9911796707
TMI Blog2004 (4) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier plaint being treated as admission of the Petitioner cannot be construed as an admission by the Petitioner that the Respondent is a tenant. His submission further is that this question of law which arose for decision in the Second Appeal was not properly appreciated or decided by the High Court. Leave granted. 3. To properly appreciate the background in which the above said question arose for consideration it may be necessary to have the brief facts leading to the fact of admission said to be made by the Plaintiff. 4. The Plaintiff Appellant is undisputedly the owner of the land in question. Relevant entries in the revenue records for different years are in his favour which have been referred to in the detailed judgments of all the three courts, namely the Trial Court, the First Appellate Court as well as in the judgment of the High Court in second appeal. For the first time, however, an entry of possession and occupancy tenancy is found recorded in favour of Defendants in the revenue records for the year 1975 which seems to be the cause leading to filing of a suit by the Appellant in the year 1975, for a declaration and permanent injunction against the Defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rent to the Plaintiff. It is also observed that the said entries are obviously made in the crop inspection Register after 1974-75. The evidence of payment of rent has not been found satisfactory and thus not accepted by the Trial Court. We have also found that trial court has referred to the admission of Defendant No. 1 himself when he stated that the rent was paid by him four or five times prior to 1974. Thereafter the tenancy Act was enforced and, he stopped paying the rent. The court found that in the circumstances of the case the entry in khasra girdawari of 1975 was manipulated and it deserved to be ignored. It is also observed that if the Defendants were in possession or were tenants prior to 1974, there is no evidence to indicate the same. Even the inspection of crop made in 1974 also does not support the case of the Defendants. It is noted that entries in favour of the Defendants were made with effect from Rabi 1975. According to the trial court, this also shows that the entries have been manipulated. The Defendants have been held to be trespassers and liable to be ejected. Aggrieved by the order of the Trial Court, the Defendants filed the first appeal, which has also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Girdwari from 1973 to 1975 wherein, in October 1974 for the first time, the Defendants have been recorded as non-occupancy tenants on giving 180 mounds of grains, annually. We have perused the original documents namely, Khasra Girdwari which has been marked as Ex. P-3 before the Trial Court and we find that it contains entries for several years and right from the very beginning the entries of ownership and possession are in favour of the Plaintiff. For the first time an entry came to be recorded in favour of the Defendants in October 1975 which has been clearly mistaken as an entry having been made in favour of Defendants since 1974. It made a material difference on the merits of the case of the Plaintiff since it is his case that due to ill health, the Defendants were engaged as labour in April, 1975 to carry out the cultivatory operation over the land in question. The entry in October 1974 is not in favour of the Defendants as it has been taken to be by the High Court. It is a clear misreading of the document which has materially affected the merits of the case. The next document which has played vital role in the decision of the High Court is Ex. D-3. It is daily diary report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to a conclusion that the Defendants were admitted as tenants though no doubt the word 'Theka' has been used. But expression Theka can be used in many ways eg. it may be 'Theka' for labour. It required to be explained or elaborated. We also find that the earlier suit was dismissed in default. No written statement was filed, nor issues were framed. Hence, obviously no trial took place. No doubt admission is the best evidence against the person who is said to have made it, but it can always be explained. 9. 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. We find that though the document namely the plaint in the earlier suit, has been brought on record but no request seems to have been made for summoning the Plaintiff. Learned Counsel for the Appellant has placed reliance on the decision of this Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil (Dead) by L.Rs. and Anr. reported in 1977(2) SCC 49. Our attention has been drawn to the observations made in Paragraph 17 of the Report to the effect that the admission has to be clear, unambiguous and proved conclusively. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff otherwise has not been successful to make out a case for civil court's interference. On that account also, Plaintiff has not been successful. 12. According to the own observations of the High Court on the basis of the averment, made in the plaint the suit was cognizable by the Civil Court. The averments and prayers made in the plaint, are relevant for purpose of deciding the forum where the cause will lie. Looking to the plaint case, the High Court was itself of the opinion that Civil Court was competent to take cognizance of the suit. But we feel that the High Court went wrong while holding otherwise on the basis of the findings ultimately arrived at by the High Court on facts that the Defendants were not the trespassers. The jurisdiction is not to be decided on the basis of the ultimate findings arrived at by the Court. We have already held earlier that the High Court erred in upsetting the concurrent findings of fact arrived at by the two courts of fact, namely the Trial Court and First Appellate Court after detailed and elaborate discussion of the oral as well as documentary evidence on the record. The High Court misread the documents and thereby upset the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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