JUDGMENT MAULVI ANWARUL HAQ, J.~ This R.S.A, calls in question the 'Judgment dated 20.11.1978 of learned District Judge, Jhang, whereby he dismissed the appellant's appeal against the judgment and decree dated 16.7.1978 of a learned Civil Judge, Jhang. It will be necessary to state the facts of this case in some detail. The suit house was owned by one Allah Ditta. After his demise a suit was filed on 21.10.1972 for separate possession by partition of 19/24 shares in the said house by the following persons:-
(i) Tufail Muhammad son of Allah Ditta.
(ii) Mukhtar Muhammad son of Allah Ditta.
(i.e) Mst. Karim Bibi widow of Allah Ditta.
(iv) Mst. Taley Bibi daughter of Allah Ditta.
2. This suit was filed against the present appellants Nos. 1 and 2. On 30.1.1973, appellants Nos. 1 and 2 filed a written statement wherein the plea taken by them was that there was an agreement between the parties that the plaintiffs shall pay Rs. 10 per month as rent to the said applicants and that the partition will remain postponed till such time that appellant No. 2 attains majority. The grievance made was that on the one had the suit for partition has been filed and on the other had the payment of rent has also been stopped. It appears that Mst. Karim Bibi died during pendency of the suit and a amended plaint was filed after deleting her name from the array of the plaintiffs. The shares were corrected as 127/168, instead of 19/24. This was done obviously as share of Mst. Karim Bibi had devolved on the parties. The written statement referred to above was filed after the filing of the said amended plaint. On 4.10.1974 Mukhtar Muhammad filed an application containing a very strange plea that he has come to know that Tufail Muhammad plaintiff No. 1 is not his brother but was the son of one Muhammad Bakhsh who was married to Mst. Karim Bibi at one time and after the death of said Muhammad Bakhsh she married Allah Ditta. This application was rejected on 4.1.1975 by the learned Senior Civil Judge and correctly as Order 23, rule 1 "prohibits a plaintiff to withdraw from the suit without the consent of the other plaintiff". It further appears that on 10.12.1974, which is not a date of hearing according to the order sheet of the Trial Court perused by me, another amended plaint was inserted on the i.e of the suit wherein Tufail Muhammad and Tahlay Bibi were shown as plaintiffs and Mukhtar Muhammad was described as defendant No. 3.
This amended plaint is neither signed nor verified by any of the plaintiffs. It also appears from the i.e that on 21.2.1974 the learned Civil Judge, framed as many as 6 issues on the basis of pleadings on record till that date. Be that as it may, a written statement was called for and I find that one written statement was filed on 4.2.1975 by the appellants Nos. 1 and 2 and one written statement was filed by Mukhtar Muhammad on 29.1.1975. In these written statements, it was stated that Tufail Muhammad is not son of Allah Ditta hut is son of Muhammad Bakhsh. Following issues were framed on 4.2.1975 by the learned Civil Judge:-
(1) Whether the plaintiffs lack loscus standi to bring the present suit?
(2) Whether the suit has been correctly valued for purposes of Court and jurisdiction? If not, what is the correct valuation?
(3) Whether the pedigree-table given in para 3 of the plaint is correct and the plaintiffs are owners of the suit property to the extent of 3/7th share?
(4) Relief.
3. Evidence of the parties was recorded and the suit was dismissed on 16.7.1978.. The appeal tiled by the appellants was dismissed on 20.11.1978. Mr. Muhammad Aslam Sindhu, Advocate, appeared for the appellant and argued with reference to C.M. No. 3282-C of 1979 (Application under Order 41, Rule 27, CPC seeking permission to lead additional evidence) that Tufail Muhammad described himself as son of Muhammad Bakhsh in registered sale-deed dated 11.7.1963 whereby he sold a shop to Ghulam Muhammad and Mukhtar Muhammad. He also refers to some documents filed with the settlement authorities, wherein Tufail Muhammad's parentage mentioned as Muhammad Bakhsh. Out of this document Tufail Muhammad was confronted in the course of trial only with the copy of the registered sale-deed dated 11.7.1963. There is no explanation as to why the other documents were not produced in the course of trial or for that matter during the pendency of the first appeal. I am, therefore, not inclined to grant permission to the appellants to lead additional evidence at this stage. Even if I were to take the said documents into consideration, same fall into in significance in view of the plethora of evidence on record providing that Tufail Muhammad was the son of Allah Ditta. No need to and that civil matters are decided on the basis of preponderance of evidence.
4. To begin with, I must observe that serious irregularities were committed during the course of trial of the suit. I have not been able to find from the record neither the learned counsel had rendered any assistance as to how third amended plaint came to be tiled on the record when an application of Mukhtar Muhammad for withdrawing from the suit had been.Dismissed by the learned Civil Judge. I have also noted with concern that number of written statements found their way into the record, containing a plea for which no permission exists on record in the form of duly applied for amendment in the pleading. Even if the amendment had been applied for the same could not have been allowed as it is settled law that admissions made in the course of pleadings is not allowed to be withdrawn by way of amendment. I have already stated peculiar circumstances of this case in detail. The appellants Nos. 1 and 2 did not at all question the parentage of Tufail Muhammad in their written statement tiled on 30.1.1973. Not only this, but I find that along with the written statement the appellants Nos. 1 and 2 filed a list of legal representative (under Order 8, Rule 13, CPC) wherein Tufail Muhammad and Mukhtar Muhammad are described as real paternal uncles of the minor defendant.
5. The grievance raised by the appellants Nos. 1 and 2 in the written statement has already been stated above. So far as Mukhtar Muhammad is concerned he joined respondent No. 1 in the plaint.
He signed and verified the plaint which contains the allegation that Tufail Muhammad, Mukhtar Muhammad and Tahlay Bibi are children of Allah Ditta. I am shocked, that in view of the said pleadings, the appellants were allowed to claim an issue as to the parentage of Tufail Muhammad and to lead evidence on the issue. I have already stated above that even if a proper amendment petition had been filed neither Mukhtar Muhammad nor appellants Nos. 1 and 2 could be allowed by the Court to withdrawn the admission contained in their respective pleadings. I rely on the case of Ahmad Khan Vs. Rasul Shah and others (PLD 1975 SC 311), wherein Mr. Justice Muhammad Gull (as his Lordship then was) observed at page 317 of the reported judgment:-- "Therefore, an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. This is however, subject to two well- recognized exceptions-second: apart from the representation which operates as estoppel, admission impleading are also made conclusive under Section 58 of the Evidence Act, 1872."
The case of Secretary to Government (West Pakistan) now N.W.F.P. Department of Agriculture and Forests, Peshawar am1 4 others Vs. Kazi Abdul Kajil (PLD 1978 SC 242) can also be referred with advantage wherein, their Lordship upheld refusal by Courts below to allow an amendment which had the effect of withdrawing an admission made in the pleading. It was also observed that:- "Admissions made in a written statement have altogether different legal significance than admissions generally."
6. So far as evidence on record is concerned it has been dealt with in sufficient detail in the judgments of the Courts below particularly by the learned District Judge, who has referred to the evidence piece by piece. No case of misreading or non-reading of evidence is made out.
7. This civil revision is, therefore, dismissed. As the respondents have not turned up. I leave the parties to bear their on costs.
8. The record be immediately sent back to the learned District Judge, Jhang for entrustment to the Court of any competent Civil Judge for proceeding further in the matter and to dispose of the same within four months.