High Court of Himachal Pradesh · 2026

to the plaintiff by demolition or otherwise. It was asserted that previously the land was shown to be owned by Bhagat Ram, Milap Singh, Mohinder Singh, Ramesh Chand, Madan Lal and in the plaintiff’s possession as a tenant. The plaintiff became the owner of the suit land after the commencement of the HP Tenancy and Land Reforms Act to the extent of a 5/8th share. Defendants 2 and 3 were minors to the extent of a 3/8th share, and the proprietary rights were not conferred upon the plaintiff regarding their share. Defendant No.1 colluded with the settlement staff and got himself recorded as being in possession of the suit land. This entry is incorrect. Defendant No.1 threatened to interfere with the plaintiff’s possession. Hence, the suit was filed to seek the relief mentioned above.

Defendant No.1 filed a written statement taking preliminary objections regarding the lack of cause of action and the plaintiff being estopped by his act and conduct to file the 4 present suit. The contents of the plaint were denied on the merits. It was asserted that Hardeo, father of the plaintiff, defendant No.1 and Khemdi were recorded as tenants at will of the land measuring 56 Kanals and 8 marlas, including the suit land. The plaintiff was the eldest brother. Defendant No.1 and the other two brothers were minors. All the brothers assisted their father in the cultivation of the land. The plaintiff, being the eldest son, started managing the affairs of the family. He misused the confidence reposed in him by his father and substituted his name without any order of the competent authority. He got conferred the proprietary rights upon him without the knowledge of Hardeo or his sons. Defendant No.1 was found to be in possession during the settlement and was recorded as ‘Kabiz’. The defendant No.1 had become the owner by adverse possession. Therefore, it was prayed that the present suit be dismissed.

A separate written statement was filed by defendants No. 2 and 3, taking preliminary objections regarding lack of jurisdiction and cause of action. The contents of the plaint were denied on the merits. It was asserted that plaintiff or defendant No.1 had no relationship with defendant Nos. 2 and 3. Defendants Nos. 2 and 3 were in possession of the suit land, and they had 5 never inducted any person as a tenant. Therefore, it was prayed that the suit be dismissed.

Separate replications denying the contents of the written statement and affirming those of the plaint were filed.

Defendants, Khemdi Ram, Ghunger and Faquir, filed a separate suit seeking a declaration that they are co-owners along with the plaintiff and are in possession as tenants along with Ghungar over 3 shares under defendants No. 2 and 3 and owners of the suit land to the extent of 5/8th shares. It was asserted that Hardeo was a tenant on the payment of ‘Gala Batai’. He had four sons: Bidhia, Khemdi Ram, Ghunger and Faquir. He was illiterate, and Bidhia, being the eldest son, started managing the affairs of the family. He got himself recorded to be in possession. He also got conferred the proprietary rights upon himself regarding the 5/8th share. All the brothers were the tenants of the suit land. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement taking preliminary objections regarding the lack of jurisdiction and the plaintiffs being estopped by their act and conduct from 6 filing the present. The contents of the plaint were denied on the merits. However, it was admitted that Bhagat Ram was the owner in possession of the suit land. It was specifically denied that he had inducted Hardeo or any other person to be a tenant. It was asserted that the defendants were still in possession, and a false suit was filed against them. Hence, it was prayed that the suit be dismissed.

Bidhia also filed a separate written statement taking preliminary objections regarding lack of locus standi and jurisdiction, the suit being liable to be stayed in view of the pendency of the earlier suit, the plaintiffs being estopped by their conduct from filing the suit, and the suit being collusive. The contents of the plaint were denied on the merits. It was asserted that Hardeo was not the tenant and Bidhia was the tenant for more than 40 years. His name was correctly recorded in the Jamabandi, and ownership was rightly conferred upon him. Therefore, it was prayed that the suit be dismissed.

Separate replications denying the contents of the written statements and affirming those of the plaint were filed. 7

Learned Trial Court consolidated both the suits and framed the following issues on 19.04.1997: -

7. Whether Bidhia was a tenant over the suit land, i.e. Khasra Nos. 209, 216 and 231, measuring 0-29-36 hecatres? OPD Whether Hardeo was a tenant of the suit land, if so its effect? OPD. Whether Ramesh Chand and Madan Lal never inducted Bidhia as a tenant? OPD-2. Whether Bidhia got wrongly substituted himself as a tenant in place of Hardeo, if so effect?OPD-1 Whether Bidhia is entitled to the relief of injunction? OPP Whether Khemdi, Ghungar, and Faqir are entitled to the relief of an injunction? OPD-1. Whether Khemdi, Ghungar, and Faquir are entitled to the relief of declaration? OPD-1. 7-A. Whether, in the alternative, the defendant No.1 has become owner of the suit land by way of adverse possession as alleged? OPD-1.

8. Relief.

The parties were called upon to produce the evidence. Plaintiff Bidhi Chand examined himself (PW-1) and Prithi Ram (PW-2). The defendant No.1 Ghunger Ram examined himself 8 (DW-1), Khushi Ram (DW-2), Lekh Ram (DW-3), Ramesh Chand (DW-4) and Kushal Singh (DW-5).

Learned Trial Court partly decreed the suit filed by Bidhia and dismissed the suit filed by Khemdi and others. An appeal was filed against the judgment and decree. The learned Appellate Court held that the learned Trial Court had framed eight issues and taken them together for discussion. This was a violation of Order 20 Rule 5 of the Code of Civil Procedure (CPC). Hence, the judgment and decree were set aside, and the matter was remanded to the learned Trial Court for fresh decision as per the law.

Learned Trial Court held that the plea taken by plaintiff Bidhia that Hardeo had abandoned the tenancy and he inducted as a tenant was highly probable. He was continuously recorded in possession in the revenue record. An entry in the copy of the Jamabandi carries with it a presumption of correctness, and the evidence of the defendants was not sufficient to rebut the presumption. The name of defendant No.1 was recorded in a permissive capacity, and he could not claim the adverse possession. Hence, the learned Trial Court answered 9 issue No.1 in the affirmative, issue No. 3 partly in the affirmative, issues Nos. 2, 4, 5, 6, 7 and 7-A in the negative and partly decreed the suit filed by Bidhia and dismissed the suit filed by Khemdi, etc.

Being aggrieved by the judgment and decree passed by the learned Trial Court, two separate appeals were filed, which were decided by the learned District Judge, Kangra at Dharamshala, H.P. (learned Appellate Court). Learned Appellate Court held that earlier Hardeo was recorded to be the tenant on the payment of Gala Batai. His name was substituted by the name of plaintiff Bidhia. The plea taken by him that Hardeo had become blind and he had surrendered the tenancy to the landowners was not satisfactory. The possession of defendant No.1 was recorded during the settlement, and the settlement operation was carried out with due care and caution. Hardeo had become a non- occupancy tenant of the suit land after the commencement of the H.P. Tenancy and Land Reforms Act, and all the legal heirs were enjoying the possession of the suit land after his death. Hence, the suit filed by Bidhia was dismissed. 10

Being aggrieved by the judgments and decrees passed by the learned Appellate Court, two separate appeals have been filed before the High Court, which were admitted on 26.02.2009 on the following substantial questions of law: Substantial question of law in RSA No. 28 of 2009

Whether the Lower Appellate Court has committed grave illegality in not taking into consideration the provision of the Punjab Tenancy Act, which was applicable at the relevant time when the plaintiff- appellant claimed the abandonment of tenancy by Shri Hardeo? Are not the findings of Lower Appellate Court illegal, erroneous, and perverse in insisting on the proof of relinquishment of tenancy when the revenue entries depicted the status of plaintiff-appellant to be the tenant under the then owner, who never questioned the status of plaintiff- appellant as a tenant?

Whether the Lower Appellate Court has committed a grave error of jurisdiction in failing to consider that the order of conferment of proprietary rights with the consent of the owner, Shri Bhagat Ram, with respect to the land under the tenancy of plaintiff-appellant attained finality, except for such land which was owned by defendants-respondents No.2 and 3, who were minors at the relevant time. When the tenancy was common for whole land, has not Lower Appellate Court acted in an erroneous and perverse manner to hold that the plaintiff-appellant has failed to prove the tenancy over the land in question when the owner under whom the right of tenancy was asserted never disputed such status?

3. Whether the impugned judgment and decree passed by illegal and Lower Appellate Court is erroneous, 11 perverse when it failed to consider the admissions made by defendant-respondent No.1 Shri Registrar the grant of land as Nautor when defendant-respondent No.1 Shri Ghunghar claiming their status to be landless while applying for grant of land as Nautor when defendant- respondent No.1 Sh. Ghunghar failed to prove his possession over the suit land; has not the Lower Appellate Court proceeded in an erroneous, illegal and perverse manner to hold him to be a joint tenant when the ingredients of joint tenancy were not at all established? Substantial question of law in RSA No. 29 of 2009

1. Whether the Lower Appellate Court has committed grave illegality in not taking into consideration the provision of the Punjab Tenancy Act, which was applicable at the relevant time when the plaintiff- appellant claimed the abandonment of tenancy by Shri Hardeo? Are not the findings of Lower Appellate Court illegal, erroneous, and perverse in insisting on the proof of relinquishment of tenancy when the revenue entries depicted the status of plaintiff-appellant to be the tenant under the then owner, who never questioned the status of defendant No.1- appellant as a tenant?

2. Whether the Lower Appellate Court has committed a grave error of jurisdiction in failing to consider that the order of conferment of proprietary rights with the consent of the owner, Shri Bhagat Ram, with respect to the land under the tenancy of defendant No.1- appellant attained finality, except such land which was owned by defendants-proforma respondents No.4 and 5, who were minors at the relevant time. When the tenancy was common for whole land, has not Lower Appellate Court acted in an erroneous and perverse manner to hold that defendant No.1-appellant has failed to prove the tenancy over the land in question 12 when the owner under whom the right of tenancy was asserted never disputed such status? is erroneous,

3. Whether the impugned judgment and decree passed by Lower Appellate Court illegal and perverse when it failed to consider the admissions made by plaintiffs-respondents claiming their status to be landless while applying for grant of land as Nautor when plaintiff-respondents failed to prove their possession over the suit lan, has not the Lower Appellate Court proceeded in an erroneous, illegal and perverse manner to hold them to be a joint tenant when ingredients of joint tenancy were not at all established?

4. Whether the Lower Appellate Court has failed to consider that the suit filed by plaintiffs/respondents was hopelessly barred by limitation, and civil court lacks the jurisdiction to entertain the suit of the nature as filed by the plaintiffs-respondents?

5. Whether the impugned judgment and decree passed by Lower Appellate Court is unsustainable in failing to apply the rule of estoppel, which was clearly established on record for entertaining the suit filed by plaintiffs-respondents on account of their admissions, as well as acts, conduct and acquiescence?

I have heard Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Janesh Gupta, learned counsel for the appellants in both the appeals and Mr. Bimal Gupta, learned Senior Advocate assisted by Mr. Trigun Negi, learned counsel for respondents No.1(a) and 1(b) in RSA No. 28 of 2009 and respondents No.1(a) to 1(d), 2(a) and 2(b) and 3(a) to 3(e) in RSA No. 29 of 2009. 13

Mr Bhupender Gupta, learned Senior Advocate for the appellants in both the appeals, submitted that the learned Appellate Court erred in setting aside the well-reasoned judgment passed by the learned Trial Court. The plea taken by the plaintiff, Bidhia, that Hardeo had abandoned the tenancy and he was inducted as a tenant by Bhagat Ram was duly proved on record. Bidhia was recorded to be in possession as a non- occupancy tenant on the payment of the rent. The entry continued without any objection from any person. A person recorded to be a tenant became the owner after the commencement of the H.P. Tenancy and Land Reforms Act. A mutation of conferment of proprietary rights was sanctioned in favour of Bidhia regarding 5/8th share, but could not be sanctioned regarding the share of the minors. The jurisdiction of the Civil Court to go into the question of conferment of proprietary rights is quite limited. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

Mr. Bimal Gupta, learned Senior Advocate, for respondents No.1(a) and 1(b) in RSA No. 28 of 2009 and respondents No.1(a) to 1(d), 2(a) and 2(b) and 3(a) to 3(e) in RSA 14 No. 29 of 2009 submitted that Bidhia had never claimed that Hardeo had abandoned the tenancy and he was inducted as a tenant by the owners. He led the evidence to this effect and learned Trial Court erred in relying upon the evidence beyond the pleadings. The entry in favour of plaintiff Bidhia was changed without any order of the competent authority and was liable to be ignored. This Court should not interfere with the findings of fact unless it is proved. No perversity has been shown in the present case. Hence, he prayed that the present appeals be dismissed. He relied upon the following judgments in support of his submissions: -

2. Tulsa Singh vs. Agya Ram & others 1994 SCC OnLine HP 15: AIR 1994 HP 167; State of Himachal Pradesh & Ors vs. Ajay Vij and others 2011:HHC:464;

3. Chet Ram vs. Jai Dei & others 2011:HHC:9054;

6. Shiam Parshad vs. Kasmir Singh & Ors. 2016:HHC:8828; Parvati Devi & others vs. Inder Singh & others 2017 SCC OnLine HP2675; Prem Sagar & others vs. Har Gopal Singh and others 2019 SCC OnLine HP2528 15

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial question of law No.4(RSA No.29 of 2009)

It is undisputed that a mutation of conferment of proprietary rights (Ext.P-7) regarding 5/8th share of Bhagat Ram, Milap Singh and Mahinder Singh was sanctioned in favour of Bidhia in the presence of Bhagat Ram, the original landlord, on

28.07.1976. The defendant claimed that proprietary rights could have been conferred upon Bidhia because Hardeo and not he was the tenant. This plea, if accepted, would have the effect of getting rid of the order passed by the competent authority under the provisions of the H.P. Tenancy and Land Reforms Act. It was laid down in Chuniya Devi versus Jindu Ram 1991 (1) Shimla Law Cases 213 that the jurisdiction of the Civil Court to go into the conferment of the proprietary rights is barred except when there is a violation of the natural law, the statutory authorities have not acted in conformity with the fundamental principle of judicial procedure or have not complied with the provisions of the Act. This judgment was explained by this Court in Shankar Versus Rukmani 2003 (1) Shim. L.C. 300, and it was held that where an 16 order has been passed by the Land Reforms Officer, the jurisdiction of the Civil Court to go into the validity of the order is barred. It was observed: - “4. So far the ratio in judgment in Chuhniya v. Jindu Ram's case (supra) is concerned, the reference before the Full Bench was whether the Civil Court has the jurisdiction in respect of the order of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter called 'the Act') which has been answered in the negative except in a case where it is found that the statutory authorities envisaged by the Act have not acted in conformity with the fundamental principles of the judicial procedure or where the provisions of the Act have not been complied with.

5. The acquisition of proprietary rights by tenants other than non-occupancy tenants is dealt with in Chapter X of the Act. This Chapter consists of Sections 104 to 117. Section 112 of the Act provides for a bar of jurisdiction of the Civil Court for calling into question the validity of any proceedings or orders taken or made under this Chapter. By providing an appeal and revision against the order passed by the Land Reforms Officer under this Chapter, a further bar of jurisdiction has been provided under Section 115 to in question any order made by the Collector, Commissioner or Financial Commissioner by declaring them final. It is also observed by the Full Bench in Chuhniya Devi v. Jindu Ram's case (supra) that from the Scheme of Chapter X, it is clear that there are bound to be occasions when the dispute about the relationship of landlord and tenant would arise in the proceedings which need to be adjudicated upon by the authorities as provided therein, before conferment of proprietary rights upon a tenant or before the resumption of land by the landowner.

6. Referring to sub-section (4) of Section 104 and Rule 29, the Full Bench has concluded in para 39 that: 17 "...........It is implicit in sub-section (4) of Section 104 that the Legislature envisaged that a dispute may arise whether a person cultivating the land of a landowner is a tenant or not when proceedings were in progress under Chapter X and provided that it shall be decided by the authorities contemplated under this Chapter who shall require the landowner to establish that a person cultivating his land is not a tenant. "

7. It was in this context that the Full Bench further held in paragraph 40 : "Any inquiry by a Civil Court on the question was barred by the legislature by specifically providing in Sections 112 and 115, both occurring in Chapter X, that the validity of any order made under the Chapter shall not be called in question in any court and that the order shall be final except as expressly provided in the Chapter. The legislature knew its mind fully well. Where it wanted a dispute to be determined by the Civil Court, it provided so in Chapter X itself. One has only to look at Sections 107 and 109 (2). Not only did the Legislature rule out any determination by a Civil Court, by necessary implication, of other matters, it expressly said so in Sections 112 and 115."

8. While discussing the rationale for the exclusion of the Civil Court, the learned Judges have held in paragraph 44 that: "The exclusion of the jurisdiction of the Civil Court, in the matter of determination of the question whether a person cultivating the land of a landowner is his tenant or not for purposes of Chapter X, is both reasonable and understandable. Permitting such a question to be determined by the civil court also unpredictability, spread over a long period while the matter was under adjudication before the Civil Court at the trial or an appellate stage, which could have introduced element 18 made the effective implementation of measures of land reform aimed at by the Act, uncertain. The legislature could legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the civil court expressly in that matter. "

9. After analysing the judgment in Chuhniya Devi v. Jindu Ram's case (supra), we have no doubt that the jurisdiction of the Civil Court is barred under the Act if the dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and resumption of land by the landowner and the order in respect thereof has been passed by the authorities under the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of a judicial procedure or where the provisions of the Act had not been complied with. But if the dispute of landlord and tenant arises independently of the proceedings under the Act, the Civil Court has the jurisdiction.”

This aspect was also clarified by a Single Judge of the Hon'ble High Court in Tajdin & Ors. Vs. Milkho Devi & Ors. Latest HLJ 2005 H.P. 825, wherein it was held: - “13. This judgment appears to have settled all the matters about which there was some conflict with regard to the interpretation of the judgment of the Full Bench in Chuhniya Devi v. Jindu Ram's case (supra). One factor which has to be kept in mind and should not be lost sight of white considering the import of the judgment of the Full Bench is that the question before the Full Bench was whether the civil court had jurisdiction in respect of an order conferring proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 which had not been assailed under the provisions of the said Act. The Full Bench in para 39 again made it clear that a dispute may arise where the 19 person cultivating the land of a landowner is a tenant or not when proceedings were in progress under Chapter X. The Full Bench was dealing with the impact of the bar to the jurisdiction of the Civil Court under Sections T12 and 115 of the HP. Tenancy and Land Reforms Act, both of which occur in Chapter X, and it is in this context that the observations made in para 40 have to be read. Again, in para 44 (quoted above), the Full Bench has clearly held that the exclusion of the jurisdiction of the Civil Court in the matter of determining the question whether a person cultivating the land of the landowner is a tenant or not for the purposes of Chapter X is both reasonable and understandable. It is thus clear that the question before the Full Bench and its answer and the various observations were confined to disputes pertaining to the relationship of landlord and tenant arising out of and during the course of proceedings of conferment of proprietary rights on the tenant and Chapter X of the H.P. Tenancy and Land Reforms Act. The observations made in Chapter 45 have to be read in this context only.

14. This has been amply clarified by the Division Bench in Shankar case (supra) wherein after analyzing the entire law and the judgment in Chuhniya Devi's case (supra) the Division Bench held that if a dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and the resumption of land by the landowner and the order in respect thereof has been passed by the authorities under the Act the Civil Court will have no jurisdiction except in a case where it is found that the competent authority has acted either in violation of the Rules of Natural Justice or contrary to the provisions of law laid down in the Act or the Rules. If the dispute regarding the relationship of landlord and tenant has no connection with the proceedings under Chapter X of the H.P. Tenancy and Land Reforms Act, the Civil Court would have jurisdiction to hear and decide this dispute. 20

15. I am not only bound but am in respectful agreement with the observations of the Division Bench in Shankar's case quoted hereinbefore. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or orders made under Chapter X is called in question in any Civil Court. Similarly, under Section 115 of the said Act, the order in appeal or revision passed by the Collector, Commission or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of the principles of Natural Justice or is contrary to the provisions of the Rules or the Act. The foundation for this must be laid in the plaint. It is the averments made in the plaint which will show whether the Civil Court has or does not have jurisdiction to entertain the suit.”

In the present case, the dispute between the parties arose out of the order of the conferment of proprietary rights; therefore, it was essential for Ghungar etc. to plead and prove that the statutory authority had acted contrary to law or in violation of the principle of natural justice. There is no whisper in the plaint filed by them to this effect. It was asserted in para-3 that Bidhia got proprietary rights conferred upon himself without the knowledge of Hardeo and his brothers, which is not sufficient to confer the jurisdiction upon the Court as noticed above. Therefore, the jurisdiction of the Civil Court to go into the question of conferment of proprietary rights was partly barred, and the learned Appellate Court could not have granted the 21 declaration sought by Ghungar, etc. Hence, this substantial question of law is answered accordingly. Substantial questions of law No. 1 to 3 in both the appeals.

Copy of the Jamabandi for the year 1932-33 (Ext.AXX) shows Hardeo to be a tenant under Bhagat Ram on the payment of half share of the produce. A similar entry was recorded in the copy of the Jamabandi for the year 1944-45 (Ext.D-1). This entry was changed in the copy of Jamabandi for the 1952-53, and Bidhia was recorded to be a tenant on the payment of Gala Batai, half share of the produce. The area was increased in the copy of the jamabandi for the 1955-57, and the rent was reduced to 1/3rd of the produce. It was submitted that the change was unauthorised and no reliance could have been placed upon it. Hardeo continued to be a tenant, and the name of Bidhia could not have been substituted as per the law. This plea cannot be accepted. Hardeo never objected to the change in the revenue entry during his lifetime. He died on 24.02.1979 as per the death certificate (Ext.D-5). He never claimed during his lifetime that he was a tenant. Bhagat Ram was present at the time of attestation of the mutation. He also never claimed that Hardeo was the tenant and 22 not Bidhia. Not only this, Ghungar Ram and Faquir had applied for the allotment of the land under the provisions of the Himachal Pradesh Village Common Land Vesting and Utilisation Scheme. Faquir made a statement (Ext. P-12) that he did not own any land, and he was not a tenant. His father was alive, and he had no land in his name. Similarly, Ghungar made a statement (Ext.P-13) that he was not the tenant of any land or the owner of any land. These statements were made on 08.09.1975 in the presence of Pardhan and contained an important admission that they were not tenant and Hardeo was also not the owner of any land. It was laid by Hon’ble Supreme Court in Bishwanath Prasad v. Dwarka Prasad, (1974) 1 SCC 78: 1973 SCC OnLine SC 322 that a statement made by a party is admissible, irrespective of the fact whether the party appeared in the witness box or the admission was put to him in the cross-examination. It was observed at page 81:

8. There is no merit even in the contention that, because these three statements — Exs. G, G-2 and H had not been put to the first plaintiff when he was in the witness box or to the eighth defendant, although he had discreetly kept away from giving evidence; they cannot be used against him. Counsel drew our attention to Section 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case, an 23 admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act; in the latter case, a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former, there is no requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case, the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in the Bharat Singh case. [AIR 1966 SC 405: (1966) 1 SCR 606, 615-16: (1966) 2 SCJ 53] This Court disposed of a similar argument with the following observations: evidence substantive "Admissions 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 the 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 a 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. is substantive evidence of the fact Admission 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 its use as admissible matter different evidence. " (Emphasis supplied) 24

This position was reiterated in Union of India v. Moksh Builders and Financiers Ltd., (1977) 1 SCC 60: 1976 SCC OnLine SC 377, wherein it was observed at page 67: 21….There is, however, no force in the other argument that they are not admissible in evidence against Defendant 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. Bhagirath [AIR 1966 SC 405 : (1966) 1 SCR 606] 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 Shanker Bhargava [AIR 1957 All 1: ILR (1956) 2 All 399] also. The point has been considered and answered as follows in Wigmore on Evidence, Vol. IV, §1048 (at p. 3):

The theory of the hearsay rule is that an extra-judicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross-examination by the party against whom it is offered (post, §1362); e.g. if Jones had said out of court ‘The party-opponent Smith borrowed this fifty dollars’, Smith is entitled to an opportunity assertion. But if it is Smith himself who said out of court, ‘I borrowed this fifty dollars’, certain Smith cannot complain of lack of opportunity to cross- examine himself before his assertion is admitted against him. Such a request would be absurd. Hence, the objection of the hearsay rule falls away, because the to cross-examine Jones upon 25 very basis of the rule is lacking, viz., the need and prudence of affording an opportunity of cross- examination.

Moreover, Defendant 3 had a full opportunity to appear and defend himself, but he did not do so, and the case proceeded against him ex parte. The plaintiff even tried to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant. There is therefore no force in the argument to the contrary.

22. So also, there is no force in the argument that the aforesaid admissions or statements of Defendant 3 could not be read against him, as they were not averse to his interest when made. There is no such requirement of the Evidence Act, and the argument is untenable as it unreasonably restricts the opportunity to prove the true state of affairs on the party's own showing and to demolish his subsequent claim as self-contradictory. This point has also been dealt with in Wigmore on Evidence, §1048 (at p. 4) in this way:

It follows that the subject of an admission is not limited to facts against the party-opponent's interest at the time of making it. No doubt the weight of credit to be given to such statements is increased when the fact stated is against the person's interest at the time, but that circumstance has no bearing upon admissibility. On principle, it is plain that the probative reason why a party-opponent's utterance is sought to be used against him is ordinarily the reason noted above, in para 1(b), viz. that it exhibits an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was at the time speaking apparently in his own favour or against his own interest.

The contrary view has been characterised by Wigmore as “a fallacy, in the fullest sense”.

23. Another argument which has been advanced against the admissibility of the aforesaid admissions of Defendant 3 is 26 that they could be evidence only in terms of Section 33 of the Evidence Act. That argument is also quite untenable because Section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act. The High Court also committed a similar error of law in its impugned judgment. The aforesaid admissions of Defendant 3 are therefore satisfactory evidence to prove that he himself was the owner of the house, and his son, Defendant 2, was merely a “benamidar” for him.

It was held in Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242: 1973 SCC OnLine SC 378, that the admissions are the best proof of the facts admitted. It was observed at page 251:

27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitutes a waiver of proof. They can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as 27 evidence are, by themselves, not conclusive. They can be shown to be wrong.

It was held in S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274: 2010 SCC OnLine SC 507 that an admission is the best proof of the facts admitted. It was observed at page 289: “44. It is undoubtedly correct that a true and clear admission would provide the best proof of the facts admitted. It may prove to be decisive unless successfully withdrawn or proved to be erroneous. The legal position with regard to admissions and their evidentiary value has been discussed by this Court in many cases. We may notice some of them.

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi [AIR 1960 SC 100], it was observed as follows: (AIR p. 105, para 11) “11. … 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.”