Richard Garth, C.J. and Beverley, J.
1. Gobind being dead, his evidence in the former suit would be admissible in this suit under Section 33 of the Evidence Act, provided (1) that the former suit was between the same parties or their representatives in interest; (2) that the adverse party in the former suit had the right and opportunity to cross-examine; (3) that the questions in issue were substantially the same in both suits.
2. We think that the first of these conditions was not sufficiently fulfilled. The Subordinate Judge says that the deposition is not admissible, because Gobind was not a party to the former suit. What the Subordinate Judge means to say is probably this: Gobind's son Eshan, whose interest, as well as that of Gobind, has been purchased by the plaintiff in the present suit, was the ostensible party on the record in the former suit; but the finding of the Court was that he had at that time no interest in the subject-matter of the suit, the real party interested being Gobind. Gobind, therefore, and not Eshan, was the representative in interest of the present plaintiff; and if he had been a party to the former suit, his deposition would no doubt have been admissible. But he was no party to that suit, and the fact that Eshan subsequently acquired an interest in the property will not avail to make the evidence taken in that suit admissible in the present suit. We think that, in order to satisfy the requirements of Section 33 of the Evidence Act, the two suits must be brought by or against the same parties or their representatives in interest at the time when the suits are proceeding, and the evidence is given.
3. The appeal must, therefore, be dismissed with costs.