- (1.) THIS is an application by Th Madan Singh of Nawatearh, an unsuccessful respondent in the Civil Second Appeal No. 177 of St. 2004, Ram Singh and others Vs. Th. Madan Singh and others for a certificate under sec. 18 (2) of the Rajasthan High Court Ordinance for appeal to Division Bench.
(2.) I have heard the learned counsels for both the parties. The learned counsel for the applicant has argued that in as much as this Court held that there was no legal evidence to prove that the land in dispute belonged to the plaintiff respondent and that the admission in the written statement of Th. Jai Singh that the land in dispute was in the Pana of the plaintiff could not be binding upon the defendant appellants, it committed a grvae error of law. The appeal raises a question of general importance and consequently a certificate should be granted for appeal to Division Bench. The learned counsel for the opposite party has argued that it is a well established principle of law that when a finding of fact of the lower courts is based on no legal evidence, interference can be made in second appeal. The Court found that there was no legal evidence and it can not be said that this finding of the Court raised any qestion of importance. As regards the discarding of the admission by Th. Jai Singh in his written statement, it was argued that the Court was perfectly right in holding that the admission of Th. Jai Singh in his written statement in this suit did not furnish any legal evidence against the defendants, under the circumstances of the case. This finding also did not raise any question of importance. It was pressed that the words in sec 18 of the Rajasthan High Court Ordinance are "the case is certified to be a fit one for appeal". These very words find place in Clause (C) of sec. 109 of the Code of Civil Procedure and it has held by various High Courts that the mere existence of a substantial question of law is not sufficient for certifying the case to be a fit one for appeal under sec. 109. I have cosidered the arguments of the learned counsels for both the parties. I have held in my judgment that there was no legal evidence on the record to prove that the property in dispute belonged to the plaintiff. I have discussed the oral evidence to show that none of the witnesses for the plaintiff has stated that any partition between Th. Madan Singh and Th. Jai Singh took place in their presence and therefore, their evidence simply amounted to an opinion and not to a fact. I have also said that the property in dispute was said to be a path-way which was incapable of physical possession and therefore, there could be no satisfactory evidence about possession of the property by the plaintiff. The oral evidence produced by the plaintiff therefore, did not furnish direct evidence as to title to property in suit. Reliance was placed upon the admission of Th. Jai Singh, defendant, in his written statement wherein he has admitted that the property was in the Pana of the plaintiff. I have held that the mere admission of the co-defendant Th. Jai Singh could not be used as evidence against the other defendants and I have further said that no law was shown according to which the admission of the co-defendant, in the circumstances which obtained in the present case, could be read as evidence against the other defendants. It was argued on behalf of the applicant in the appeal that the admission was binding under sec. 18 of the Evidence Act. Sec. 18 says that the statements made by a party to the proceeding or by an agent to any such party whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions and that statements made by parties to suits, suing or sued in a representative character are not admissions unless they were made while the party making them held that character. It is further provided that the statements made by persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested or persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements. I do not see, how the provisions of this section help the applicant. Th. Jai Singh*s admission might bind his own-self, but it could not bind the other defendants. It was argued that other defendants derived their interests in the subject matter of the suit from Th. Jai Singh, because they were his tenants. The other defendants might be tenants or licensees of Th. Jai Singh in some other lands, but they do not admit that so far as the land in suit is concerned, they had derived their title from Th. Jai Singh. Moreover an admission made by a landlord after the tenancy has been created and after the controversy has arisen about the rights of the tenants can not be said to be an admission by a person from whom the tenants have derived their interest in the subject matter of the suit within the meaning of sec. 18. I do not think that any mistake in law has been committed in the judgment, but even if it be supposed that there is some mistake of law, every such mistake is not sufficient for the certificate of fitness for appeal to Division Bench, or for appeal under sec. 109. It was held in Baiasubramania and Co. vs. Penukonda Radhukrishnamurthy and others (A. I. R. 1949 Madras P. 741) that it is not every substantial question of law that can be treated as a question of public importance to justify the grant of a certificate under sec. 109 (c ). Where the decision in an appeal ultimately depends upon the peculiar facts of the case and not on any general legal considerations, the case cannot be certified as fit for appeal under sec. 109 (c ). In Asarfi Mander and others vs. Karu Mander and others (1934 Patna P. 466) it was held that "leave to appeal" should not be granted too lightly. The Judge must certify that the case is a fit one for appeal. A certificate should not be granted merely on the ground that a point of law arises in the case as might be the case in dealing with admissions of second appeals. The judgment appealed from should give an indication of any apprehension by the Judge that his view might be mistaken or that it was arrived at after some difficulty or that he felt that his view of the law might possibly require confirmation by a larger tribunal. In that case the application was made for a certificate under Patna Letters Patent Clause 10 for leave to appeal to Division Bench and the very words appear in Clause 10 which appear in sec. 18 of the Rajasthan High Court Ordinance. In Sadashiv Vishnu Sonar and others vs. Sakharam Baghu-nath Sonar (1932 Bombay P. 218) it was held that the principles for granting leave to appeal under Clause 15 are similar to those in sec. 109 (c), Civil Procedure Code. If therefore the development of law is to be on principles of co-ordination and , synthesis, similar principles must, with the necessary modifications be taken for guidance when the question arises for granting leave to appeal under either of these analogous provisions. An application made under Clause 15 will be refused unless the point in dispute is such that in the exercise of judicial discretion the Court can certify it to be of great public or private importance or unless there are involved questions of public importance or which may be precedents governing numerous other cases. To my mind no such question arises in the present case and therefore, I find myself unable to certify the case to be a fit one for appeal to Division Bench. The leave is refused. The opposite party shall get his costs from the applicant. . ;