A recital of a relevant fact in a judgment, not inter partes, is not admissible in evidence under the Evidence Act, unless it falls within one of the exceptions provided in Sections 40 to 44 of the Act. A photograph print of the plaintiff and defendant 1, showing facial similarity or family likeness, is not admissible in evidence to prove that the plaintiff was the own sister of defendant 1, and, as such, the daughter of Sankeshia.

Raj Kishore Prasad, J.

1. This appeal, by the plaintiff, arising out of a partition suit, is from a judgment of reversal, by which the suit has been dismissed on the ground that the plaintiff was not the daughter of Dipraj Mahton, the admitted owner of the land in suit.

2. Dipraj Mahto died leaving behind his widow Sankeshia and defendant 1, their admitted daughter.

3. According to the plaintiff, Sankeshia had three daughters, namely, Turia, defendant 1, mother of defendants 2 and 3; Khedia, the plaintiff; and Dagni, the deceased mother of defendants 4 and 5.

4. According to the contesting defendants 1 to 3, however, the plaintiff was not the daughter of Sankeshia and defendant 1 was her only daughter. It was admitted however that Turia had also two daughters; and one of them was married to defendant 6.

5. The trial Judge accepted the plaintiffs case and decreed the suit; but, on appeal, his judgment was reversed and the suit was dismissed.

6. The finding of the Court of appeal below that the plaintiff was not the daughter of Sankeshia has been challenged by Mr. Gorakh Nath Singh, appearing for the appellant mainly on two grounds: First, that the admission of defendant 4, as mentioned in Ext. D, that Sankeshia had three daughters including the plaintiff should have been used against defendants 1 to 3; and, secondly, that the photograph (Ext.2) of defendant 1 and the plaintiff should also have been used for deciding whether the plaintiff was the sister of defendant 1. I will deal with these grounds of attack separately.

7. The first question, for determination therefore, is whether a recital of a relevant fact in a judgment, not inter partes, is admissible in evidence under the Evidence Act?

8. In order to decide this question, however it is necessary first to know the relevant facts. Sankeshia executed a zarpeshgi in favour of defendant 4, and, subsequently, another zarpeshgi in favour of defendant 6, a son-in-law of her admitted daughter, defendant 1. Defendant 6, therefore, as a subsequent mortgagee, brought a suit for re-demption of the earlier zarpeshgi against the prior mortgagee, present defendant 4", who is the admitted brother of defendant 5. To this suit neither the plaintiff not defendants 1 to 3 and 5 were parties. The pleadings of the parties of that suit have not been produced: but, its appellate judgment (Ext. D) is on the record. The judgment (Ext. D) contains an abstract of the pleadings of the parties, and, in paragraph 3 of the said judgment (Ext. D), an abstract of the case of the defendant, namely, present defendant 4, is stated. While summarising his defence, the learned Judge stated inter alia that;

"he (i. e. the then sole defendant and now the present defendant 4) also contended that Dipraj the husband of Sankeshia, had three daughters, namely, Dagni; Khedia (i. e. the present plaintiff); and, Turia (i. e. present defendant 1 ). . . . . . "

This judgment was filed by defendant 1; but the aforesaid statement of present "defendant 4 in the previous suit, as mentioned in the judgment (Ext. D), was sought to be used by the plaintiff in support of her case that Sankeshia had three daughters and the plaintiff was one of them. The sole object, therefore, for which the former judgment (Ext. D) was sought to be used by the plaintiff was to show that in another suit between present defendants 4 and 6 it was stated by defendant 4 that Sankeshia had three daughters including the plaintiff as alleged by her in the present litigation.

9. It has not been disputed, and it could not be, that the judgment (Ext. D) itself is not at all binding on defendants 1 to 3, because admittedly they were not parties to it. The crucial question, however, is, whether the above reproduced statement of present defendant 4 in his written statement in the previous suit, as stated in the judgment (Ext. D), is admissible, and, if it can be used as evidence in support of the plaintiffs case against the contesting defendants 1 to 3.

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