JUDGMENT
S.S. Sudhalkar, J.
1. This appeal arises out of the judgment and decree passed by the learned Additional District Judge Karnal in Civil Appeal No. 68/13 of 1979 vide which he had modified the decree passed by the learned Sub Judge II Class, Kaithal. The appellants of this appeal are the original plaintiffs and the respondent is the defendant in the suit. In the first appeal, the respondent was the appellant and the present appellants were the respondents.
2. The case of the plaintiffs is that the agricultural land comprised in Rect. No. 3, Killas No. 9, 10, 11, 12, 13, 14 and 8, Rect. No. 3 Killa No. 24 and 23 East, Rect. No. 3, Killa No. 21 situated within the revenue estate of village Bodhni, Tehsil Guhla and vide a civil court decree, the plaintiffs are the owners in possession of the said land. There was a consolidation proceedings in the year 1957-58 and in that consolidation, the land mentioned above of the plaintiffs was included in the area of Gram Panchayat as the decree passed in their favour was not incorporated in the revenue record. The plaintiffs, therefore, preferred an appeal against the order of the consolidation officer and in that appeal the land mentioned above was excluded from the area of the Gram Panchayat and was included in Kurra of the plaintiffs and the plaintiffs are the owners in possession of the suit land. The plaintiffs have come to know that the defendant is going to auction the land mentioned above, though it has no right, title or interest to do so. The defendant actually tried to auction the suit land on 29.5.1977 but due to the timely intervention, the defendant was restrained from auctioning the land. The plaintiffs have filed the suit with a prayer that a decree for permanent injunction restraining the defendant from interfering with the peaceful and lawful possession of the plaintiffs over the land mentioned above or to lease out the said land by auction or in any manner.
3. The Gram Panchayat-defendant contested the suit. It is contended that the facts stated in the plaint are not correct. The Civil Court decree, if any, is void, collusive, fraudulent and not binding on the rights of the defendant. The Gram Panchayat Bodhni is the owner of the land in dispute and the possession of the plaintiffs was unauthorised. It is contended that the plaintiffs shall be evicted from the suit land in due course of law. Other contentions made in the plaint are also denied.
4. The trial court vide judgment dated 26.8.78 came to the conclusion that the plaintiffs are owners in possession of the suit land and that the impugned decree was not proved to be null and void; that the plaintiffs were not in unauthorised possession of the suit land and the suit of the plaintiffs was decreed ordering permanent injunction in favour of the plaintiffs.
5. In the first appeal, the learned Additional District Judge held that the trial Court erred in holding that the plaintiffs were owners of the suit land and the finding of the trial court to that extent was set aside. It was also held that the possession of the plaintiffs was not legal. However, it was ordered that the defendant will not interfere with the possession of the plaintiffs over the suit land by force and the defendant may take possession by due process of law.
6. In this appeal, I have heard Shri R.L. Sharma, learned counsel for the plaintiffs-appellants. Nobody has put in appearance on behalf of the defendant-respondent.
7. Shri Sharma, learned Advocate for the appellants has argued that the findings of the lower appellate Court are without any merit and are not proper and that the same should be set aside. He has drawn my attention to the certified copy of the order of consolidation officer, Karnal which was passed on 27.9.1974. The said order mentions clearly that the numbers of the suit lands are included in the lands of the plaintiffs-appellants. It also mentions certain other lands which were excluded from the names of the plaintiffs. The lower appellate Court, however, relied on admission made by the plaintiffs’ Advocate. The lower appellate Court held that the perusal of the judgment of the trial court shows that to hold the plaintiffs to be the owners, the trial court placed reliance on Ex. P1, an order passed by the Consolidation Officer dated 27.9.1974 and the trial court did not consider the statement of the plaintiffs’ counsel made by him on 22.5.1978. It further held that no oral evidence was led and the only documentary evidence was Ex. P1. It was also held that the plaintiffs’ counsel in his statement dated 22.5.1978 alleged that the Panchayat deh is the owner of the suit land and it was allotted to the plaintiffs as tenant by the consolidation authorities, and this admission of the plaintiffs’ counsel is clearly binding on the plaintiffs and this shows that the title does not vest in the plaintiffs. It was further held that when it was admitted by the plaintiffs, then trial court erred in holding the plaintiffs to be the owners of the land in suit. The lower appellate court further held that in the face of above admission, the defendant was not supposed to lead any evidence to prove the title qua the land in suit vests in him, and it held that the finding of the trial court about title of the suit land vests in the plaintiffs was incorrect and contrary to the admission of the plaintiffs’ counsel and the same was set aside, and it was held that the title in the suit land vests in Gram Panchayat.
8. Therefore, the following point arises for my determination, “whether the alleged admission of the plaintiffs’ counsel can be treated as sufficient evidence to counter the evidence led by the plaintiffs at Ex. P1.” I have heard learned counsel for the appellants on this point.
9. The order of the Consolidation Officer Ex. P1 is dated 27.9.1974. The alleged admission made by the plaintiffs’ counsel appears in the proceedings of the lower court. The alleged admission dated 22.5.1978 being short one is reproduced as under:
“Panchayat Deh is the owner of the suit land. It has been allotted to the plaintiffs as tenants by the consolidation authorities. I tender into evidence copy of order Ex. P1 and close my evidence in affirmative.”
The writing appears to have been made by the Judicial Officer who has signed it and the signature of the counsel who has made the above statement is on the left side of the signature of the learned Sub Judge. It may be the signature of the plaintiffs’ counsel. However, such a writing cannot be said to be an admission of the plaintiffs’ counsel. Moreover, when it is a clear case of the plaintiffs that they were the owners of the land in suit, it cannot be accepted that the plaintiffs’ counsel would admit the ownership of the Gram Panchayat treating the plaintiffs as tenants. More so, there was no need for the plaintiffs’ counsel to do so in view of Ex. P1. There is no endorsement made by the plaintiffs’ counsel except the signatures below the proceedings dated 22.5.1978. Therefore, this cannot be treated as an admission because it will be absurd to accept that the counsel would make such an admission in the proceedings which is totally contrary to the case which his clients are putting up. Moreover, even if it is treated as an admission, it cannot be said to be conclusive. It has been held in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., A.I.R. 1960 S.C. 100 that admissions are the best evidence though not conclusive. When this is so, the admissions can be disproved also.
10. Moreover, no evidence has been led on behalf of the Gram Panchayat to show that it was the owner of the suit land, even though when Ex.Pl was produced by the plaintiffs. Merely because of the alleged admission of the plaintiffs’ counsel made on 22.5.1978, the Gram Panchayat who was the defendant in the suit and had an opportunity to lead evidence, has not lead any evidence, documentary or oral to show that it was the owner of the suit land. It is difficult to under stand how the Gram Panchayat will not be in a position to possess any evidence regarding ownership and when a person having the best evidence has not produced the same, adverse inference can be drawn against the said party. This view is supported by the judgment in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., A.I.R. 1968 S.C. 1413.
11. Moreover, Ex. P1 also relies on decree of the Civil Court. It is not shown as to how the same is collusive, though it was pleaded by the defendant that it was collusive. In view of the above facts, the said alleged admission cannot be made basis for determining the rights of the parties and, therefore, the above point has to be decided in the negative.
12. In the result, the judgment and decree of the lower appellate court deserves to be set aside and that of the trial court deserves to be upheld. Hence the appeal succeeds and the judgment and decree of the lower appellate Court is set aside and that of the trial court is upheld. The respondent shall pay the costs to the appellants throughout and bear its own.