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Gordhan Das Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 173 of 1977
Judge
Reported in1986(2)WLN7
AppellantGordhan Das
RespondentState of Rajasthan
DispositionAppeal dismissed
Cases ReferredNarayan v. Gopal
Excerpt:
evidence act - section 43--question of law and question of fact--admission relating to ownership of property is a question of law and it is binding.;whether the plaintiff was the owner of the property is a question of fact, and not question of law and the learned counsel who appeared in the lower court, has inherent authority to concede on this point. as mentioned above, the consequence of wrong admission or an admission against the interest of the client may be considered in some of the proceedings but so far as this court is concerned, it is a binding.;appeal dismissed - - 4. gordhan das the plaintiff appellant was prosecuted of section 406 ipc by ramjilal alies keshav, gordhan das was acquitted by the criminal court as before the criminal court, he gave a written undertaking that he..........been obtained on that count as appears from the judgment was never disputed. contrary to it, the learned counsel who appeared before the appellate court, when confronted with the situation, conceded that so far as the plaintiff is concerned, the question of ownership does not arise. the crucial question in this discussion in the judgment of the appellate court reads as under:bl qkstnkjh izdj.k dh dk;zokgh es oknh dk ;g dfku jgk fkk fd mlus rks eky fooknklin ,d jke xksiky uke ds o;fdr ls mlds ,tsuv ds :i es cspus ds fy, izkir fd;k fkk a rfkk ;g eky jke xksiky dk fkk a oknh us ;g hkh dfku fd;k fd og fu;fer cfg;ka j[krk gsa rfkk mu cfg;ks es mlus jke xksiky dh feyfd;r crkdj ;g lc eky ntz dj j[kk gs a mlus bl izdkj ls ckr gh tksj nsdj ;g dfku fd;k fd eky mlus jke xksiky ls fy;k fkk a u fd.....
Judgment:

Guman Mal Lodha, J.

1. This is a civil second appeal filed by the plaintiff appellant against the judgment & decree passed by the District Judge, Bharatpur, accepting the appeal of the State defendant and reversing the judgment of the Civil Judge, Bharatpur.

2. The substantial question of law framed by this court on 14-11-1977 while admitting his appeal for consideration, reads as under:

Whether the judgment of the appellate court is in violation of the provisions of Section 43 of the Evidence Act and, therefore, it is illegal

3. Section 43 of the Evidence Act reads as under '43 Judgment, etc. other than those mentioned in Sections 40 to 42, when relevent.

Judgments orders of decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.

It appears from the judgment of the appellate court that the judgment was not passed only on the judgment of criminal court.

4. Gordhan Das the plaintiff appellant was prosecuted of Section 406 IPC by Ramjilal alies Keshav, Gordhan Das was acquitted by the criminal court as before the criminal court, he gave a written undertaking that he would hand over the money of the goods to Ram Gopal or any other person who so ever is found ultimately to be the owner of the good.

5. It is true that the judgment of the criminal court as such is not binding on the civil court but, the fact of the undertaking having been given and the acquittal having been obtained on that count as appears from the judgment was never disputed. Contrary to it, the learned Counsel who appeared before the appellate court, when confronted with the situation, conceded that so far as the plaintiff is concerned, the question of ownership does not arise. The crucial question in this discussion in the judgment of the appellate court reads as under:

bl QkStnkjh izdj.k dh dk;Zokgh es oknh dk ;g dFku jgk Fkk fd mlus rks eky fooknkLin ,d jke xksiky uke ds O;fDr ls mlds ,tsUV ds :i es cspus ds fy, izkIr fd;k Fkk A rFkk ;g eky jke xksiky dk Fkk A oknh us ;g Hkh dFku fd;k fd og fu;fer cfg;ka j[krk gSA rFkk mu cfg;ks es mlus jke xksiky dh feyfd;r crkdj ;g lc eky ntZ dj j[kk gS A mlus bl izdkj ls ckr gh tksj nsdj ;g dFku fd;k fd eky mlus jke xksiky ls fy;k Fkk A u fd Jh jketh yky ls A laas'ku U;k;ky; us bl ckr ds ckjs es flfoy fookn i{kdkjks ds chp ekuk fd vk;k eky dk ekfyd jke xksiky Fkk A Loa; oknh us ;g eky jkethyky ls fy;k Fkk ;k jke xksiky ls vr% bls ,d flfoy fookn ekurs gq, las'ku U;k;k/kh'k us vius fu.kZ; fnukad 10&3&1969 izn'kZ 4 }kjk oknh dks cjh fd; x;k A ml fu.kZ; ds iSjk 10 es ls'ku U;k;ky; us ;g vkKk nh fd tks jde 1000:i;s bl ckjs tek gS og ml vlyh ekfyd dks fn;s tk;sxs vFkkZr jketh yky ;k jke xksiky es ls ml O;fDr dks fn;s tk;sxs tks viuk Dyse flfoy U;k;ky; es lefiZr djsxk A

6. After discussing the evidence of the Civil suit the appellate court observed as under:

fo}ku vfHkHkkod Jh jfoUnzUkkFk Hkkj}kt dh jkt ljdkj dh vksj ls cgl gS fd oknh dh lk{; ls uk rks ;g eky fooknkLin ftldh dher 1000 :i;s tek gS oknks dk gh fl) gS ,oa u gh bl nkok las'ku U;k;ky; ds izn'kZZ 4 fu.kZ; dks ns[krs gq, gksus ;ksX; gh gS muds vuqlkj ;g Li'V :i ls eky dk ekfyd ;k jke xksiky jgk gS ;k jketh yky rFkk bu nksuks us vius gdks dks vHkh rd flfoy U;k;ky; ls r; ugh djok;k gSA vr% ,slh fLFkfr es ;g nkok gks gh ugh ldrk A vkidk ;g Hkh dguk gS fd eky ds okns es viuh feyfd;r ds lcwr es oknh us viuh cfg;ka izLrqr ugh dh rFkk izn'kZ 4 es ;g fu.kZ; jgk fd og eky dk ekfyd ugh gS rFkk eky dk ekfyd ,d vU; O;fDr gS bl cgl dks ns[krs gq, fo}ku vfHkHkkod oknh jsLiksUMasUV Jh lrh'k dqekj 'kekZ fcuk fdlh f>>d ds Lohdkj djrs gS fd bu ifjfLFkr;ks es jkT; ljdkj dh vihy Lohdkj dj yh tkos] D;ksfd oknh u rks eky dk ekfyd gS A

7. An argument was made by the learned Counsel for the State that plaintiff appellant has not produced his accounts book, and he has not shown that was owner of this property. Learned Counsel for the plaintiff accepted that his client has failed to prove that he is owner of this property.

8. Even if it is assumed that the judgment of the criminal court was not admissible under Section 43 of the Evidence Act, yet if on non production of the accounts book, the plaintiff's counsel conceded that he has failed to prove his ownership, the first appellate court was not mistaken in reversing the judgment.

9. The remedy of the plaintiff appellant in case of wrong admission of this nature by the learned Counsel on question of fact lies, if any, against the person who makes wrong mention against the interest of his client and, no grievance is made, so far as the criminal court is concerned, I am, therefore, of the opinion that there is no error of law much less substantial error of law is involved in this appeal.

10. It is true that the judgment of the criminal court cannot be used for the purposes to prove that whatever has been written in this is correct as Section 43 of the Evidence Act clearly lays down that they are irrelevant unless comes under the exceptions covered by Sections 40, 41 and 42 it is not necessary for the purpose of this court to consider, whether any of the exceptions can be invoked or not, because as I have already observed above that the admission was not on the question of law but on question of fact.

11. The learned penal lawyer appearing for the State relied upon the decisions of this court and the Apex court in Thiru John v. Returning Officer : [1977]3SCR538 Gulkandi v. Prahalad Narayan v. Gopal : [1960]1SCR773 .

12. It is not necessary to discuss all the decisions and the principles laid down therein but suffice to state that if an admission is made on a fact and that fact is relevant issue in the case normally, the party would be bound by it. Whether the plaintiff was the owner of the property is a question of fact, and not question of law and the learned Counsel who appeared in the lower court, has inherent authority to concede on this point. As mentioned above, the consequence of wrong admission or an admission against the interest of the client may be considered in some of the proceedings but so far as the Court is concerned, it is a binding.

13. The learned Counsel, who appeared before the lower court, has not given any affidavit that he has not made such admission of what he has admitted and from what the court has interpreted. In the absence of that affidavit, no argument can be considered against the admission.

14. Consequently, the appeal fails and is hereby dismissed without any order as to costs.


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