This defendant's second appeal is directed against the judgment and decree dated 5.3.1983 passed by the learned Assistant District Judge No. 2 Cachar at Silchar whereby the defendant's appeal against the judgment and decree dated 6.8.75 passed by the learned Munsiff No. 2, Silchar was dismissed.

2. Briefly, the plaintiffs respondents had filed suit for declaration of right and title over the land in suit and for recovery of possession on the allegations that the plaintiffs had obtained settlement of the land and had been in its possession, but that later the defendant had tried to fish in a low lying and marshy part of the suit land. The plaintiff had protested and instituted a criminal case against the defendant. The plaintiff's title was clouded, hence the suit was filed. Subsequently it was alleged that the plaintiff had been dispossessed during the pendency of the suit and the plaint was amended for the relief of recovery of possession as well. The defendant resisted the suit and inter alia pleaded that since the date of settlement with the plaintiff, the defendant No. 2 had been in possession having had taken settlement as tenant of the land from the plaintiff and accordingly the plaintiff was not entitled to khas possession. The learned trial Court framed necessary issues and held that the defendants had not taken settlement of the land from the plaintiff and had no right in the land, that the plaintiff had been dispossessed during the pendency of the suit, the suit was not barred by limitation and that the suit was maintainable The suit was accordingly decreed for the relief claimed. In appeal the learned appellate Court below affirmed the findings of the learned trial Court and dismissed the appeal.

3. Aggrieved, the defendant has come in appeal and Shri B. K. Acharyya, learned counsel appearing on his behalf has submitted that the plaintiff had not established his title and the suit could not have been decreed. Shri Acharyya, has also submitted that admission was not conclusive and the learned Courts below were in error in taking the view that the defendant had accepted the plaintiff's right and title to the land in suit. Shri H N. Sarma, learned counsel for the plaintiff respondent supported the judgment of the learned Courts below and has submitted that the finding of the two Courts below on the question of fact that the defendant had no right of tenancy under the plaintiff on the land in suit was binding in this second appeal. Shri Sarma has accordingly submitted that this appeal has no merit.

4. I have considered the submissions for the parties and the judgments of the learned Courts below.

5. The plaintiff's case was that he had taken settlement of the land from the Government in the year 1951 and had been in its possession. The defendants appellants had admitted that the plaintiffs had taken settlement of the land, but had pleaded, that in turn he had taken settlement from the plaintiffs and was their tenant. In this state of pleading of the defendants, the plaintiff's right and title in the suit land having been admitted, what was required to be established was the defendants' plea that he had taken the land as tenant under the plaintiffs. Section 58 of the Indian Evidence Act clearly provides that no fact need be proved in any proceeding which the parties there to admit at the hearing or which before the hearing they agree to admit by any writing. In the present case the defendant in his -written statement had a mitted the fact that the plaintiffs had taken settlement of the land from the Government and as such there was no need to prove this fact.

6. Shri B. K. Acharyya, learned counsel for the appellant has submitted that admissions were not conclusive, which is true, but that principle does not apply to admission of fact in pleading in a suit. In the present case the admission of fact is in the written statement of the defendant and as such the above contention for the appellant is not tenable.

7. The next submis

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