1988 PLP 2211 (CLC)

Kamal‑ud‑Din Mirza for Respondents. Date of hearing: 24th March, 1980. This second appeal has been filed by the unsuccessful plaintiff, who lost his case before both the learned Courts below. The facts giving rise to this litigation are that Property No. E‑459/A Outside Shah Alam Gate, Lahore, was transferred to appellant and his brothers and sisters, who have been arrayed as respondents by the Deputy Settlement Commissioner, by his order, dated 31‑12‑1959 (Exh.D.l). Later on E.T.O. was issued to the transferees which was followed by the P.T.D. (Exh.P.5). The names of both the parties have been mentioned in EXh.D.l and EXh.P.5, without any specifications of their shares. It appears that the appellant as well as each of the respondents held separate Compensation Book in his/her name. After adjustment of the transfer price of this property against the Compensation Books, the balance price was paid by the appellant and the respondent jointly, to the Settlement Department from the Compensation Books of other persons through association deeds, Exhs.D.2 and D.3. These documents contain the names of both the parties, but their respective shares are not mentioned therein.

2. The cause out of which this second appeal has arisen, was commenced by the appellant, by filing a suit for possession through partition of the property in dispute. He claimed ?th share and pleaded that the property was to be divided according to the Shariat Law of Inheritance.

3. The respondents resisted the suit and contended that the property was transferred to them in equal shares and the evaluation price paid by them proportionately. According to them, the appellant was entitled to only 1/5th share. It appears that prior to this litigation respondent No.2 filed a suit for permanent injunction against the appellant and other respondents restraining them from alienating his share in the property. In the plaint, EXh.P.l, he averred that the parties are co‑sharers in the property in dispute as heirs of Sayed Mehboob Hussain. He enumerated therein, the share of each brother as 7/32d and that of each sister as 7/64th. Their mother, i.e. widow of Sayed Mehboob Hussain was shown to be entitled to 1/8th share. In the written statement submitted by other respondents Exh.P.3, the corresponding para of the plaint embodying the statement of shares of the parties, was not denied. The suit filed by respondent No.2 was withdrawn by order, dated 8‑2‑1974, Exh.P.4. The appellant tendered these documents in evidence and besides his own testimony he relied or the depositions of Abdur Rashid, P.W.1, Mukhtar Hussain, Record Keeper of the Settlement Department P.W.2, and Muhammad Ibrahim, P.W.3. On the other hand, Matloob Hussain, respondent appeared from the other side.

4. The learned Civil Judge held that according to the P.T.D. the property belonged to the parties in equal shares. He also referred to Exhs.D.2 and D.3 to maintain that the evaluation price was paid by them equally. In his opinion, the admission made by the respondents in the previous litigation could not improve the appellant's case. According to the learned Civil Judge, as the appellant himself had excluded the mother from inheritance he could not assert that the property was to be shared by the parties accordingly to Shariat Law. In view of his these findings he held that the appellant was entitled to only 1/5th share and accordingly he passed the preliminary decree, dated 29‑11‑1975, in favour of the appellant.

5. Aggrieved by this judgment and decree of the learned trial Court, the appellant filed an appeal which was dismissed on 17‑1‑1977. Before the first appellate Court he also moved an application under Order XLI, Rule 27 of the C.P.C. for production in evidence, a copy of the application filed by the respondents before the Settlement Department for adjustment of the price. This application was disallowed by the learned Additional District Judge, who was seized of the appeal. As regards the order dated 31‑12‑1959, on merits of the case, he maintained that the property was transferred to the parties jointly by the Deputy Settlement Commissioner by his order on the basis of their possession and not according to their entitlement under the Shariat Law. In his opinion, EXhS.P.l to P.3, did not deserve any consideration for determination of the dispute. He also referred to Exhs.D.2 and D.3, to hold that the verified amount of the claim was purchased by the parties jointly. The fact that the appellant did not yield any share to his mother, also influenced the decision of the learned Additional District Judge. In view of his these findings, the learned Additional District Judge. maintained the learned trial Court's determination of the appellant's share as 1/5th.

6. The learned counsel for the appellant argued that according to the instructions, dated 30‑5‑1960, issued by the Chief Settlement Commissioner under section 16‑B of the Displaced Persons (Compen?sation and Rehabilitation) Act, 1958, in the event of transfer of the property to two or more persons jointly, unless their shares were specified in a written agreement, to be filed by them with the Settlement authorities:‑ "The share of each transferee would be fixed according to the amount contributed by him in cash or by utilizing the amount of compensation admissible to him." He referred to the statement of the appellant to contend that the deferred payment available in the Compensation Books of his sisters i.e. respondents Nos. 3 and 4, which they utilized towards the clearance of the evaluation price, was half of that of their brothers, meaning thereby that the share of respondents 3 and 4; as per instructions of the Chief Settlement Commissioner should have been half of the share of each brother. It was submitted that the P.T.D. ought to have been construed in the light of these instructions. He also heavily relied on EXhS.P.l and P.4 and submitted that the admissions made by the respondents in these documents were not given due weight by the learned Courts below.

7. I have examined the entire record quite thoroughly. It is not possible to agree with the submissions made by the appellant's learned counsel. The property was transferred to the parties on the basis of their possession and not as heirs of Sayed Mehboob Hussain. The Deputy Settlement Commissioner's order dated 31‑12‑1959, EXh.D.l, whereby the property was settled on the appellant and the respondents, fully substantiates this inference. Neither this order nor the P.T.D. made reference to the shares of the parties. The property was trans?ferred to them jointly. The obvious conclusion is that it was alienated in their favour, in equal shares and not according to Shariat Law as asserted by the appellant.

8. As regards the non‑compliance with the instructions of the Chief Settlement Commissioner, by the Settlement authorities, if it was so, the appellant's remedy lay in filing an appeal against the Deputy Settlement Commissioner's order dated 31‑12‑1959; he cannot be permitted to agitate against this order at this stage. Furthermore, in his suit, the appellant has not at all questioned the validity of the order, dated 31‑12‑1959, or that of the entries made in the P.T.D. The attack on the vires of these documents cannot be entertained without there being any plea to that effect in the plaint, even otherwise, there is nothing on the record to suggest that the payment made by the appellant or his other brothers towards clearance of the transfer price, was double than the contribution made by their sisters. The solitary statement of the appellant in this respect is of no significance. The appellant's version does not get any corroboration even from the deeds of association, Exhs.D.2 and D.3. Reliance on the instructions in question by the appellant is thus of no avail to him. 9.???????? As regards the value of the admissions embodied in EXhS.P.l and P.3, it is well‑established that an admission is not conclusive against a person making it unless such admission amounts to representation and has been acted upon by the opposite party to whom it is made. Short of estoppel, a person making the admission has the right to explain it, to show that it is not binding on him. The respondents were, thus, entitled to have the opportunity to explain their admissions. In Sikandar Hayat and 4 others v. Master Fazal Karim P L D 1971 SC 730, it has been laid down by the Supreme Court that it is necessary that even an admission under section 21 of the Evidence Act, relied upon by a party should be put to the other party and quoted with approval, the following passage from a D.B. judgment of this Court in the case of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Rama and, others A I R 1946 Lah. 65: "Where a party has gone to the witness‑box on the point in issue and in the witness‑box has made a statement inconsistent with the admission or the statement made in the witness‑box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross‑examination was drawn to that statement and he was confronted with the specific portions of that statement which were .sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party." Matloob Hussain respondent, appeared in ‑the witness‑box. He was cross‑examined on the question of allocation of shares but his attention was not specifically drawn to the particular portions of the written statement which ran counter‑ to the stand taken by him or for that matter by other respondents in the suit, out of which the instant appeal has cropped up. The written statement, Exh.P.3, therefore, cannot be used against the respondents'. Support for this view can also be had from Ananta Kumar Sarkar v. Sebarate Ulla Sardar PLD 1966 Dacca

114. The appellant's own written statement, Exh.P.2, is an admission in his favour, which does not carry any evidentiary value. Regarding the admission contained in the plaint, EXh.P.l, .I can do no better than to .make reference to the observations made in Rahabai‑Shriniwas Nadgir v. Government of Bombay A I R 1941 Bom. 144, by Beaumont, C.J.: "A party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make admission, but that admission is not binding in any other suit, and certainly not for all time." The appellant did not surrender any share to his mother. It is, therefore, not understandable that with what rectitude he anchored his right on the application of Shariat Law of Inheritance. It was in his context that the learned first appellate Court referred to the exclusion by the appellant of his mother from sharing the property in dispute.

10. For all these reasons this appeal fails and is hereby dismissed, leaving the parties to bear their own costs. H. B. T./Q‑9/L ‑‑‑??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.