PAREETH KUNJU Vs. SALMA BEEVI

JUDGEMENT

(1.) The first defendant is the appellant in this Second Appeal which is from concurrent decrees allowing the suit. The three plaintiffs, of whom plaintiffs 2 and 3 were minors, sued for a declaration that the suit property, 74 cents in R.S. No. 3498/1, Irumpayil Kanakulam pakuty, belonged to them and that the first defendant was attempting to take possession of the same in execution of the decree in O.S. No. 186 of 1124. According to the plaintiffs, the property was obtained in Puduval Registry by their father, Mytheenkannu (deceased) on payment of tharavila to the Government and that it was not included either in the mortgage for the redemption of which the decree in O.S. No. 186 of 1124 was obtained or in the sale of the equity of redemption to the first defendant. The 1st defendant contended that the suit was barred by res judicata by reason of the decree in O.S. No. 186 of 1124 to which the plaintiffs and other heirs of Mytheenkannu were parties and that the suit property was an accretion to the mortgaged property. The case for the plaintiffs was that the decree was not binding on them. After the plaintiffs adduced some evidence the first defendant was examined and, apparently on the strength of his deposition, his counsel conceded that the first defendant did not want recovery of possession of the property. The suit was accordingly decreed without entering into the question raised by the parties. On appeal by the first defendant, the lower appellate court confirmed the decree holding that the Trial Court was entitled to act on the concession of the first defendants counsel which could not be said to be unauthorised. The first defendant has therefore preferred this Second Appeal.

(2.) It is argued on behalf of the appellant that an admission, unless it has been acted upon by the opposite party to his prejudice, is not conclusive and that it can be seen from the evidence that the admissions made by the first defendant were the result of a mistake made by him regarding the identity of the property. According to him, the suit property was included in item No. 1 of O.S. No. 186 of 1124 and the first defendant was actually referring to another plot of 79 cents covered by Ext. I in O.S. No. 186 of 1124 which was excluded from the decree on the contentions of other parties. It is useful in this connection to refer to some of the admissions made by the first defendant when he was examined as Dw. 1 on 20-3-1957. In his chief examination he stated:

(3.) The argument that the 1st defendants admissions were the result of a mistake cannot be accepted. He had ample opportunity to rectify the alleged mistakes if he cared. The admissions in chief examination were made when he was examined on 20-3-1957. Since then he was examined on 18-6-1957 and 25-11-1957. He could at least have filed an affidavit in the Trial Court to clarify the position. This was not done even in the lower appellate court. It cannot be said that the plaintiffs will not be prejudiced if the alleged mistakes are rectified now. It is possible that the plaintiffs could have adduced more evidence to prove their case if these admissions had not been made. In view of the unambiguous statements made by the 1st defendant on oath, his counsel was perfectly justified in conceding that he did not oppose to passing of a decree as prayed for by the plaintiffs. The Federal Court has observed in Prithwi Chand v. Sukhraj Rai (AIR 1940 F.C. 25) as follows: