BISHWANATH PRASAD AND OTHERS versus DWARKA PRASAD (DEAD) AND OTHERS

Citation: [1974] 2 S.C.R. 124 · Decided: 30-10-1973 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Dismissed

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Judgment (excerpt)

124 
BISHWANATH PRASAD AND OTIIBRS 
v. 
DWARKA PRASAD (DEAD) AND OTIIERS 
October 30, 1973 
-
[H. R. KHANNA, V. R. KRISHNA IYER AND R. S. SARKAIUA, JJ.] 
Indian El·iJence A.cl (1 of 1872), s. 21-Admis.rio11-Di.r1inction 
between 
aJn1i.rsioru of party and adml.rsioru of w~tJU.rs. 
· 
Jn a 1uit for partition the first defendant (re!pondent in this Court) claimed 
that the disputed items of property exclmiYcly belonged to him. .The 
trial 
court as well as the High Court accepted .his case on the basis of admiuiou 
made by the first plaintiff and the eighth defendant (father of the plaintiff) in 
depositions in an earlier suit as well as similar admissions made in the wntten 
s.tatement 1il~ in that suit bv the eighth defendant together with the present 
pJaintiffs, and held that the said property b:longed to the :first defendant. 
It was contended in this Court that (1) the courts - below relied on the 
admissions of the plaintiffs and the eighth defendant which were not even avg· 
gt!Sted in the written statement and as 1uch a new case which was at total 
variance from the pleadings should not have been considered by the court; and 
C2) these admissions were not put to the first plaintiff, when he was in the wit· 
ness box; nor was the eighth defendant summoned for examination by the first 
defendant to give him an opPortunity to explain the admissions. 
Dismissina the appeal, 
HEID : There is no doubt that if the depositions of the first plaintiff, the 
deposition by the eighth defendant and the written statement filed 
by these 
parties in the title suit were reliable. the plaintiff's case was damaged by their 
own admi.c;sion.'I. rt 26B1 
( 1) Although the first defendant•a basic defence was a denial of joint family 
o"'nership even in the trial court the admissions had been conside~ and actatl 
upon. Even in the High Court the appellants did not state that they had been 
prejudiced by the reliance on the admis.dons by the trial court nor did tho appel· 
lanu contend before the High Court of any prejudice by not being given an 
orportunity to explain the material again.st them. Neither in the memorandum 
of appeal appended to the application for a cenificate nor in the statement of 
the case jn this Cour1'.w:s a ground raised on this point. 
(1260-H] 
(2) It cannot be contended that because the disputed setatements had not 
been put to the first plaintiff when he was in the witness box or to the. eiJhth 
defendant they could not be used against him. 
[127AI 
There is a cardinal distinction between a party who ia the author of a prior 
statement and a witness who is examined and is sought to be discredited by use 
of his prior statement. In the former case an admission by a party is 1ubstan· 
tive evidence if it fulfils the requirement! of s. 21 of the Evidence Act; in the 
latter case a prior statement iS used to discredit the credibility of the witness and 
:Im-." not ~come substantive evidence. 
Jn the former there is no neeessary 
requirement of the statement containing the admission having to be put lo the 
party because it is evidence proprio \'igort; in the latter case the court cannot 
be invited to disbelieve a witness on the strength of a prior contradictory state· 
ment unless it has been put to him. as required bY s. 145 of the Evidence Act. 
[1178-C) 
Bharat Sif!gli <t ~nr. v. Bhagirathi, [1966] 1 S.C.R. 606, followed. 
OVIL APPELLATE JURISDICTION : Civil Appeal No. 1787 of 1967._ 
Appeal from the judgment and decree dated· January 31, 1963 of 
the Patn_a High Court in Appeal from Original Decree No. 77 of 
1958. 
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II 
BllWAMATH v. DWAIKA PRASAD (KriJlllna Iyer, J.) 
12 5 
M. B. Lal, for the appellants. 
Sarjoo Pra.•ad and S. N. Prasad, for respondents Nos. Z-7 & 14-IS. 
The Judgment of the Court was delivered by 
KRISHNA !YEil, J. 
The dispute is short, the points of law few, 
the evidence largely made up of admissions, anct so the 
judgment 
permits of brevity. 
A vignette of the facts is all that is therefore 
necessary. 
This appeal arises out of a suit for partition where the narrow 
area of confiict in this Court is continued to two items claimed by the 
plaintiffs but disallowed by the Iii&h Court. 
The first two of the 
three points formulated for determination by the High Court refiect 
the controversy raised before us and may be expected : 
1. Whether the said shop-room at the extreme north 
west corner of plot No. 1238 belongs exclusively to the 
defen

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