JUDGMENT

S.N. Katju, J. - This is a plaintiff's appeal arising out of a suit for declaration that he is a co-bhumidhar and co-sirdar of the plots mentioned in the plaint. It was alleged that the plots in dispute belonged to Gauji and after his death they were inherited by his two sons the plaintiff Jaggu and the first defendant Basantu and both of them were co-bhumidhars and co-sirdars of the plot in dispute. Smt. Sudhni was the wife of Gauji. It was contended on behalf of the first defendant that Jaggu was not the son of Gauji. Sudhni had married one Nepal and Jaggu was his son, and after the death of Nepal, Sudhni had contracted a second marriage with Gauji and Basantu was the son of Gauji. The first defendant, therefore, contested the Jaggu had no interest whatsoever in the plots in dispute and was not entitled to the reliefs claimed by him. The trial court decreed the plaintiffs suit. The first defendant had relied on a statement made by Smt. Sudhni in an earlier suit instituted under Sec. 59 of the U.P. Tenancy Act in which she had stated that she was first married to one Nepal and Jaggu was born of that union and after the death of Nepal she had married Gauji and Basantu was born after her marriage with Gauji. Admittedly the revenue court in which the aforesaid suit had been instituted had returned the plaint for presentation to the proper court. The trial court expressed the view that the aforesaid statement of Sudhni was not admissible in evidence under Sec. 32(5) of the Evidence Act because the statement was made after the question in dispute between the parties had been raised. The trial court did not consider the admissibility of the statement under Sec. 33 of the Evidence Act. It considered the oral and documentary evidence on the record and held that Jaggu was the son of Gauji and was entitled to the reliefs claimed by him. On appeal the lower appellate court set aside the decree of the trial court and dismissed the suit. It expressed the view that the statement of Sudhni before the revenue court was admissible. It further expressed the view that the documents relied on by the plaintiff did not support the case and placing reliance on the aforesaid statement of Sudhni dismissed the plaintiffs suit. It was contended by the learned counsel for the plaintiff appellant that the statement of Sudhni as not admissible under Sec. 32(5) of the Evidence Act because it had been made before the revenue court after the dispute between Jaggu and Basantu had arisen. The question raised before the revenue court was the same which was subsequently raised in the suit in appeal before me. Evidently the statement of Sudhni would not be admissible under Sec. 32(5) of the Act because it had been made after the dispute between the parties had arisen. Learned counsel further contended that the statement would not be admissible under Sec. 33 of the Evidence Act because the statement of Sudhni was not made in a judicial proceedings, since the court in which it had been made, had no jurisdiction to entertain the suit. It was contended that proceedings before a court which has no jurisdiction would not amount to judicial proceeding within the meaning of Sec. 33 of the Evidence Act. Consequently the statement of Sudhni would not be admissible in evidence in the present suit. Learned counsel relied on Bimaraz v. Panaya, ILR III Mad. 48, Sankappa Rai v. Koraga Pujary, ILR 54 Mad. 561, Hardasmal Kubchand Kernalani v. Jagan Nath Jauhrimal, ILR 7 Lahore 582, Sudhindra Nath v. State, AIR 1953 Calcutta 339. In Sankappa Rai v. Koraga Pujary, ILR 54 Mad. 561, it was observed that:

"a proceeding before a Judge or Magistrate who has no jurisdiction is not a judicial proceeding and the evidence of a witness given in such a proceeding cannot be used under Sec. 33 of the Evidence Act on a retrial before a competent court, the particular kind of jurisdiction involved in that case being territorial. For an expression of the general proposition that if a Court