An admission made in a plaint is binding on the plaintiff in a subsequent suit, unless it is rebutted.

( 1 ) IS the admission in the plaint of a suit, permitted to be withdrawn with liberty to sue afresh of any effect, in the suit instituted afterwards, in pursuance of the liberty so given? That is the principal point raised upon this appeal by the plaintiff from an appellate judgment and decree of affirmance

( 2 ) THE stance the plaintiff takes is: Plot No 208, admeasuring, 84 acres, under Khatian no 208, of mouja Bara, within the jurisdiction of Nalhati police-station, in the district of Birbhum, appertains to a Jama of Rs. 16-13as. 10 pies, under the landlord Maharaj Bahadur Singh. As the result of a partition amongst the co-sharers, it falls to the exclusive share of Hi at Sk. Seized of the plot so, Ijjat Sk. executes a heba-bil-ewaj, exhibit 1, for just that in favour of his nephew Esvan Sk. The date of a document as this is Baisakh 3, 1344 B. S. , corresponding to April 16, 1937. Ever since, Esban Sk has been in possession thereof; and, after his death his son, Seraj, the plaintiff in the suit out of which this appeal arises.

( 3 ) THE stance the defendants take is: Their predecessor in interest, one Ekram Hossain, took settlement of the land in controversy from the landlord Debaprasanna Mukherji in whose khas possession it then was So he did on payment of Nazar of Rs 160 and at a iama of Rs. 6, for which he was granted a receipt, exhibit A, on Jaistha 29, 1350 B. S. , corresponding to a date in mid-June 1943.

( 4 ) IN the plaint, exhibit C, of a previous suit Title Suit No. 153 of 1945, by the present appellant's father, Esban Sk, against Ijjat Sk. and Ekram Hossain as the principal defendants, as also Debaprasanna Mukherji, Maharaj Bahadur Singh and the recorded tenants as pro forma defendants, the admission made by him (Esbatl is, to notice only the gist of it:1 Plot No 208 does not appertain to the jama of Rs. 16-13as.-10 Pies. 2 It was all along in possession of Debaprasanna Mukherji and his predecessors for lone over twelve years.

( 5 ) WHAT remains then of the plaintiff's case founded on the land appertaining to the jama of Rs 16-13as.-10 pies under Maharaj Bahadur Singh? Little or nothing. And the defendants' case rested on settlement from Debaprasanna Mukherji ie well-high proved if the admission stands, The learned judges in the courts below hold that the admission, not rebutted in the second suit (out of which this appeal arises), does stand. So they dismiss the suit Hence this appeal

( 6 ) MR. Lala Hemanta Kumar, appearing for the appellant contends that the admission cannot stand It cannot, because the suit the plaint of which contains such admission having been withdrawn, the admission stands withdrawn too. Mr. Ghose, appearing for the respondents, contends that the statement in the plaint remains, capable of boine pressed into service in a subsequent suit (as the present one is), no matter that the prior suit has been withdrawn.

( 7 ) AN admission is not conclusive even of a matter admitted: Section 31, Evidence Act 1 of 1872 The maker of an admission is at liberty to prove that it was made under a mistake Here, in the second suit, the plaintiff makes no attempt even, to prove so. As the learned appellate judge observes: ''before the learned Munsiff, the plaintiff gave no evidence regarding this admission by Esban in Title Suit No. 133 of 1945. " more in the application dated November 19, 1945 exhibit 6, for withdrawal of the suit it has not been stated that this part of the averments in the plaint is a mistaken one It has been stated instead that in hurry some necessary parties have been left out, for which a suit afresh has become necessary after having impleaded them. Again, it appears to be worthy of note that the plaintiff takes time to produce the certified copy of the order in Title Suit No. 153 of 1945 (referred to as "judgment of T. S. 153/ 45"): vide order No. 23 dated March 13. 1957, in the order sheet. But ultimately he does not produce it. It is produced instead by th