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TMI Blog2002 (12) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... as early as on 12.10.68 was disposed of on 22.12.78, on an appeal before the High Court, the matter was by an Order dated 21.1.83 remanded to the Trial Court. During the remit proceeding on the application of the plaintiff, the heirs of Shankarlal and Badruddin were deleted from the array of parties. The remand order was said to have been with a direction to consider all the materials on record, after hearing the parties afresh, with no right to produce any fresh material. The suit came to be dismissed by a judgment dated 19.3.83. Thereupon the plaintiff pursued the matter on appeal in first appeal No.25 of 1983 before the High Court and a learned Single Judge by a judgment dated 6.10.89, while allowing the appeal decreed the suit and directed the defendants to put the plaintiff in possession of the portion claimed. Aggrieved, the respondents filed LPA NO. 8 of 1990 and the Division Bench by a judgment dated 27.11.94 allowed the appeal and ordered the dismissal of the suit. Hence, this appeal. The case of the plaintiff was that the suit property originally belonged to Gendilal and that he died on 8.1.1966, leaving behind Gopali, his wife said to have been married even before 1934 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in statements, it was also held that Bajrangi was the daughter of Gendilal. The learned Single Judge also held that the claim of adoption of Jagannath by Gendilal was not sufficiently proved and established. In view of the above, on the death of Gendilal the suit property was held to have devolved upon Gopali and the plaintiff and that by virtue of the gift deed dated 18.5.66, the plaintiff was held entitled to the property. While allowing the appeal the suit was decreed as prayed and the defendants were directed to put the plaintiff into possession of the suit property. On further appeal before the Division Bench by the defendants, it was held that no presumption can be raised about the marriage of Gopali with Gendilal, on the evidence on record and that the plaintiff failed to prove that there was valid marriage of Gopali, the mother of the plaintiff with Gendilal. As to the parentage of the plaintiff it was held that plaintiff has not established that she was born to Gopali through Gendilal and per contra the other evidence including her own admission that when her mother Gopali went to Gendilal, she was a child, belied any such claim. So far as the parentage of the defendant Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its dismissal on 21.8.71. On further Revision before the Board of Revenue, M.P. at Gwalior, the Revision was said to have been allowed holding that Jagannath has not legally proved his adoption and thereby the order of the Tehsildar was said to have been restored, while setting aside the Order of the Sub-Divisional Officer. This Order of the Board was marked as Ex.P-5. It was now, for the first time, claimed that the issues decided by the Tehsildar and Board of Revenue and findings recorded operated as resjudicata and being pure questions of law the same could be raised at any time on the basis of materials already on record. In pressing the said claim, reliance has been placed on Explanation (viii) to Section of the Code of Civil Procedure, 1908. The learned senior counsel for the respondents strongly objected to the plea based on resjudicata being permitted to be raised at the belated stage, when the same was not raised either before the Trial Court or before the learned Single Judge and Division Bench in the High Court or even before this Court before the matter was taken up for final hearing. It was also urged that the on merits also, the said plea has no legs to stand and des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any right, which is recorded in the record of rights. Consequently, it could not legitimately be claimed that the Tehsildar or authorities exercising powers of mutation (original, appellate or revisional) have been accorded the status of Civil Courts or Courts of exclusive jurisdiction and for that matter, to use such orders as basis or source for asserting a claim of resjudicata before a competent Civil Court in a subsequent suit involving adjudication of title to the immovable property. That mutation proceedings before Revenue Authorities are not judicial proceedings in any Court of law and does not decide questions of title to immovable property is a trite position and principle of law vide- (Thakur) Nirman Singh & Ors vs Thakur Lal Rudra Partab Narain Singh and Ors. (AIR 1926 PC 100). The decision reported in Rajlakshmi Dasi & Others vs Banamali Sen & Otherrs (1953 SCR 154) rendered in the context of dealing with the efficacy of a decision relating to apportionment of compensation under the Land Acquisition Act among claimants can be of no assistance to the case on hand, viewed in the light of the very observations contained in the said decision of this Court itself, that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by law to take it for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, etc. It was also contended that the admission of facts in those statements would be sufficient per se to prove the claims made in evidence, as an admission. The statement as to any fact in issue or relevant fact to be admissible as an admission must be such as are relevant and may be proved against the person, who makes them or his representative in interest and not on behalf of the person, who makes them, unless when it is of such a nature that if the persons making it were dead, it would be relevant as between third person under Section 32. So far as the case on hand is concerned, it cannot be said that the mutation proceedings before the Tehsildar under the code was a judicial proceeding or that it was shown to have been made before a person authorized by law to take evidence. Even that apart, the statements during the mutation proceedings were all after the disputes arose betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Division Bench that Jagannath has not proved his adoption, the relief of possession at least should have been granted in favour of the plaintiff need mention to be rejected, only. The learned Trial Judge on an appreciation of materials on record specifically found that Jagannath and his heirs alone were in possession of the property and had not dispossessed forcibly by breaking open the lock of the house property as claimed by the original plaintiff. The learned Single Judge, who reversed the judgment of the Trial Court, has not recorded any contra finding in regard to possession but only chose to set aside the judgment of the Trial Court on its findings regarding the status of Gopali as the wife and the original plaintiff as the daughter and in the absence of proper proof of adoption of Jagannath. The Division Bench, when it reversed those findings of the learned Single Judge and directed the dismissal of the suit, was not obliged in law, to grant any relief of possession alone when it was not proved by the plaintiff otherwise, dehors title that she had been in actual possession of the property and had wrongfully and forcibly been dispossessed by the first defendant Jagann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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