Gujarat High Court
Whether Reporters Of Local Papers May Be ... vs Vela Partha Garasia on 2 September, 2011
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL No 184 of 1978
For Approval and Signature:
Hon'ble MR.JUSTICE J.M.PANCHAL
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1. Whether Reporters of Local Papers may be allowed to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy of the judgement?
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
-------------------------------------------------------------- VALJI FATESING TAHKORE Versus VELA PARTHA GARASIA
-------------------------------------------------------------- Appearance:
MR SK JHAVERI for appellants MS KUSUM M SHAH for Respondent No. 1 SERVED for Respondent No. 2, 3
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CORAM : MR.JUSTICE J.M.PANCHAL Date of decision: 05/05/97 ORAL JUDGEMENT
1.This Second Appeal has arisen from the suit brought by respondent No.1 for injunction restraining original defendants Nos. 2 and 3 from entering into any transaction in respect of survey No.51/1 situated in the sim of village Rabaria, Taluka : Palanpur, District :
Banaskantha with original defendants nos.4 and 5 and also restraining the original defendants Nos. 1,4 and 5 from entering into the said field and from interfering with his possession of the said field.
2.The respondent No.1 is the resident of village Rabaria, Tal. Palanpur, Dist : Banaskantha. He is the son of deceased Partha Bhera who was impleaded in the suit as defendant NO.2. The respondent No.1 had a brother by name Kesa. Kesa had expired before filing of the suit. Son of Kesa i.e. Garasia Dharma Kesa was impleaded as defendant No.3 in the suit. The suit field admeasures Acres 8 and Gunthas 6. According to the respondent No.1, survey No.51/1 is ancestral property of himself, deceased defendant No.2 and the defendant No.3.
What was stressed by the respondent No.1 was that the suit field was not partitioned between himself as well as defendants Nos. 2 and 3 and he was cultivating the same except portion admeasuring Acre 1- G.O which was being cultivated by the defendant No.3. The respondent No.1 claimed that he was paying installments of the loan advanced by the government to deceased defendant NO.2 and was also paying land revenue in respect of the said field. It was asserted by the respondent NO.1 that original defendant NO.3 in collusion with deceased defendant NO.2 was about to transfer the field to defendants Nos. 1,4 and 5 and the defendants Nos. 1,4 and 5 were likely to take possession of the said field from him by using force. Under the circumstances, the respondent No.1 instituted Regular Civil Suit No.117/69 in the court of learned Civil Judge ( S.D.) at Palanpur and prayed the court to issue perpetual injunction restraining the defendants Nos. 2 and 3 from transferring the suit field to defendants Nos. 1,4, and
5. The respondent No.1 also prayed the court to issue perpetual injunction restraining the defendants Nos. 1, 4 and 5 from entering into the said field or from interfering with his possession of the said field.
3.The original defendant No.1 resisted the suit by filing written statement at Exh.24. He inter-alia contended that the suit being not true and bona fide was liable to be dismissed. He claimed that the suit was liable to be defeated because of misjoinder of parties. It was contended in the written statement that original defendants Nos. 2 and 3 being joint owners of the suit field had not only executed an agreement to sell the suit field in favour of the defendants Nos. 4 and 5 on May 27, 1969, but had also handed over possession of the suit field to the original defendants Nos. 4 and 5, and, therefore, the suit was liable to be dismissed.
4.The original defendant NO.2 Partha Bhera who expired during the pendency of the suit as well as the defendant NO.3 had submitted joint written statement at Exh.35 contesting the claim advanced by respondent No.1 in the plaint. It was inter alia contended by them that suit was neither true nor bona fide and was therefore, liable to be dismissed. Though in the written statement, it was admitted by them that the field bearing survey No.51/1 situated in the sim of village Rabaria was a joint family property of the plaintiff and defendants Nos. 2 and 3, it was claimed that two other fields bearing survey No.52 and 82 in possession of the respondent no.1 were also joint family properties and were liable to be partitioned amongst the respondent No.1 as well as defendants Nos. 2 and 3. It was asserted by them that respondent NO.1 was never in possession of the field nor had cultivated the same. It was averred in the written statement that original defendant NO.2 was cultivating the suit field, whereas the respondent No.1 was cultivating fields bearing survey Nos. 52 and 82 for the sake of convenience of parties, but as suit field was sold to original defendants Nos. 4 and 5 by registered sale deed dated September 19, 1969, the suit was liable to be dismissed.
5.The original defendants Nos. 4 and 5 contested the suit by filing written statement at Exh.92 contending inter alia that they had purchased the suit field from defendants Nos. 2 and 3 by a registered sale deed dated September 19, 1969, for an amount of Rs.1,500/= and as they were in actual possession of the suit field, the respondent No.1 was not entitled to have the reliefs claimed in the plaint. It was averred therein that suit field was never cultivated by respondent No.1 and as the suit field had come to the share of defendants Nos. 2 and 3 on partition of joint family properties, the sale was neither illegal nor liable to be set aside. After asserting that the respondent No.1 had in fact no cause of action to bring the suit, the defendants Nos. 3 and 4 demanded dismissal of the suit by filing written statement.
6.Original defendant No.2 Partha Bhera expired during the pendency of the suit, and, therefore, his daughter Bai Geli was brought on record of the case as his heir and legal representative. Bai Geli after being brought on the record of the case submitted her written statement at Exh.111. She admitted the facts stated by respondent No.1 in the plaint. It was stated by her that the respondent No.1 was cultivating the suit field since long and that the respondent No.1 as well as original defendants Nos. 2 and 3 had got share in the suit field. It was pleaded by her that taking undue advantage of the old age of deceased Partha Bhera and by practising fraud sale deed in respect of suit field was got executed by original defendants Nos. 4 and 5 which was illegal. In short by filing written statement Bai Geli supported the claim advanced by respondent No.1 in the plaint.
7.Having regard to the pleadings of the parties, the trial court framed 7 issues for determination vide Exh.38. In order to prove his case, the respondent NO.1 examined himself at Exh.116 and also led oral evidence of Bhura Sagra at Exh.128. On behalf of defendants Nos. 4 and 5, original defendant NO.4 i.e. Dhulsing Valsing examined himself at Exh.134. The defendants also examined (i) Rameshwar Khetaram at Exh.157, who was serving as Talati cum Mantri at village Rabaria since April 11, 1974. (ii) Narayan Bharthi Ganesh Bharthi at Exh.163 , (iii) Badridan A. Gadhvi at Exh.172 and (iv) Saja Fata at Eh.174. The parties also led documentary evidence in support of their respective claims.
8.On appreciation of evidence led by the parties, the trial court found that respondent No.1 proved that survey No. 51/1 situated in the sim of village Rabaria, Tal. Palanpur, Dist : Banaskantha, was joint family property. The trial court held that the respondent No.1 had 1/3 share in the said property, and, therefore, sale of survey No.51/1 by original defendants Nos. 2 and 3 to defendants Nos. 4 and 5 was not valid and binding on the respondent no.1 so far as his undivided 1/3 share therein was concerned. The trial court deduced that though the defendants Nos. 4 and 5 were in actual possession of the suit property since September 19, 1969, i.e. the date of sale deed, their possession of the whole survey number was not legal. The trial court negatived the plea raised by the defendants that suit filed by the respondent No.1 was not maintainable. In view of these conclusions, the trial court by judgment and order dated October 29,1974, partly decreed the suit and perpetually restrained the original defendants Nos. 2 and 3 from entering into any transaction in respect of suit property until it was legally partitioned amongst the respondent no.1 and defendants Nos.2 and 3. The trial court disallowed prayer made by the respondent No.1 for issuing perpetual injunction to restrain the original defendants Nos. 1, 4 and 5 from entering into the suit land and from disturbing his possession.
9.As the suit was only partly decreed, the respondent No.1 who is original plaintiff filed Regular Civil Appeal No.7/75 in the District Court, Banaskantha at Palanpur. The original defendants Nos. 1, 4 and 5 filed cross objections at Exh.49 against judgment and decree rendered by the learned trial judge and mainly challenged the finding recorded by the learned Judge that the suit property was of joint family of plaintiff and the defendants nos.2 and 3. Before the first appellate court the respondent No.1 had submitted an application Exh. 21 for amendment of plaint. By submitting said application, the respondent No.1 had in the alternative claimed possession of the suit property from the appellants. That application was allowed by the appellate court and the respondent No.1 was permitted to amend the plaint.
10.In view of appeal filed by the original respondent No.1 and cross objections by original defendants Nos.1,4 and 5, the first appellate court framed 5 issues for determination. On consideration of the evidence adduced by the parties as well as after hearing the learned counsel representing the parties, the first appellate court held that the suit field is joint family property of respondent No.1, deceased defendant No.2 and defendant No.3. As a necessary corollary the first appellate court held that sale of the suit field by deceased defendant No.2 and defendant No.3 to the original defendants Nos.4 and 5 was not legal and valid nor binding on the respondent No.1 in respect of his 1/3 undivided share therein. Though the trial court upheld the claim advanced by the respondents Nos. 4 and 5 that they were in actual possession of the suit field since September 19, 1969, it negatived their claim that they were entitled to have possession of the suit field. Under the circumstances, the first appellate court by judgment and decree dated January 31, 1975,allowed the appeal of the respondent no.1 and dismissed cross-objections filed by original defendants Nos.1,4 and
5. The first appellate court has issued perpetual injunction restraining the defendants Nos.2 and 3 from entering into any transaction in respect of the suit field till it is legally partitioned. The first appellate court has also directed original defendants Nos. 4 and 5 to hand over possession of the entire suit field to the respondent No.1 clarifying that it would be open to them to initiate proceedings to have their interest ascertained by partition. The decree passed by the first appellate court has given rise to the present Second Appeal.
11.At the time of admission of Second Appeal, following substantial questions of law were formulated by the court for determination.
(i) Whether the Court erred in law in holding the suit field to be a joint family property merely on the admission in written statement of defendants Nos.2 and 3 as against the defendants Nos. 4 and 5 without any positive evidence on behalf of the plaintiff ?
(ii) Whether the Court erred in deciding Issue No.1 against defendants Nos. 4 and 5 for want of proof of partition ?
(iii) Whether the Court erred in deciding Issue No.1 against defendants Nos. 4 and 5 for want of proof of partition ?
(iv) Whether the Court erred in law in ignoring documentary evidence containing admission showing partition between the coparceners in respect of the suit field in particular Exhibit 135 and 137 or 138 and 173 ?
(v) Whether the Court erred in law in
passing a decree for recovery of
possession of the suit field from
defendants Nos.4 and 5, who are entitled to 2/3 share as against the plaintiff having 1/3 share ?
(vi) Whether the Court erred in law in not holding that deceased defendant No. 2 Partha Bhera sold the suit property for legal necessity for his maintenance and for improvement of other agricultural lands as stated in documents produced in the case ?
(vii) Whether the Court erred in not taking into account the previous statement of the plaintiff showing that he got the suit field mortgaged to him by his father which disclosed that the property was not a joint family property ?
(viii) Whether the Court erred in law in not directing and giving an opportunity to the parties to file a suit for general partition and staying decree for possession ?
12.At the time of hearing of Second Appeal, the learned counsel for the appellants is permitted to reformulate substantial questions of law as under.
1. Whether the court erred in law in not holding that the burden lay upon the plaintiff to prove that suit field was joint family property and that he failed to discharge that burden by positive evidence ?
2. Whether the court erred in law in holding that there was such admission, if any, in W.S. of Defendants 2 and 3, as could be used against defendants 4 and 5 ?
3 Whether the court erred in law in holding suit field to be joint family property ignoring the admissions- statements of plaintiffs and defendant no.2 at Exhs.
137, 138, 165, 173 before the revenue authorities and further erred in law in drawing incorrect inferences from exhs. 135 and 139 ?
4. Whether the court erred in law in seeking proof of partition from defendants 4 & 5?
5. Whether the court erred in law in passing a decree for recovery of possession from defendants 4 & 5 who are entitled to 2/3 share as against claim of 1/3 share by plaintiff who is in enjoyment of S.No.52 and 82 of about more than 12 acres as against suit field of acre 8 - 6 gunthas ?
6. Whether the court erred in law in not holding that deceased deft. no.2 Partha Bhera sold the suit field for legal necessity and benefit to the estate for maintenance as stated in their statements and relevant documents on record ?
7. Whether court erred in law in not taking into account the statement of the plaintiff claiming that the suit field having been mortgaged to him by Father negativing his plea of its being joint family property ?
8. Alternatively in case other questions are being held against defendants 4 & 5, Whether the court erred in law in not directing and giving an opportunity to the parties to file a suit for general partition and until then staying decree for possession ?
13.Mr. S.K.Zaveri, learned senior counsel submitted that as the respondent no.1 failed to prove that the suit field was a joint family property, the judgment rendered by the first appellate cour is liable to be reversed. Elaborating the said contention, it was pleaded that admission made by the original defendants Nos. 2 and 3 in their written statement could not have been pressed into service against the appellants for the purpose of deciding the question whether the suit field was joint family property of respondent No.1 on one hand and the original defendants Nos. 2 and 3 on the other hand and that too ignoring Exhs. 137, 138, 165 and 173, and, therefore, Second Appeal should be accepted. What was highlighted on behalf of the appellants was that the admission made by the respondent No.1 before revenue officer to the effect that deceased defendant No.2 had mortgaged suit property to him indicated partition of joint family properties between the respondent no.1, deceased defendant no.2 and the defendant no.3 and, therefore, the finding that suit property was joint family property of respondent no.1 and defendants nos.2 and 3 deserves to be set aside. In the alternative, it was emphasized that the defendants Nos. 2 and 3 who were coparceners were entitled to sell their undivided share in the joint family property to the original defendants Nos. 4 and 5 and as original defendants Nos. 4 and 5 had purchased the suit property for consideration, decree passed against them for possession is liable to be set aside. It was also submitted that the appellants who are original defendants Nos. 4 and 5 should not have been directed to hand over possession of the entire suit property to the respondent No.1 more particularly when liberty was reserved to the original defendants Nos. 4 and 5 to initiate proceedings for partition of the disputed property. In support of these submissions, learned counsel placed reliance on the decisions rendered in the cases of (1) Bhau Laxman Dhor v. Budha Manku Dhor, 28 Bombay Law Reporter, 765 (2) Ram Dayal vs. Manaklal A.I.R. 1973, Madhya Pradesh, 222 (3) Prakash Chand Sharma and others v. Narendranath Sharma A.I.R. 1976, S.C. 2456 (4) Thiru John v. The Returning Officer and others A.I.R.1977, S.C. 1724 and (5) Dropdi Devi and others v. Jagdish Chandra and others A.I.R. 1989, Rajasthan,110.
14.Ms. K.M.Shah, learned counsel for the respondent No.1 submitted that in view of the admission made by the original defendants Nos. 2 and 3 in their written statement Exh.35 that property bearing survey No.51/1 was joint family property of respondent No.1 as well as original defendants Nos. 2 and 3, it cannot be said that any error is committed by fact finding courts in concluding that the disputed property is a joint family property. It was pleaded that even in the sale deed executed in favour of the appellants, it was mentioned by original defendants Nos. 2 and 3 that the suit property was joint family property and therefore, finding of fact recorded by both the courts that suit property is joint family property being just and proper should not be interfered with by the court in the present appeal. While dealing with so called admission made by respondent No.1, it was argued that the statement of respondent No.1 was recorded by Talati cum Mantri of village Rabaria after filing of the suit, but before recording the said statement, no notice was issued to respondent No.1 as required by Section 135 (D) of the Bombay Land Revenue Code, and, therefore, the courts below have rightly not relied upon the same while deciding the question whether suit property was joint family property or not. What was emphasized on behalf of the respondent No.1 was that though respondent No.1 was examined in the case, he was never confronted with the so called admission made by him in the statement which was recorded by revenue officer, nor was afforded opportunity to explain the same, and, therefore, the court should not rely upon the so called admission made by the respondent No.1 in the said statement. It was pleaded that Exhs. 137, 138, 165 and 173 do not indicate in any manner that survey No.51/1 situated in the sim of village Rabaria was not a joint family property. It was stressed that having regard to the facts of the case, the first appellate court is justified in directing the appellants to deliver possession of the entire suit field to the respondent No.1 and the said direction being just and legal,should not be interfered with by the court in the present appeal. In support of her submissions, learned counsel placed reliance on the decisions rendered in the case of (1) Pari Kantilal Lalbhai v. Devchand Nathalal Patel, 7, G.L.R., 1123 and (2) Raj Kumar and another v. Official Receiver of the estate of M/s Chiranji Lal Ramchand Ludhiyana and others, A.I.R.,1996, S.C. 941.
15.In view of the rival submissions advanced at the bar, it becomes necessary to ascertain the nature of the suit property. It is the case of the respondent No.1 that the suit field is joint family property and joint family consists of himself, his father i.e. defendant No.2 and his nephew Dharma Kesa who was impleaded as defendant No.3 in the suit. The case pleaded by the appellants on the other hand is that a partition of joint family property had taken place between respondent No.1 as well as the original defendants Nos. 2 and 3 and as the suit property had come to the share of original defendants Nos. 3 and 4, they were entitled to execute sale deed in favour of the appellants, and, therefore, suit was liable to be dismissed. The deceased defendant NO.2 as well as defendant No.3 had presented their joint written statement at Exh.35. In para 4 of the written statement, deceased defendant NO.2 as well as defendant No.3 have categorically and in unambiguous terms have admitted that not only the suit field is the joint family property of the respondent No.1 as well as defendants NOs. 2 and 3, but two other fields bearing survey No.52 and 82 which are in possession of the respondent No.1 are also coparcenery properties of the respondent No.1 as well as defendants Nos. 2 and 3 and the joint family properties have not been partitioned. In paragraph 9 of the written statement, the defendants Nos. 2 and 3 have further admitted that no partition of the suit field between themselves and the respondent No.1 had taken place and they prayed the court to reserve right to them to file suit for partition of the disputed field as well as 2 other fields. It hardly needs to be emphasized that the original defendants Nos. 2 and 3 would be the only competent persons to state about the nature and character of suit property. Admittedly sale deed in favour of the appellants was executed after filing of the suit. The appellants are in no way related either to the respondent No.1 or to the original defendants Nos. 2 and 3. Therefore, they would be least competent to depose about character of the suit property. When the original defendants Nos. 2 and 3 categorically admitted in the written statement that the suit field was/is joint hindu family property of the plaintiff and themselves, in my opinion, respondent No.1 was not required to lead any further evidence in order to prove that the suit field is joint family property of himself and the defendants Nos. 2 and 3. Even in the sale deed which was executed by the original defendants Nos. 2 and 3 in favour of the appellants after filing of the suit, it is mentioned that the suit property was joint family property. An admission is confession or voluntary acknowledgment made by party or someone identified with him in legal interest, of the existence of certain facts which are in issue or relevant to an issue in the case. The predominant characteristic of this type of evidence consists in its binding character. Admissions are broadly classified into two categories (i) judicial admissions and (ii) extra judicial admissions - judicial admissions are formal admissions made by a party during the proceedings of the case. Extra judicial admissions are informal admissions not appearing on the record of the case. Admissions unless explained furnishes best evidence. Admissions in pleadings or judicial admission by themselves can be made the foundation of the rights of parties. In the case of Pari Kantilal Lalbhai ( Supra ), it has been held that when a party to a civil suit makes an admission in pleadings or in his evidence at the hearing of the suit, those admissions are conclusive and cannot be challenged. In the said case, suit was filed by the plaintiff to recover Rs.2,000/= with interest from the defendants. According to the plaintiff, it was a loan transaction. The defendant in his written statement and evidence admitted contents of Exh.36 on the basis of which suit was filed. It was found that the allegations made in the plaint were admitted in evidence and in the written statement by the defendant. The trial court however proceeded to consider the theory of the transaction and dismissed the suit. The first appellate court also dismissed the appeal filed by the plaintiff. While allowing the second appeal and dealing with the admissions made by the defendant in his pleadings and his evidence, the court has held as under :
"The contention that admissions made by the respondent in his pleadings and in his evidence at the hearing of the suit are a result of an error cannot be entertained, because when a party to a civil suit makes an admission in the pleadings or in his evidence at the hearing of the suit, those admissions are conclusive. Such admissions have to be distinguished from the admissions made prior to the suit and which are given as evidence at the hearing of the suit. Admissions made in the pleadings and in the evidence of the party at the hearing of the suit are conclusive and cannot be challenged."
16.Again in the case of Raj Kumar and another (Supra) the question whether admission by one of the coparceners that the other coparceners had 1/3 share in the properties can be relied upon or not came to be considered by the Supreme Court. In the said case, the Insolvency Court had initially declared 3 partners of a firm as insolvents. In appeal, the District Court declared two partners who had filed appeal to be not insolvents and set aside the order of Insolvency Court. The revision filed in the High Court was dismissed. Thus, as far as third partner i.e. Chiranji Lal was concerned, the order declaring him to be insolvent became final.The Official Receiver, after taking over estate, filed an application under Section 4 of the Provincial Insolvency Act for a declaration that the insolvent had 1/3 share in items mentioned in paragraphs 4, 5, 6 and 7 of the petition. The Insolvency Court declared that the partner who was declared to be insolvent had got 1/3 share in some of the properties and 2/3 in some others. On appeal, the District Court declared that the partner who was declared to be insolvent had 1/3 share in certain items. The High Court also upheld the said conclusion relying upon certain admissions made in the pleadings by the appellants. While dismissing the appeal, the Supreme Court has held that the admissions were binding on the appellants and it was clearly established from the admissions that the insolvent partner had 1/3 share in the properties.
17.In view of the principles laid down in the above quoted decisions, there is no manner of doubt that admissions made by defendants Nos. 2 and 3 in their written statement Exh.35 regarding character and nature of the suit property cannot be ignored. It is not established that the admissions made by the defendants Nos. 2 and 3 are collusive in nature or made under duress or coercion. Under the circumstances, it cannot be said that any error is committed by the fact finding courts in holding that the suit property is a joint family property. Even in the sale deed Exh.138, it was mentioned by the executants that the suit property was joint family property. In view of the oral evidence of respondent No.1 coupled with admissions made by original defendants Nos. 2 and 3 in the written statement as well as contents of sale deed Exh.138, I am of the view that the finding recorded by court of first instance as affirmed by the first appellate court which is final court of facts that the suit property is a joint hindu family property of the respondent no.1 and original defendants nos.2 and 3 is eminently just and not liable to be interfered with in the present appeal. The said finding is therefore, hereby upheld.
18.Learned counsel for the appellants heavily relied on the statement of the respondent No.1 which was recorded by Badridan A. Gadhvi, the then Circle Officer to establish the claim of the appellants that the joint family properties were already partitioned and the suit property was not only mortgaged by deceased defendant no. 2 to the respondent no.1, but had also come to the share of the original defendants Nos. 2 and 3. In my view, the so called statement recorded by Circle Officer cannot be relied upon for the purpose of deciding the question whether the joint family properties belonging to respondent No.1 as well as original defendants Nos. 2 and 3 had been partitioned or not or for deciding the question whether the suit property had come to the share of original defendants Nos. 2 and 3. As noted earlier, the defendants Nos. 2 and 3 had admitted in their written statement Exh.35 that not only the suit property, but other two properties bearing survey Nos. 52 and 82 which are in possession of respondent No.1 were also joint family properties and were liable to be partitioned between the parties. In fact, while filing written statement, the original defendants Nos. 2 and 3 had requested the court to reserve liberty to them to file suit for partition. In view of the categorical admission made by the original defendants Nos. 2 and 3 as well as in view of oral testimony of respondent No.1, there is no manner of doubt that the suit property was never partitioned between the parties and had not gone to the share of the original defendants Nos. 2 and 3 in partition. It is true that in the statement which was purportedly recorded by the Revenue Officer, the respondent No.1 had stated that his father i.e. respondent No.2 had mortgaged the suit property to him for an amount of Rs.300/=. However, neither registered or unregistered document is coming forth to prove the mortgage mentioned by respondent No.1 in his statement which was recorded by Circle Officer. It is relevant to note that the statement was recorded by the Revenue Officer while certifying entry No.108. However, evidence of Badridan. A. Gadhvi who recorded statement of respondent No.1 does not indicate that any notice was issued to the respondent No.1 under Section 135 (D) of the Bombay Land Revenue Code before certifying entry No.108. As no notice was issued to respondent No.1 before certifying entry No.108, there was no occasion for the Circle Officer to record statement of respondent No.1. The circumstances in which statement of respondent No.1 came to be recorded by him are not explained by the Revenue Officer. The Revenue Officer had also recorded statement of Partha Bhera i.e. original defendant No.2. But in his statement, no reference was made by deceased defendant No.2 regarding the suit property having been mortgaged by him to his son i.e. respondent No.1. The respondent No.1 i.e. Vela Partha was examined in the case at Exh.116. During his cross-examination, he was neither confronted with statement Exh. 173 which was recorded by Revenue Officer nor confronted with so called admissions made by him in the said statement. Moreover, the Revenue Officer had purportedly recorded statement of respondent No.1 after filing of the suit. As noted earlier in the suit, the respondent No.1 claimed that the suit property was joint family property and the original defendants Nos. 2 and 3 had no right or authority to alienate the same in favour of the appellants. In the written statement, it was admitted by the respondents Nos. 2 and 3 that the suit property was joint family property and other properties in possession of the respondent No.1 were also joint family properties. In view of this state of affairs, it is highly doubtful whether respondent No.1 would make a statement which would indicate that the suit property was not joint family property and was partitioned between the parties. There is distinction between admissions made in pleadings or in evidence and admissions made before another authority after filing of the suit. When admissions made after the filing of the suit are sought to be relied upon, the party who is alleged to have made admissions must be confronted with the admissions and given an opportunity to explain the same. Any admission made in ignorance of legal rights or under duress cannot bind maker of the admission. If the respondent No.1 had been confronted with his so called admission made in the statement which was recorded by Revenue Officer, he could have offered explanation as to whether the admission was correct or whether it was recorded under duress or not. Under the circumstances, Eh.173 can not be relied upon to establish that disputed property was partitioned between the respondent no.1 and the defendants Nos. 2 and 3 and it had come to the share of defendants Nos. 2 and 3 so as to entitle them to alienate it in favour of the appellants. Similarly Exh.165 which is so called statement made by deceased defendant No.2 before the Revenue Officer cannot be relied upon for the purpose of deciding the question whether the suit property was joint family property or whether on partition, the suit property had come to the share of original defendants Nos. 2 and 3. As observed earlier, the original defendants Nos. 2 and 3 in their written statement Exh.35 had categorically admitted that the suit property was joint family property and the joint family properties were not partitioned between the parties. It may be mentioned that the respondent No.1 as well as original defendant No.2 had put their thumb mark below the statements which were recorded by the Revenue Officer. In view of the categorical admission made by the deceased defendant No.2 in his written statement, it does not sound prudent that he would make a statement which would go to show that the property was not joint family property. Exh.137 is entry which was mutated pursuant to the sale deed executed by original defendants Nos. 2 and 3 in favour of the appellants. The said entry is based on the statement of deceased defendant No.2 as well as respondent No.1 which were recorded by Revenue Officer. Reference to the suit which was filed by the respondent No.1 is also made therein. On the facts and in the circumstances of the case, I am of the opinion that neither Exh.137 nor Eh.138 indicate in any manner that the suit property was not joint family property of the respondent No.1 and defendants Nos. 2 and 3. On totality of the facts and circumstances of the case, I am of the view that the finding recorded by the court of first instance as well as first appellate court that the suit property was not partitioned and the respondent No.1 has got 1/3 undivided share in the suit field is eminently just and cannot be said to be erroneous so as to call for interference in the present appeal. The question whether a property is joint family property or not or the question whether partition has taken place between coparceners or not are essentially questions of fact and not of law. On proper appreciation of evidence led by the parties, both the courts have held that the suit property is joint family property of the respondent No.1 as well as original defendants Nos. 2 and 3 and the property was not partitioned between the parties at all.
19.In the case of Prakash Chand Sharma ( Supra ), the deposition of the plaintiff in some proceeding in the court of Tehsildar soon after the suit that plaintiffs' and defendant's families had not been joint since 1921 was considered by the Supreme Court in the light of documents relied upon by the defendant supporting his case of partition long ago. As against the numerous documents relied upon on behalf of the defendant, the plaintiffs relied upon documents which did not prove or probabilise their case at all. Under the circumstances, copy of the statement made by the plaintiff only 10 days after the institution of suit in some proceeding in the court of Tehsildar was considered by the Supreme Court and the Supreme Court has held that this was a very damaging admission on behalf of the plaintiff. Plaintiff who had made the admission had not examined himself in the suit to explain the admission and the reason for his non-examination was not found to be satisfactory. In light of these circumstances coupled with the documents relied upon by the defendant, the Supreme Court dismissed the appeal filed by the original plaintiffs. In my view, the principle laid down in the above quoted decision is not applicable to the facts of the present case. No documentary evidence is produced by the appellants to substantiate their claim that the suit property was not joint family property of the respondent and original defendants Nos. 2 and 3. As observed earlier, the respondent No.1 was never confronted with his so called admission when he was examined as a witness in the case. Before the evidence could be recorded, the defendant No.2 had already expired. Therefore, the decision relied upon is of no assistance to the appellants. Again in the case of Thiru John ( Supra ) a petition challenging election of the candidate returned to the Rajya Sabha was filed. The election was challenged on the ground that the returned candidate was less than 30 years of age, and, therefore, was not qualified under Section 84 (b) of the Representation of the People Act, 1951. The Supreme Court considered the question whether onus of proving that on the date of scrutiny of nominations the returned candidate was less than 30 years was discharged by the petitioner or not. While considering the said question, the Supreme Court noticed that the petitioner had produced number of documents containing clear and solemn admissions made by the returned candidate long prior to the election in question about his age. Those documents are enumerated in detail in paragraph 13 of the judgment. The Supreme Court found that those admissions were entitled to great weight, and, therefore, it was held that the admissions shifted the burden on to the returned candidate to show them to be incorrect and as returned candidate failed to do so, his appeal was dismissed. In my view, the principle laid down in the above quoted decision is also of no help to the appellants in asmuch as, the appellants have not proved that the so called admissions made by the respondent No.1 as well as defendant No.2 in the statements are correct or otherwise entitled to great weight. It is well settled that a party's admission as defined in Sections 17 to 20, fulfilling the requirement of Section 21, Evidence Act, is substantive evidence proprio vigore. However, admission must be clear and unequivocal. An admission duly proved is substantive evidence of the fact admitted irrespective of whether party making it appears in the witness box or not while a previous statement used to contradict a witness is not substantive evidence but only serves the purpose of throwing doubt on the veracity of the witness. Admission previously made can be allowed to be explained in order to show that it was erroneous or otherwise vitiated. The maker of the admission can very well show that the facts admitted are not correct. However, the admission can be used as substantive evidence if maker fails to explain the same in witness box when confronted. It is also well settled that admission pertaining to title of the property without proof thereof can be withdrawn at any time. In the present case, the respondent No.1 was never confronted with his so called admissions nor was given any opportunity to offer explanation regarding alleged partition admitted by him. The so-called admission indicating mortgage of suit property is not evidenced by any registered or unregistered deed. Therefore, it was open to the respondent no.1 to withdraw the said admission more particularly when deceased defendant no.2 never claimed before any one that he had mortgaged suit field to the respondent no.1. Similarly no explanation could be elicited from original defendant No.2 because he had expired during the pendency of the suit. It is an admitted position that prior to the filing of the suit, no admission was made either by the respondent No.1 or by original defendant No.2 or defendant No.3 regarding character of the suit property. The so-called admissions in statements were made during mutation of entry no.108 which is essentially made for fiscal purposes. In fact, the thumb impression of the respondent no.1 and deceased defendant no.2 below the statements cannot be said to have been proved as required by Evidence Act. Non-examination of Thakor Dharma Kesa in the case is also a relevant factor to be taken into consideration by the Court. Therefore, the conclusion reached by the fact finding courts that the suit property was joint family property and no partition had taken place between the respondent No.1 and original defendants Nos. 2 to 3 is eminently just and it is hereby confirmed.
20.Article 261 of the Hindu Law relates to rights of purchaser of coparcener's interest and provides as under
:
"According to Mitakshara Law, as applied in Bombay, Madras and Madhya Pradesh and some other States, a coparcener may alienate his undivided interest in the entire joint family property, or his undivided interest in a specific property forming part of the joint family properties. but he has no right to alienate, as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; if he does alienate, the alienation is valid to the extent only his own interest in the alienated property."
In view of the above discussion, there is no manner of doubt that the sale of survey No.51/1 by original defendants Nos. 2 and 3 to the appellants is not valid and binding on the respondent No.1 so far as his 1/3 undivided share in the said property is concerned.
21.The next question which deserves to be considered is whether the first appellate court was justified in directing the appellants to hand over possession of the entire suit field to the respondent No.1. A stranger purchasing the undivided share of coparcener in a Joint Hindu family, if out of possession, should not be given joint possession with the other coparceners, but should be left to his remedy of a suit for partition. However, when the purchaser is in possession, he need not be ejected in a suit for recovery of possession brought by an excluded coparcener, but can be declared entitled to hold ( pending a partition ) as a tenant in common with the other coparceners. The evidence on record clearly establishes that on execution of sale deed, the appellants were put in possession of the suit field by the original defendants Nos. 2 and 3. Sale of the suit field by deceased defendant No.2 and original defendant No.3 to the appellants is not legal and valid and not binding on the plaintiff so far as his 1/3 undivided share therein is concerned. As the suit property was not partitioned, the respondent No.1 is also entitled to have joint possession with the appellants who are purchasers of undivided interest of deceased defendant No.2 and the defendant No.3.
So far as right of the purchaser to have possession of the whole of the property is concerned, the Division Bench in the case of Bhau Laxman Dhor ( Supra) has laid down that if the purchase is in possession of the property, he need not be ejected, but can be declared to be entitled to hold as a tenant in common with other coparceners. Under the circumstances, I am of the view that the first appellate court was not justified in directing the appellants to deliver the possession of the entire suit field to the respondent No.1. Therefore, that part of the decree by which the appellants are directed to deliver possession of the entire suit field to the respondent No.1 is liable to be set aside.
22.For the foregoing reasons, the Second Appeal partly succeeds. The decree passed by the first appellate court directing the appellants to deliver possession of the entire suit field to the respondent No.1 is hereby set aside and quashed. It is hereby declared that the respondent No.1 as well as the appellants are entitled to have joint possession of property bearing survey No.51/1 situated at village Rabaria, Tal. Palanpur, Dist : Banaskantha. The appellants who are purchasers of undivided interest of deceased defendant No.2 Partha Bhera and the defendant No.3 Dharma Kesa in the suit field are entitled to take proceeding to have that interest ascertained by partition. Having regard to the facts of the case, there shall be no order as to cost.
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