JAGGAN Vs. HASANTU AND OTHERS

JUDGEMENT

(1.) This is a Plaintiff's appeal arising out of a suit for declaration that he is a co bhumidhar and co -sirdar of the plots mentioned in the plaint. It was alleged that the plots in dispute belonged to Gauji and after his death they were inherited by his two sons, the Plaintiff Jaggu and the first Defendant Basantu and both of them were co -bhmidhars and co sirdars of the plot in dispute. Smt. Sudhni was the wife of Gauji. It was contended on behalf of the first Defendant that hjaggu was not the son of Gauji. Sudhni had married one Nepal and Jaggu was his son; and after the death of Nepal, Sudhni had contracted a second marriage with Gauji and Basantu was the son of Gauji. The first Defendant, therefore, contested that Jaggu had no interest whatsoever in the plots in dispute and was not entitled to the relief's claimed by him. The trial court decreed the Plaintiff's suit. The first Defendant had relied on a statement made by Smt. Sudhni in an earlier suit instituted under Sec. 59 of the U.P. Tenancy Act in which she had stated that she was first married to one Nepal and Jaggu was born of that union and after the death of Nepal she had married Gauji and Basautu was born after her marriage with Gauji Admittedly the revenue court in which the aforesaid suit had been instituted had returned the plaint for present action to the proper court: The trial court expressed the view that line aforesaid statement of Sudhni was not admissible in evidence under Sec. 3(5) of the Evidence Act because the statement was made after the question in dispute between the parties had been raised. The trial court did not consider the admissibility of the statement under Sec. 33 of the Evident Act. It considered the oral and documentary evidence on the record and held that Jaggu was the son of Gauji and was entitled to the relief's claimed by him. On appeal the lower appellate court set aside the decree of the trial court and dismissed the suit. It expressed the view that the statement of sudhni before the revenue court was admissible. It further expressed the view that the documents relied on by the Plaintiff did not support the case and placing reliance on the aforesaid statement of Sudhni dismissed the Plaintiff's suit. It was contended by the learned Counsel for the Plaintiff Appellant that the statement of Sudni was not admissible under Sec. 32(5) of the Evidence Act because it had been made before the revenue court after the dispute between Jaggu and Basantu had arisen. The question raised before the revenue court was the same which was subsequently raised in the suit in appeal before me. Evidently the statement of Sudhni would not be admissible under Sec. 32 (5) of the Act because it had been made after the dispute between the parties had arisen. Learned Counsel further contended that the statement would not be admissible under Sec. 33 of the Evidence Act because the statement of Sudhni was not made in a judicial proceeding, since the court in which it had been made, had no jurisdiction to entertain the suit. It was contended that proceedings before a court which has no jurisdiction would not amount to judicial proceeding waft in the meaning of Sec. 33 of the Evidence Act. Consequently the "statement of Sudhni would not be admissible in evidence in the present suit. Learn ed counsel relied on Bimaraz v/s. Panaya(1) (ILR 3 Mad 48), Sankappa Rai v/s. Koraga ujarv (2) (ILR 54 Mad 561), Hardasmal Kubcband Kerpalani v/s. Jaggao Nath Jauhrimal (3) (ILR 7 Lah. 582), Sudhindra Nath v/s. State (4) ( : AIR 1953 Cal 339). In Sankappa Rai v/s. Koraga Pujary (supra) it was observed that:

(2.) A Division Bench of the Calcutta High Court in Sudhindra Nath v/s. State (supra) expressed its agreement with the aforesaid observations made in Sankappa Rai's case and observed:

(3.) It was admitted in the present case that the plaint in the earlier suit had' not been instituted in the proper court. It would mean that the revenue court had expressed the view that it had no jurisdiction to entertain the suit. Once it is found that the court had no jurisdiction to entertain the suit it would follow that all proceedings before it were not proceedings before a competent court and could not be said to be judicial proceeding within the meaning of Sec. 33 of the Evidence Act.