P L D 1966 Dacca 114 (PLP)

Defendant has traversed plaintiff's case, but the material point in so far as it has a bearing on this appeal is as follows :‑

Plaintiff has claimed title from say `X'. `X' had created an interest in favour of `W', who happens to be the father of `X'. Defendant is an under‑tenant with whom `W' has settled the land. `W's interest in the land in dispute has been recorded in the settlement records. Plaintiff had to assert, as the basis of his case, that `W's' interest in the suit‑land, being an encumbrance, was annulled by `X' when he had purchased the suit‑land in pursuance of a rent decree. The question is : Has the interest of `W' been annulled? If so, plaintiff is entitled to a decree in the suit. If the interest of 'W' has not been annulled, it is obvious that :W', having inducted defendant as an under‑tenant, plaintiff cannot claim a decree against him (defendant) inasmuch as the interest created in favour of plaintiff would create no title to the suit‑land. On the evidence led between the parties learned Munsif, who tried the suit, decreed the same in favour of plaintiff. On appeal learned Subordinate Judge of Rangpur, who heard the same, affirmed the judgment and decree passed by the learned Munsif and dismissed the appeal. Hence this appeal. In the judgments, which have been pronounced by the Courts below, both the Courts have discussed a mass of evidence which can only be taken as circumstantial evidence. It supports the plaintiff. It is contended that the appellate Court below misdirected itself when it treated a written statement filed on behalf of the plaintiff in a previous suit to be an admission against the defendant. The said written statement has been marked as Exh. 2 in this suit. In the aforesaid written statement there occurs a statement to the effect that the landlord has annulled encumbrances, such as, the interest of the father of the plaintiff. Defendant in his examination‑in‑chief has denied such annulment. He has been cross‑examined to the effect as follows: "This is written statement filed by me after I signed it. Mr. T. Hossain, Advocate, drafted this W. S. on my statement of facts. Mr. T. Hossain and Babu R. N. Roy conducted the previous suit for me. Sebarat plff. did not take settlement of suit land. I executed a kabuliyat in favour of Ghechu." This is all the cross‑examination to which the witness was subjected. It has been argued before me that the statement made in the written statement to the effect that the aforesaid encumbrance is annulled, cannot operate as an admission against the defendant unless he was confronted with such statement. In my opinion, this contention of the learned Advocate for the appellant must be upheld. It is true that the witness had acknowledged the written statement the one which was filed on his behalf. It is also true that his evidence in cross‑examination is that the written statement was prepared on his instructions and upon statements made by him. The law, however, requires that when a person is sought to be contradicted by any previous statement, his attention must be specifically drawn to such statement. That being, so, the written statement cannot, in f the face of the insufficient cross‑examination, as set out above, be treated as admission made by defendant in a previous suit. The view that I take on this question finds support in a Full Bench decision of the Lahore High Court in the case of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Rain (A I R 1946 Lah, 65). It has been stated as follows (P. 73) in the judgment of the Full Bench: "A previous admission of a party who has gone into 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 is such which involves a 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 specific portions of that statement which were sought to be used as admission. 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." I, therefore, hold that the appellate Court below misdirected itself when it treated the aforesaid statement as admission made by defendant. Inasmuch as the appellate Court below has been influenced by what it has treated as an admission by defendant, I feel bound to set aside the judgment pronounced by that Court. Mr. Moinul Huq appearing on behalf of the respondent has argued that there are material pieces of evidence in this case, which can be treated as circumstantial evidence and that such pieces of evidence would raise a presumption of such annulment as claimed by plaintiff. It appears that there is substance in this contention, but in view of the order that I propose to make in this case, I refrain from making any further comment on the merits of the case. For reasons stated above, I allow this appeal and set aside the judgment and decree passed by the appellate Court below. It is directed that this case be sent back to the appellate Court below for a re‑hearing of the appeal and its disposal in accordance with law upon a full consideration of all the admissible evidence in this case. Costs will abide the result of the appeal. K. B. A.?????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.