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TMI Blog2011 (8) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to deliver possession of the suit land to the plaintiff. Plaintiffs case, in short, was that late Chhote Samaru was serving as Jhankar (village servant) of village Jhinkipali and in lieu thereof he was granted Patta of 10.84 acres of land. In an earlier suit bearing Civil Suit No. 19-A/ 91 a decree was passed in favour of Chhaya widow of Samaru. The said Samaru and Chhaya were issueless and had adopted plaintiff from his childhood, however a deed of adoption was executed and registered on 22/04/1991. After death of Samaru defendant Tarasingh got recorded his name on the strength of a forged WILL and has sold 20 decimal of land in favour of one Daulat, In Civil Suit No. 19-A/91 Chhaya was declared owner of the suit land and the WILL deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by committing fraud and without giving any consideration. It was also found that Chhaya, Samaru and the plaintiff were in possession of the suit land at the time of delivery of judgment in the earlier suit and further that the suit land could not have been sold without permission of the Collector as the same is service land granted to Samaru as a village servant. It was also found that the suit is within limitation and is properly valued. 5. Learned counsel for the appellant has argued that both the Courts below have committed an illegality by placing reliance on statement of Chhaya (Ex P/4) in Civil Suit No. 19-A/91 by taking recourse to Section 33 of the Evidence Act whereas the said provision is attracted when parties to the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. 7. On a reading of the above quoted provision of Section 33 of Evidence Act it would be clear that earlier statement of a person is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which was stated, when the witness is dead, provided that the proceeding was between the same parties or their representatives in interest and the adverse party in the first proceeding had the right of an opportunity to cross-examine and further that the question in iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt party to the first proceeding in fact represented in the first proceeding the relevant party to the second proceeding in regard to his interest in relation to the particular question in issue in the first proceeding and may grammatically and truthfully be described as a representative in interest of the party to the second proceeding. What the section intends is to allow the admission of evidence given in a former proceeding, which it is, for the specified reasons, impossible to give in a later proceeding, subject to the protection which the provisos afford to the party to the later proceeding against whom the evidence is tendered. What the first proviso aims at securing is that the evidence shall not be admitted unless the person wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only prescribes a procedure and is not about any vested or substantial right, therefore, the provision is retrospective and the reliance placed by the Courts below on this provision to declare the sale-deeds illegal as the same have been executed in favour of defendants No. 2 to 5 in contravention of the said provision, is not illegal. 11. In the matter of Guruputrappa Mallappa Harkuni Vs. Tahsildar and others 1993 Supp (1) SCC 49, the Hon'ble Supreme Court, while dealing with a statutory provision concerning Karnataka Village Offices Abolition Act, 1961, has held that the prohibition contained in transfer/alienation with effect from 7th August, 1978, would apply even to a case in which permission was granted in August 1968 on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel has no legs to stand firstly because in the earlier suit no issue regarding ownership of present plaintiff was framed and secondly because any right in favour of present plaintiff would accrue only after the death of Chhaya and not before that. Since the present plaintiff is claiming to be the owner of the suit property on the strength of he being the adopted son of late Chhaya and the said issue has been found to be proved concurrently by both the Courts below, the present suit filed after the death of Chhaya is not barred under the principles of res judicata. In view of the above, no substantial question of law arises for determination in this appeal which fails and is hereby dismissed. - - TaxTMI - TMITax - Indian La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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