1983 PLP 1265 (SCMR)

M. S. H. QUARISHI, J.‑This petition arises from a suit filed by Sultan , Hamid Jan, the late father of Sultan Wasi Jan (present petitioner), for a declaration that he had not made any gift of the suit land in favour of respondents Nos. 1 to 3 and Shehzada Salim (since dead), the children from his second wife. The plaintiff, who at the relevant time served in Hyderabad Deccan, executed a power‑of‑attorney in favour of his brother Sultan Asad Jan who got a mutation of gift entered in favour of the donees on 2‑11‑1928 which was duly sanctioned on 20‑3‑1930. Some twenty years later, i.e., in 1950, he filed the suit. However, in his better state ment recorded under Order X, rule 1, C. P. C., he admitted that be had by the power‑of‑attorney authorised his said brother to make the gift in favour of the donees who were at that time minors. The suit remained pending for a long time because of litigation on interlocutory matters during which period the plaintiff died, and was ultimately dismissed on 5‑2‑1947. The petitioner's first appeal before the Additional District Judge and the second appeal before the High Court having failed, he is seeking leave to appeal.

2. The question whether the gift had been validly made or not being one of fact and concurrently decided by the first two Courts, the High Court held that the decision could not be questioned in second appeal. The argument that the gift had not been completed as possession had not been delivered, was repelled for the reason that the donees being minor children of the donor, actual delivery of possession was not necessary and the mere recital in the mutation was sufficient.

3. Learned counsel urges, on the authority of Ahmad Khan v. Rasul Shah (PLD 1975SC311) that the admission made by the plaintiff though relevant was not conclusive and that it could be shown to be wrong, the admission in this cited case had not been made under Order X, rule.1, C. P. C. nor in the course of the proceedings of the case but in an application addressed to the Excise and Taxation Officer. In this connection it had been held that an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. Anyway, an admission made on a previous occasion which is sought to be produced' as admission under section 31 of the Evidence Act is distinguishable from) the one made under Order X, rule 1, C. P. C. The object of examination, under Order X, rule 1 is to enable the Court to find what really the nature of the dispute is and the points at which the parties are at issue. A statement recorded under this rule is, therefore, on the same footing as pleadings in the case and admissions of fact made under this rule can be treated as conclusive for the purpose of the suit. It was held in Abdul Aziz v. Mt. Mariyam Bibi (AIR1926Al1.710) that admissions made by a party under Order X, rule 1 are conclusive against him. The Court would be competent on the basis o such admission to pronounce judgment under Order XII; rule 6, C. P. C. In, any case an issue had been framed and decided on the basis of the material on record.

4. No case is thus made out for an interference with the concurrent decision reached by the three Courts below. The petition is dismissed. M. Z. M. Petition dismissed.