1. The first contention raised in this case is that in coming to the conclusion that Sundari Bewa had an 8-annas share in the property, the Court was wrong in relying upon the deposition of Arjun Teor (defendant No. 13) given hy him in a previous suit. It is contended that such evidence is admissible only under Section 33 of the Evidence Act or for impeaching the credit of a witness under Section 155, in which case it cannot be used as a substantive evidence.
2. It was pointed out, however, by Sir Richard Couch, C.J., in Sooian Bibee v. Achmut Ali 14 B.L.R. (App.) 3 at p. 5 : 21 W.R. 414. that 'Section 33 does not apply to the deposition of a witness in a former suit when the witness is himself a defendant in the subsequent suit and the deposition is sought to be used against him, not as evidence given between the parties one of whom called him as a witness, but as a statement made by him which would be evidence against him whether he made it as a witness or on any other occasion. It is used against him as an admission; Section 33 has no application to such a case as the present. The sections of the Evidence Act which do apply are the sections relating to admissions.'
3. The statement of Arjun in the previous suit was put in not as evidence of a witness, but as an admission, and we think the Court below is right in relying upon it as a piece of evidence.
4. Some arguments were advanced with regard to the mode of proof, but it is unnecessary to consider that contention as no objection was taken on the point in the Courts below.
5. It is next contended that the written statement of defendants Nos. 12 to 15, the mortgagors, in the mortgage suit cannot be used against the plaintiff, as the purchaser defendants, claiming under the mortgagor defendants, are precluded from relying upon it by reason of the decree obtained by Kamu Bepari against the latter in the mortgage suit.
6. This contention, however, can be raised only if the plaintiff stands in the same position as the mortgagee, Kamu Bepari, who obtained the decree. He claims that position by right of subrogation. The question of subrogation, however, was not raised in the pleadings, no issue was raised on the point and there is no trace of it in the judgments of the Courts below. We are unable to entertain the question here for the first time in second appeal, as the question cannot be determined in the present case without reference to facts. The plaintiff was neither a puisne mortgagee nor a tenant. He advanced money to the mortgagors, by which Kamu Bepari's mortgage-decree was paid off and in order to entitle the plaintiff to claim any right by subrogation, it was necessary for him to show that there was an intention to keep alive the mortgage security of Kamu Bepari, as the conveyance in favour of the plaintiff was not of the mortgagee's interest but only of the interest of the mortgagor, It is true that there is a presumption that a person intended to keep alive the security when it is for his benefit to do so, but the Court cannot act upon that, when no question was raised in the Court of first instance and the defendant, therefore, had no opportunity of meeting such a case or the presumption. That being so, neither the question of admissibility of the written statement of the defendants nor the question of estoppel of the mortgagors arises in the case. The appeal is accordingly dismissed with costs.