Decided on December 22,1960

NARENDRA Appellant
GYARSA Respondents


- (1.)This second appeal has been filed by the unsuccessful plaintiff whose suit for ejectment was decreed by the trial court, the first appellate court rejecting the same in appeal on 22.1.60.
(2.)We have heard the parties. As the lower courts came to differing conclusions we have gone through the evidence as well as the law laid down in sec. 224(2)(iv) R. T. Act. The claim of the appellant was resisted by the respondent with the plea that he was the tenant of the disputed land. This tenancy was not denied by the appellant. His version, however, was that the respondent had voluntarily surrendered the holding, that thereafter the appellant cultivated the land himself and that on 23.7.58 the respondent took over wrongful possession. Obviously the fate of the case hinges on the question of surrender. The lower appellate court has given cogent grounds for not believing the plea of surrender. We find ourselves in agreement with the reasoning advanced by the lower court. The appellant had in para No. 3 of the plaint alleged that the respondent surrendered the holding four years ago. This would mean 1954 A. D. As the Rajasthan Tenancy Act was not in operation then the Revenue Code of the former Karauli State was obviously in force. According to the provisions of that Code contained in sec. 6, Chapter IX, a surrender could have been valid only with the prior sanction of the Deputy Collector and that too in accordance with the procedure given in that Chapter. No such procedure was ever followed in this case.
(3.)During the course of the arguments it was stated before us that the surrender should be deemed to have taken place some time in 1956. This plea has been advanced on the basis of a certified copy of a statement of the respondent dated 22 -12 -57 in a matter relating to settlement operations. The learned counsel for the appellant argued that this statement should be deemed to be an admission of the respondent and as such should have been acted upon without any formal proof. This view is clearly untenable. A previous statement can be used for purposes of contradiction only as laid down in sec.T45 of the Indian Evidence Act. It is clearly laid down therein that before a statement can be used for this purpose the attention of the witness must be called to those parts of it which are to be used for the purpose of contradicting him. In this case the respondent was examined on 20.7.59 and during the course of the cross objection he admitted that he was examined previously in the Settlement Department. The cross examination ended at that point. The points of the previous statement with which contradiction was intended were never put to him and hence the previous statement cannot be used for purposes of contradiction. Even if this legal position was otherwise it would hardly be of any avail for the appellant. The respondent had in this statement at one place clearly stated that he was forcibly dispossessed from the land. At another place he said that cash rents were substituted by produce rents and hence he gave up the land". In either case this would not amount to a valuntary surrender. For these reasons, therefore, we hold that the learned Addl. Commissioner came to a correct conclusion in the case. The appeal is hereby rejected.

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