1. This is an appeal from the judgment and decree of the learned Subordinate Judge of Alipur dated the 13th June 1912. The appellant is defendent No. 1. The plaintiff sued for the recovery of the share which the plaintiff claims in a certain property in the appellant's possession The plaintiff's case is that he and defendant No. 1 are co-sharers and that he is entitled to a one-anna six gandas share in the land in suit. The Courts below have decided in his favour.
2. In this appeal it is contended that the learned Subordinate Judge in the lower Appellate Court has wrongly admitted a judgment in a previous suit not inter partes as evidence of an admission said to have been made by the defendant apparently incidentally in the course of that suit. That suit was brought by another person against the present defendant. The learned Subordinate Judge relies upon a certain passage in the judgment as proving an admission made by the defendant. I am of opinion that the judgment was inadmissible in evidence for the purpose for which it was used. It is not suggested that the learned Subordinate Judge who wrote the judgment is dead, or that the judgment is admissible under Section 32 of the Indian Evidence Act. What is suggested is that the judgment is admissible under Section 13 of that Act. It seems to me, however, the judgment has not been used as evidence of a transaction in which the right now claimed by the plaintiff was admitted or recognized. So far as I can see the transaction to which the judgment relates does not involve or include any such admission or recognition. The admission is not part and parcel of that transaction. The judgment has been used solely for the purpose of proving the alleged admission. It is very doubtful whether the admission made has the effect attributed to it by the learned Subordinate Judge. But apart from that it seems to me that the proper mode of proving any admission made by the defendant in the previous suit was by producing a certified copy of the defendant's written statement or if the admission was made orally, by producing a copy of the defendant's deposition or by putting in the witness-box some one who actually heard what the defendant said. The statement in the judgment does not purport to be a quotation of the precise words used by the defendant either in his written statement or in his deposition. It is certainly not clear how or why the admission came to be made for the purpose in view; the judgment seems to me to be no better than any other hearsay evidence of the admission.
3. The learned Subordinate Judge has come to the conclusion that the plaintiff has established his title mainly on the strength of the admission to which I have referred. The error, therefore, which he has committed in using the judgment for a purpose for which it cannot be legitimately used vitiates his decree. The result is that, in my opinion, the judgment and decree appealed from should be set aside and the case should be remanded to the lower Appellate Court in order that the appeal to that Court, so far as relates to plots Nos. 2, 3, 4, 9, 12 and 19, may be re-heard with reference to these observations. As regards plot No. 1 this appeal is dismissed with proportionate costs. The balance of the costs will abide the result of the re-hearing in the Courts below.
4. I agree.