Date : 10/07/2012 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original plaintiffs to quash and set aside the impugned Judgement and Order / decree passed by the learned appellate court - learned District Court, Surat in Regular Civil Appeal No. 257 of 1984 dtd.29/4/1988 by which the learned appellate court has allowed the said appeal preferred by the respondents herein – original defendants and has quashed and set aside the judgement and decree passed by the learned trial court – learned 3rd Joint Civil Judge (J.D.), Surat in Regular Civil Suit No.1429 of 1980 dtd.31/8/1984. 2.00. That the appellants – original plaintiffs instituted Regular Civil Suit 1429 of 1980 in th court of learned Civil Judge (J.D.), Surat against the respondents herein – original defendants for decree of eviction of possession. It was the case on behalf of the plaintiffs that one Alibhai Nurmohammed was the owner of he House bearing City Survey No.2356 in Ward No.4, situated at Doreawad, Salabatpura, Surat. (hereinafter shall be referred to as “the suit property” for convenience) and Hajarabibi – defendant No.7 was wife of said Alibhai Nurmohammed. The defendant Nos.1 and 3 are the heirs of Alibhai and the defendant No.2 was the wife of original defendant No.1.
2.01. That Alibhai married again and went to reside in the house called “Ahmed Nashirni Chawl” on Kemala Road, Surat and he sold the suit premises to Sugarabibi Jamal Mohmad by registered sale deed dtd.28/6/1974 and later on Sugarabibi sold the suit premises to the plaintiffs by registered sale deed on 4/9/1975. It was the case on behalf of the plaintiffs that half portion of the suit premises was in occupation and possession of the defendants and in remaining half portion, one Fatehbhai Bordiwala was the tenant and on his death one Aminabibi was in occupation and possession of the same, however, on the death of Aminaibi, nobody was residing there, however, daughter of Aminabibi and Fatmabibi applied her lock. It was the case on behalf of the plaintiffs that thereafter defendants broke open the lock applied by Fatmabibi and trespassed in the suit premises and removed partition wall and made the big room. It was the case on behalf of the plaintiffs that the defendants are heirs of Alibhai Noormohmed – original owner and they have no right, title and/or interest in the suit property. Thereafter, the plaintiffs called upon the defendants to handover the peaceful and vacant possession of the suit premises, however, despite the service of the notice, possession was not handed over. Therefore, the plaintiff instituted the suit for the recovery of the possession of the suit premises.
2.02. The suit was resisted by the defendants by filing Written Statement at Ex.51. It was the case on behalf of the defendants that the defendant No.1, at the time when the plaintiffs purchased the suit property from Sugarabibi, defendant No.1 was in occupation and possession of the suit premises as tenant and therefore, his possession is neither illegal nor unauthorized and therefore, it was requested to dismiss the suit.
2.03. The learned trial court framed the Issues and on appreciation of evidence held that the original defendant No.1 / defendants have no right, title and/or interest in the suit premises and that the defendant No.1 was not in occupation and possession of the suit premises as tenant. Consequently the learned trial court decreed the suit. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court decreeing the suit and directing the defendants to handover peaceful and vacant possession of the suit premises to the plaintiffs, original defendants preferred Regular Civil Appeal No. 257 of 1984 before the learned District Court, Surat and the learned Joint District Judge, Surat by the impugned Judgement and Order dtd.29/4/1988 allowed the said appeal preferred by the respondents – original defendants by quashing and setting aside the judgement and decree passed by the learned trial court solely relying upon the deposition of the original plaintiffs in earlier suit being Regular Civil Suit No. 723 of 1976, by which according to the defendants, original plaintiff No.1 – appellant No.1 herein admitted that the original defendant No.1 was in possession of the suit premises as tenant.
2.04. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned appellate court, appellants herein – original plaintiffs have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.S.K. Bukhari, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned appellate court has materially erred in relying upon the deposition of the original plaintiff No.1 Ex.137 recorded in another suit being Regular Civil Suit No.723 of 1976 and observing that in the said deposition, the plaintiff has admitted that the defendant No.1 – Mohammed Kasim Alibhai was tenant at the time when Sugarabibi purchased the property from the original owner Alibhai and also at the time when the plaintiff purchased the suit property from Sugarabibi. It is submitted that admittedly so-called admission of the plaintiff in the deposition recorded in another suit being Regular Civil Suit No.723 of 1976 was neither brought to his notice in his cross- examination nor it was brought to the notice of the plaintiff that such an admission made by him in his deposition in another proceedings, is likely to be used against him. It is submitted that even the original plaintiff was also not confronted with his deposition recorded in earlier suit that the same is likely to be used against him as his admission. Therefore, it is submitted that the learned appellate court has materially erred in quashing and setting aside the judgement and decree passed by the learned trial court solely relying upon Ex.137 - deposition of the plaintiff recorded in another suit being Regular Civil Suit No.723 of 1976.
3.01. Mr.Bukhari, learned advocate appearing on behalf of the appellants – original plaintiffs has also heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Chandra Mohan and others Versus Saubhag Singh and others, reported in AIR 1975 S.C. 280; decision in the case of Ramji Dayawala & Sons (P) Ltd. Versus Invest Import, reported in AIR 1981 S.C. 2085 as well as in the case of Udham Singh Versus Ram Singh and another, reported in (2007) 15 SCC 529, in support of his above submissions and in support of his request to allow the present Second Appeal and quash set aside the Judgement and Order passed by the learned appellate court.
4.00. Present appeal is opposed by Mr.L.R. Pathan, learned advocate appearing on behalf of the contesting respondents. Mr.Pathan, learned advocate appearing on behalf of the respondents more particularly respondent No.1 has heavily relied upon sections 74 and 77 of the Indian Evidence Act. It is submitted that as such the deposition of the plaintiff in another suit – Ex.137 can be said to be a public document as per section 74 of the Evidence Act and therefore, considering Section 77 of the Evidence Act, the contents of the Ex.137 – deposition of the plaintiff in another suit are deemed to have been proved and therefore, no illegality has been committed by the learned appellate court in relying upon Ex.137 – deposition of the plaintiff in another suit in which the plaintiff has stated that at the time when he purchased the suit property, respondent No.1 was in occupation and possession of the suit premises as tenant.
By making above submissions, it is requested to dismiss the present Second Appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.00. At the outset, it is required to be noted that as such the learned appellate court has allowed the appeal preferred by the respondents herein – original defendants and has quashed and set aside the judgement and decree passed by the learned trial court mainly and solely relying upon Ex.137 – deposition of the plaintiff in another suit wherein the original plaintiff No.1 has stated that at the time when he purchased the suit premises from Sugarabibi, respondent No.1 – original defendant No.1 Mohammad Kasim Alibhai was in occupation and possession of the suit premises as tenant. Therefore, relying upon the above, it is held by the learned appellate court that as the respondent No.1 – original defendant No.1 was in occupation and possession of the suit premises as tenant even at the time when the plaintiff purchased the suit premises from Sugarabibi, defendant No.1 cannot be said to be in illegal and unauthorized occupation and possession of the suit premises, as alleged by the plaintiffs and consequently the learned appellate court has allowed the appeal preferred by the respondents – original defendants and has quashed and set aside the judgement and decree passed by the learned trial court decreeing the suit. However, it is required to be noted that admittedly during the deposition of the plaintiff and while cross-examining him, his so-called admission in his deposition in another suit (Ex.137) has not been brought to his notice and even it was not brought to the notice of the plaintiff that such a statement / admission made by him in his deposition in another suit, is likely to be used against him. It is an admitted position that even the plaintiff was not confronted with his deposition in earlier suit – Ex.137 that the same is likely to be used against him as his admission. Therefore, the learned appellate court has materially erred in quashing and setting aside the judgement and decree passed by the learned trial court solely relying upon Ex.137 – deposition of the plaintiff in another suit being Regular Civil Suit No.723 of 1976.
6.01. In the case of Udham Singh Versus Ram Singh and another (supra) the Hon'ble Supreme Court has also observed and held that no doubt admission is the best evidence against the person who is said to have made it but it can always be explained. It is further observed by the Hon'ble Supreme Court that one whose previous statement is to be treated as an admission or it is sought to be used, he has to be confronted with such a statement. It is further observed and held by the Hon'ble Supreme Court that admission has to be clear, unambiguous and proved conclusively. It is further observed that it would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission.
6.02. In the case of Ramji Dayawala & Sons (P) Ltd. (supra) the Hon'ble Supreme Court has held that admission unless explained, furnishes the best evidences. Therefore, an opportunity is to be given to the person to explain his evidence / deposition recorded in another suit and unless and until he has been given opportunity to explain the same, such so-called admission cannot be relied upon.
6.03. Under the circumstances, the learned appellate court has materially erred in replying upon – Ex.137 deposition of the plaintiff recorded in another suit being Regular Civil Suit No.723 of 1976 and his so-called admission / statement in such deposition and hence the impugned Judgement and Order passed by the learned appellate court cannot be sustained.
6.04. Now, so far as the reliance placed upon sections 74 and 77 of the Evidence Act, by the learned advocate appearing on behalf of the respondents is concerned, the same has no substance. Even if Ex.137 can be said to be public document, being deposition recorded in the judicial proceedings, still is contents were required to be proved.
6.05. As stated above, so-called admission in the aforesaid deposition was required to be brought to the notice of the plaintiff and he was to be told that his admission / statement in his deposition in another proceeding is likely to be used against him as his admission and as stated above the plaintiff was required to be given an opportunity to explain his so-called admission.
6.06. Under the circumstances, the learned appellate court has materially erred in quashing and setting aside the judgement and decree passed by the learned trial court.
7.00. In view of the above and for the reasons stated above, present Second Appeal is allowed. The impugned Judgement and Order passed by the learned appellate court - learned District Court, Surat in Regular Civil Appeal No. 257 of 1984 dtd.29/4/1988 is hereby quashed and set aside and the judgement and decree passed by the learned trial court – learned 3rd Joint Civil Judge (J.D.), Surat in Regular Civil Suit No.1429 of 1980 dtd.31/8/1984 is hereby restored. In the facts SA/198/1988 10/10 JUDGMENT and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik