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Second Appeal No. 58 of 1956, decided on 1st, July 1957.

Admission by one defendant‑Binding on co‑defendants when jointly interested ‑Admission in a previous suit by a co‑defendant does not amount to estoppel‑Such admissions are of no value if false, or the Court has disbelieved then.

An admission, by one defendant in a suit is binding on his co‑defendants when the said defendant was jointly interested with such co‑defendants in the subject‑mattes of the suit, the admission being related to the subject‑matter and made by the declarant in his character of a person jointly interested with the other parties against whom the evidence was sought to be tendered .

Admission in a previous suit by a defendant who is jointly interested with his co‑defendants does not amount to an estoppel and, if such admission is to be admissible at all, it is admissible under section 21 read with section 18 of the Evidence Act. Where, an admission has been proved to be false, it is of no value and if in the previous case itself a decree has been made contrary to the admission, it cannot be said that the admission is, a true one which should be relied upon.

Not conclusive unless amounting to an estoppel ‑Even when not shown‑to be estoppel‑ Presumption of truth of fact admitted exists‑Onus of proof shifts on party making admission to disprove it.

An admission even when it is relevant, does not become conclusive unless it can be shown to amount to an estoppel, but, on the other hand; even when not so shown to be an estoppel, its evidentiary value lies in this that it raises a presumption that the fact admitted is true and thus shifts the onus of proof on the party making the admission to disprove it or to show that the admission was made under circumstances which do not make it binding upon him.

A. Sobhan for Appellant.

A. S. M. Mofakher for Respondent.

This appeal arises out of a suit for recovery of arrears of rent in respect of a taluk known as "Fateh Muhammad Sikdar" held under Taraf Jugamagaj, recorded in R. S. Khatian No. 494 of Mauza Dakshin Rangamaita and R. S. Khatian No. 1504 of Mouza Uttar Dhurung, for the years 1307 and 1308 11laghi years at the rate of Rs. 76‑13‑9 per annum as also for cesses and damages for non‑payment in time.

The plaintiff who is the appellant before me claimed to have purchased the superior interest in the said taluk at a revenue sale held in 1945 whereby the residuary share in the said Taraf Jugamagaj recorded in Touzi No. 1445 of Chittagong Collectorate was sold. According to the plaintiff, the taluk in question was held under the said share and, therefore, the defendants were liable to pay rents to him.

All the defendants contested the said suit. They did not challenge the plaintiff's purchase of the residuary share but they challenged his right to claim rents from them. According to them, the taluk held by them, although admittedly under Taraf Jugamagaj, was not held by them under the residuary share, but under the main share holders of the Taraf of which the owners, according to them, were Ahmadur Rahman Chowdhury, Fazlur Rahman, Bachhu Mia and Faruk Ahmad, who had in fact realised the rents for the very same years, now claimed by the plaintiff, by a contested suit, being Rent suit No. 548 of 1948.

Upon these pleadings, the only question in dispute between the parties in the suit out of which this appeal arises was as to under which share of the Taraf Jugamagaj the taluk in question was held by, the defendants.

The trial Court upon a consideration of some of the docu ments, namely, Exts. 3, 6 and 6‑A, came to the conclusion that the said Ahmadur Rahman, Fazlur Rahman, Bachhu Mia and Farukh Ahmed were the owners of the residuary share of the said Taraf Jugamagaj and, since the plaintiff had by virtue of his purchase in the revenue sale acquired only the said residuary share, he was entitled to recover rents for the said taluk. He, therefore, decreed the suit in full.

On appeal, however, the learned Subordinate Judge was of the opinion that the learned Munsif had only considered a part of the evidence and, therefore, his findings could not be supported. Upon a careful examination of the documentary evidence on record, the learned Subordinate Judge came to the conclusion that the said Ahmadur Rahman, Fazlur Rahman, Bachhu Mia and Faruk Ahmad held not only the residuary share in the said Taraf but also were owners under several other Touzi accounts. Thus Ahmadur Rahman had also a share in Hissah No. 6 of the said Taraf and Fazlur Rahman, Bachhu Mia and Faruk had also shares in Hissahs Nos. 1 and 5. Furthermore, Faruk Ahmad had a further share in Hissah No. 6. Thus, since the same person had a share in the residuary Hissah as also in other separate accounts it could not be said, according to the learned Subordinate Judge, that the plaintiff, by auction‑purchasing in the revenue sale only the residuary hissah, could claim rents also from tenants under the other separate accounts. The initial onus, therefore, was upon the plaintiff to prove that the relationship of landlord and tenant subsisted between him and the defendants but this had not been discharged in the present case since the only evidence that the plaintiff produced of this was certain private Touzi papers kept in his own sherista showing collections of certain rents in respect of a few tenants recorded therein as holding under the residuary hissah.

The learned Subordinate Judge also took the view that the defence set up by one of the defendants in the present suit, in the previous rent suit of Ahmadur Rahman and his co‑sharers that the superior interest in the lands in question had been auction purchased by the present plaintiff could not be treated either as an admission binding upon the other defendants in the suit or as being of any assistance or value whatsoever.

In the circumstances, the learned Subordinate Judge reversed the decision of the trial Court and dismissed the plaintiff's suit with costs.

It is against the decision that the plaintiff has now come up on appeal to this Court and on his behalf three grounds have been urged. Firstly, that that the judgment of the learned Subordinate Judge is not a proper judgment of reversal since he has not taken into consideration the oral evidence adduced in the case. It appears from the records that two witnesses were examined on behalf of the plaintiff and one on behalf of the defendants, and a large number of documents were also relied upon by them. But both the Courts below have relied only upon the documentary evidence. I have myself perused the oral evidence which is not of a very satisfactory nature. Whilst the plaintiff and his witnesses swore that the lands belonged to the residuary share, the defendants' witnesses swore that they did not belong to the residuary share. This oath against oath, therefore, does not carry us very far, and, in the circumstances, I am not surprised that the Courts below placed no reliance at all on this kind of oral evidence. Had the oral evidence not been of such an unsatisfactory nature, this would certainly have been a substantial point, for, the failure to make any mention of such evidence in either of the judgments of the Courts below would have amounted to non‑consideration of material evidence. But since I am satisfied that the oral evidence in the present case was not very material for the decision of this case, 1 do not propose to interfere with the judgments of the Courts below on that account.

The next ground urged on behalf of the appellant is that the learned Subordinate Judge erred in law in taking the view that an admission contained in a written statement in a previous suit by one of the defendants in the present suit with regard to the lands in dispute held by the said defendant and the other defendants jointly was not binding on the other defendants or that it was not of any value.

The answer to the question as to whether an admission by one defendant in a suit is binding on his other co‑defendants will, in my opinion, depend upon whether the said defendant was jointly interested with his co‑defendants in the subject‑matter of the suit whether the admission related to the subject‑matter in dispute and whether it was made by the declarant in his character of a person jointly interested with the other parties against whom the evidence is sought to be tendered. It is in this view that it has repeatedly been held that the admission by one of several joint tenants is binding also on the other joint tenants : Amber Ali and others v. Lutfe Ali and others (21 C W N 996) and Bhutnath Bandopadhya and others v. Jagattarini Dasi (71 C L J 200).

There can be no doubt that in the present case since the defendants were sued in their capacity as joint tenants and the admission in the previous suit was made with regard to the subject‑matter in dispute in the present suit, namely, the Taluk Fate Muhammad Sikdar in the capacity of a person jointly interested with the other defendants, the admission was one which was admissible not only against the defendant who made the admission but also against the other defendants as well. The fact that the plaintiff was not a party to the previous suit was of no consequence whatsoever.

Having come to this conclusion, the next question that arises is whether this admission is a conclusive admission in the nature of an estoppel and if not so, then what is the evidentiary value of such an admission. On behalf of the respondents It has been very strenuously urged that such an admission is not in the nature of an estoppel at all and furthermore that, even if it is only to be treated as a piece of evidence to be taken into consideration with the other circumstances, the learned Subordinate Judge was right in saying that it was of no value, for an admission, which is in fact found to be wrong, is of no value at all. In the present case, therefore, according to the respondents, since in the previous suit itself the admission had not been accepted and a decree had been made contrary to the said admission, the admission, even if admissible in evidence, was of no value at all.

In support of this contention, reliance has been placed on behalf of the respondents on the following cases :‑Chunder Kant Chukorbutty Christian v. Pearee Mohun Dutt and others (5 W R 209), where it was laid down that an admission made by a party to a suit in other cases may be taken as evidence against him, but cannot operate as an estoppel in a case' in which his opponents are not proved to have ever heard of it or to have; been in any way misled by it or to have acted in reliance upon it.

In the case of Mst. Munia v. Manohar Lal and others(A I R 1941 Oudh 429) a Division Bench of the Oudh Chief Court held that an admis sion which is wrong in point of fact and is evidently made in ignorance of legal rights has no binding effect on the person making it.

As against this, reliance has been placed by the learned Advocate for the appellant on the decisions in the cases of Hurish Chunder Mullick v. Prosunno Coomar Banerjee and others (22 W R 303) and Kashee Kishore Roy Chowdhury v. Bama Soondaree Debi Chowdhurani and others (23 W R 27), where it was held that a statement made by a defendant in another suit may be used as an admission within the meaning of section 18 of the Evidence Act and would, in circumstances like the present, be an important part of the plaintiff's case.

There can be no dispute with the principles enunciated in the said cases. There can be no question that such admissions do no amount to an estoppel and that if such admissions are to be admissible at all, they are admissible only under section 21 read with section 18 of the Evidence Act. It is also, in my view, correct to say that where an admission has been proved to be' false, it is of no value and it appears to me that, if in the previous case itself a decree has been made contrary to the admission, it cannot be said that the ‑admission is a true one which should be relied upon.

Although the learned Advocate for the respondents did not cite any case specifically on this point, it appears that in the case of Jnan Chowdhury and others v: Dollar Chowdhury and others (18 W R 347), Sir Richard Couch, C. J., and , Ainslie, J., did so hold. According to their Lordships, a statement made in a former suit in which the Court, far from acting upon it, passes a decree opposed to it, cannot be treated as conclusive. To the same effect is the decision in the case of Surendra Prasad Lahiri Chowdhury and another v. Gobinda Das Chowdhury (43 C W N 15), where Khundkar, J., held that an admission in a petition of compro mise filed in a Court in a previous civil proceeding, although admissible as an admission, would be of no value and cannot be relied upon if a decree opposed to that admission has been made in the previous case. In this view of the matter, since it is clear from Exh. 3, the judgment in the previous case, that the alleged admission was not accepted and a decree was made which was opposed to it, the learned Subordinate Judge was right in taking the view that the admission was of no assistance or value. The learned Subordinate Judge has nowhere said that the admission is not admissible in evidence but all that he has said is that its evidentiary value is nil. This contention of the learned Advocate for the appellant, therefore, also fails.

Before I pass on to the consideration of the next question, I would like to point out that an admission, even when it is relevant, does not become conclusive unless it can be shown to amount to an estoppel but, on the other hand, even when not so shown to be an estoppel, its evidentiary value lies in this that it raises a presumption that the fact admitted is true and thus shifts the onus of proof on the party making the admission to disprove it or to show that the admission was made under circumstances which do not make it binding upon him. This rule is now well -established and was enunciated by their Lordships of the Judicial Committee in the case of Rani Chandra Kunwar v. Chauduri Narpat Singh and others (34 I A 27), where their Lordshits quoted with approval and adopted the enunciation of the rule as made in another English case which was to the following effect :‑

"There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence, and strong evidence against him ; but we think he is at liberty to prove that such admissions were mistaken or were untrue and is not estopped or concluded by them unless another person has been induced by them to alter his condition. In such a case the party is estopped from disputing their truth as against that person (and those claiming under him) and that transaction, but as to third parties he is not bound."

Their Lordships also held that a proof of such an admission shifts the burden because as against the party making it what a party itself admits to be true may reasonably be presumed to be so.

This takes me to the next ground urged, in support of the appeal, that the learned Subordinate Judge had wrongly

placed the onus of proving that the admission was correct upon the plaintiff in the present case, for, according to the learned Advocate for the appellant, the learned Subordinate Judge should, at any rate, have held that the admission did shift the onus of proof upon the defendants. There would, in my opinion, have been great force in this argument, if the admission was of such a nature that it could be relied upon. But as I have already held that the admission in the present case was not such as could be relied upon ; it follows that this question of shifting of onus also does not arise. In the circumstances, I am satisfied that the learned Subordinate Judge has substantially come to a right decision in this case and that this appeal must fail. This appeal is accordingly dismissed with costs.

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