ascertain identity of the disputed plot to verify truth or otherwise of contention in the plaint of the former suit. …………(12)
 
Cases Referred to-
AIR 1967 SC 341, AIR 1968 Cal 550, (1852) I Maeq 212; Omar Ali V. Abdul Ali 8 DLR 311, Basant Singh V. Janki Singh AIR 1967 S.C. 341 (343); Mohammed Seraj V. Adibar Rahma Sheikh and others, AIR 1968 Cal 550; Marianski V. Cairns (1852) 1 Macq 212.
 
Lawyers Involved:
Fazlul Karim, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record. - For the Ap­pellants.
Jamiruddin Sircer, Advocate, instructed by Sharifuddin Chaklader, Advocate-on- Record. - For the Respondent Nos. 1(ka), 10 & 12.
Miah Abdul Gafur, Advocate-on- Record. - For Respondent No. 20.
 
Civil Appeal No. 100 of 1985
 
JUDGMENT
 
M.H. Rahman J.
 
This appeal by special leave, at the instance of defendant No.2 and the heirs defendant No. 1, has arisen out of a suit for partition.
 
2. The admitted case of the parties is that the suit holding, C.S. Khatian No. 184 of Mouza Alukdia of Bagerhat, was recorded in the names of five persons Babu Khan had 8 annas share; Miajan Khan and Alimuddin Khan had 3 annas and odd each; and Baru Bibi and Chutu Bibi had 1 anna and odd each. The holding was put to sale for arrears of rent in 1938. It was purchased by eight persons-three sons of Babu Khan, four sons of Miajan Khan and one son of Akimuddin.
 
3. The plaintiffs, the heirs on Miajan Khan, filed Title Suit No. 310 of 1964 in the Court of Munsif, Second Court, and Bagerhat and claimed 8 annas share in the suit property.
 
4. Defendants contested the suit asserting inter alia that the purchasers were the benamders of the re­corded owners; that the plaintiffs had admitted that position in their earlier suit, Title Suit No. 55 of 1962, subsequently withdrawn on the ground of de­fect of the frame of the suit; and that plot No.215 exclusively belonged to Babu Khan and it was wrongly entered in the disputed khatian.
 
5. The trial Court held that the plaintiffs were bound by their statement in the plaint of Title Suit No. 55 of 1962 where they claimed only 5 annas 10 gandas 1 Kara 2 Kranti 8 tils share and admitted that Babu Khan's heirs had 8 annas share; that the heirs of recorded owners continued to possess the suit property according to the respective shares of their predecessors; that plot No. 215 was not the land of the disputed khatian, and that the plaintiffs would get only 3 annas 3 gandas, 1 kara and 1 kranti share.
 
6. The Court of appeal below set aside the decree of the trial Court after considering that the defen­dant's case was not supported by the Sale Certificate and the writ of delivery of possession of the auction sale which rather lent support to the plaintiffs' claim; and that the plaintiffs statement in their plaint in the previous suit would not operate as an estoppel. It remanded the case for a fresh decision on the point whether plot No. 215 was identical with item No.1 of Babu Khan's kabala Ext. B after giv­ing the defendants an opportunity for taking out a local investigation, and for disposal of the suit ac­cording to law.
 
7. In Second Appeal the High Court Division set aside the judgment of the Court of appeal below and remanded the case to the court of first instance for considering the claims of the heirs of Baru and Chu­tu and the defendants' allegation as to plot No. 215. It upheld the observation of the court of appeal be­low with regard to the defendants' contentions as to the plaintiffs’ alleged admission in the previous suit. The learned Judge of the High Court Division relied on Omar Ali V. Abdul Ali 8 DLR 311 and also re­ferred to paragraph 757 of the Halsbury's Laws of England (Vol. 13 Second Edition) which runs as fol­lows:
 
“Pleadings recorded in one cause are admissible in evidence in subsequent proceedings to prove the institution and subject-matter of such cause, but are generally inadmissible, even as against parties or privies, as proof of the truth of the facts stated herein.
 
But answers and decrees in Chancery are admit­ted in peerage cases as evidence of matters of pedigree only incidentally stated therein, and statements made in the course of proceedings by a party upon oath may be admissible in other proceedings as admissions by the party making them."
 
8. Leave was granted to consider whether the plaintiffs' admission in the plaint of their earlier Title Suit No.55 of 1962 they had withdrawn was admissible in the subsequent suit for partition.
 
9. On behalf of the appellants reliance is placed on Basant Singh V. Janki Singh AIR 1967 S.C. 341 (343) wherein it was held that an admission made by a party in a plaint, signed and verified by him, may be used as evidence against him in other suits.
 
10. The learned Counsel for the appellant also cited Mohammed Seraj V. Adibar Rahma Sheikh and others AIR 1968 Cal 550. Following the deci­sion reported in AIR 1967 (SC) 341 it was held in that case that where a fresh suit was filed with per­mission to withdraw the previous one, not on the ground that the admission in the previous suit of certain facts by the plaintiff was a mistaken one, but on ground that some necessary parties had been left out and no attempt was made to rebut the admission made in the previous plaint the admission was bind­ing on the plaintiff. In this case it has been urged by the appellants that as the previous suit was with­drawn only on the ground of defect in the frame of the suit the plaintiffs should be bound by their state­ments in the previous suit.
 
11. The High Court Division wrongly relied on Omar Ali V. Abdul Ali 8 DLR 311 where no such question as contended before us was raised.
 
12. In view of clear provision in section 17 of our Evidence Act, 1872 it will not be appropriate to refer to the English law on the question posed in this case. Even under the English Law a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski V. Cairns (1852) 1 Macq 212 it was held by the House of Lords that an admission signed by a party was evidence against him in another suit not only with regard to a different subject matter but also against a different opponent. In our law of evi­dence an admission made by a party in a plaint is ad­missible as evidence against him in other actions but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. The High Court Division's view with regard to the alleged admission of the plaintiffs in the plaint of their earlier suit is not sustainable and we therefore set aside its judgment. This matter should in any case be remanded to the trial court for identifi­cation of plot No. 215. Let the trial court decide on the evidence on record what weight should be given to the plaintiffs' statements in their plaint filed in the earlier suit, Title suit No. 55 of 1962.
 
In the result, the appeal is allowed. The case is sent back to the trial court for disposal in accordance with law. No costs.
 
Ed.