Dave, J. - (1.) THIS is a second appeal by the plaintiff against the judgment and decree of the Additional District Judge, Alwar, dated the 12th April 1949 reversing the decree of the Munsif, Rajgarh, dated the 30th Nov. I948 decreeing the plaintiff's suit.
(2.) THE main question involved in this appeal is whether a conn summoning a record of another suit between the parties under Order 13, Rule 10 of the Civil Procedure Code can use any document from the latter record without putting it to the party against which it is to be used or without getting it proved formally. The facts giving rise to the above question are that the plaintiff-appellant filed a suit for possession of a land situated in the village Achalpri in the court of the Munsif at Rajgarh. It was averred by the plaintiff that the defendant-respondent had taken unlawful possession of the disputed land on the 15th of July 1942. The defendant pleaded that it was his ancestral property and that it was in his ancestor's possession for a long time The trial court found that from the plaintiff's own admission the disputed land was proved to be in the possession of the defendant from the 12th Feb. , 1935 and not from the 15th July 1942. It was however held by that court that the defendant's possession was not adverse and, therefore, the suit was not barred. On appeal by the defendant the Additional Dist. Judge, Alwar, came to the conclusion that as the defendant was found to be in possession of the property since the 15th of Feb. 1935, article 142 of the Indian Limitation Act was applicable in the present case and the plaintiff's suit was time-barred. The appellant's counsel contends that the defendant had produced no evidence in the trial court to prove that he had got possession of the disputed property from the 15th Feb. 1935. It was pointed out that after both the parties had finished their evidence the trial court summoned the record of a previous case between the parties and on the basis of a plaint, which, in its opinion, was filed by the plaintiff-appellant in that case, the learned trial Judge came to the conclusion that the plaintiff had admitted the defendant's possession from the 15th Feb. 1935. The appellant's counsel contends that the trial court could summon the record of the previous suit between the parties but it could not use this document on the back of the plaintiff to his dis-advantage. This argument is found to be correct. The relevant portions of order 13 Rule 10 C. P. C. are as follows: - (1) The court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other court, the record of any other suit or proceeding, and inspect the same. X X X X (3) Nothing contained in this rule shall be deemed to enable the court to use in evidence any document which under the law of evidence would be inadmissible in the suit. " According to Sub-rule (1) the court has got the authority to send for the record of any other suit or proceeding and inspect the same, but Sub-rule (3) makes it quite clear that it has no authority to use in evidence any document which under the law of evidence would be inadmissible in the suit. It was held in A. I. R. 1943 Oudh 54 that it is not permissible to raise any presumption of genuineness in respect of the plaint, which is only a private document, and that must be proved by direct evidence. In A. J. R. 1930 Lah. 714 it was observed by Shadilal C. J. and concurred by another Judge of the High Court that admissions cannot be used against a party unless they are put to him and an opportunity is afforded to him to explain them if they are capable of explanation. I respectfully agree with the views expressed in the above decisions and it was incumbent upon the trial court to put the said plaint to the plaintiff and ask him in the first instance whether he admitted it. Then the portion which was sought to be used against him should also have been pointed out and he should have been asked if he had any explanation to offer about it. As long back as in A. I. R. 1927 Lah. 69, it was observed by Dalip Singh J. that the mere sending of a record under O. 13, Rule 10 C. P. C. does not bring it in evidence. The same view was expressed by Bhide J. in A. I. R. 1929 Lah. 78 and by a Division Bench consisting of Coldstream and Tekchand, JJ. in A. I. R. 1931 Lah. 119. Relying on these decisions, the Oudh Chief Court also took the same view in A. I. R. 1941 Oudh 134. The learned advocate for the respondent has himself conceded that trial court ought to have taken proper proceedings to get this docu-ment proved according to law before bringing it on record and using it against the appellant. It appears from the record that the parties have produced oral evidence also on this point. The trial court has in its judgment referred to the statement of witnesses but it has not given any expression about its own opinion about them. The appellate court does not seem to have gone through that evidence at all nor has it tried to touch other issues. The advocates for both the parties agree that the case should be remanded to the first appellate court. The respondent's advocate prays that the first appellate court should be directed to give a chance to both the parties to bring their evidence if they so desire regarding the said document i. e. , the plaint in the previous case between the parties. The appellants advocate, on the other hand, says that it should be altogether excluded from evidence and the first appellate court should simply rehear the parties and decide the case on the remaining evidence. I think that the contention of the appellant's advocate in this connection is not reasonable. Both the courts have considered this document to be an important piece of evidence. Apparently there is no inherent defect about its inadmissibility in evidence. All that is required is a formal proof to enable it to be brought on record. It does not seem proper to neglect this documentary evidence to which so much importance has been attached by the courts below, simply because of the lack of formality. The appeal is allowed and the order of the first appellate court is set aside. The file be remanded to the Dist. Judge, Alwar, with the direction that after giving an opportunity to both the parties to prove and rebut this document and after hearing them again the case should be decided afresh. . ;