An admission by a party is not conclusive proof of the facts admitted and is not binding if found to be erroneous or if duly explained.

JUDGMENT :

D.M. Patnaik, J. - The substantial question of law in this appeal is whether the Courts below by their concurrent findings committed an error in holding that the Civil Court's jurisdiction was barred under the provisions of Section 67 of the Orissa Land Reforms Act.

Facts :

The plaintiffs mortgaged the suit land with the defendant for Rs. 800/-on 19-11-1969 and delivered possession of the land bearing Khata No. 1354 and Plot No. 164, measuring an area of 70 decimals in village Satapentha. Though the plaintiffs repaid the entire amount within a year, the defendant did not give back the possession of the land but continued to possess the same. A dispute having ensued between the parties, a proceeding u/s 145, Cr PC was instituted in which the final order went in favour of the defendant, holding that he was in actual possession of the land. Thereafter the plaintiffs filed the suit for possession and mesne profits, without seeking any declaration.

The defendant in his written statement pleaded that as the said unufructuary mortgage stood automatically redeemed by virtue of the provisions of the Orissa Money-Lenders Act after expiry of a period of seven years, i. e. in the year 1976, by an oral agreement between the two, the defendant continued in possassion of the land as a Bhagchasi and paid Rajbhag to the plaintiffs regularly. This was so agreed since the plaintiffs had to repay sum of Rs. 300/- to the defendant. It was further pleaded that the plaintiffs had promised to pay Rs. 300/- by 1980 but did not do so. The defendant demanded the said sum in 1981 and there was some misunderstanding between the parties which resulted in filing of the suit, as alleged by the defendant. The defendant also pleaded in paragraph 8 of the written statement that the suit was barred under the provisions of Section 57 of the Orissa Land Reforms Act.

2. The Courts below considering the defendant's plea of tenancy and his evidence with regard to tenancy and more specifically basing on the admission of the plaintiff No. 1 in his evidence that he (the plaintiff) was the landlord and the defendant was the tenant, held that there was subsisting relationship of landlord and tenant between the two and, therefore, both held that the Civil Court's jurisdiction was barred u/s 67 of the Orissa Land Reforms Act, there be dismissing the plaintiffs' suit.

3. Mr. B. B. Ratho, learned counsel for the respondent No. 1 with reference to the cases, namely, The State of U.P. Vs. Ram Chandra Trivedi, and Most. Sukhia and Another Vs. Took Narain Whish Wakarma and Others, strenuously urged that the concurrent findings of fact recorded by the Courts below cannot be interfered with by this Court even if such findings are found to be totally erroneus.

There is no quarrel over the proposition so advanced by Mr. Ratho, but law is also well-settled that even concurrent findings of facts by the Courts below can be interfered with provided such findings are based on no evidence or even inadequate evidence which leads the Court to come to a conclusion that the party has not been able to prove his case with that insufficient evidence.

Secondly, the Courts below have based the finding about the tenancy in favour of the defendant mainly on the admission of the plaintiff No. 1 in his evidence. Therefore, substantial question of law for decision of this Court is whether on a mere admission by the party, the Court can come to a conclusion that there has been a relationship of landlord and tenant without any other material on record. For the above two reasons, I am unable to accept the submission of Mr. Ratho that this Court would not be justified in interfering with the findings so recorded by the Courts below.

I would like to first take up the question of the admission in question of the plaintiff No. 1.

4. It is nowhere in the pleadings of the plaintiffs that they had inducted the defendant as a tenant with a view to create an agricultural tenancy in his favour. The mere assertion i