ALI MAHAMMAD KHAN Vs. SHEIKH MAHARAJ BEPARI

JUDGEMENT

(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/s. 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.