Former testimony and service land transfer rules: prior evidence admissible, post-commencement alienations invalid without Collector permission

Former testimony is admissible under Section 33 of the Indian Evidence Act when the witness is unavailable, the earlier proceeding involved the same parties or their representatives in interest, cross-examination was available, and the issues were substantially the same; the deceased witness's prior statement was therefore treated as admissible. Section 165(7)(b) of the Chhattisgarh Land Revenue Code was applied to later sale deeds of service land, so prior Collector permission was required for post-commencement transfers and its absence rendered the alienations invalid. A later suit was not barred by res judicata where the earlier decree did not decide the plaintiff's asserted title as adopted son, and the claim arose only after the relevant death.

---

---

Issues: (i) Whether the earlier statement of a deceased witness from the prior suit was admissible in the present suit under Section 33 of the Indian Evidence Act, 1872; (ii) Whether the restriction on transfer of service land under Section 165(7)(b) of the Chhattisgarh Land Revenue Code, 1959 applied to the sale deeds executed in 2001; (iii) Whether the present suit was barred by res judicata on account of the earlier decree.

Issue (i): Whether the earlier statement of a deceased witness from the prior suit was admissible in the present suit under Section 33 of the Indian Evidence Act, 1872.

Analysis: Section 33 makes former testimony relevant where the witness is unavailable and the earlier proceeding was between the same parties or their representatives in interest, the adverse party had the right and opportunity of cross-examination, and the questions in issue were substantially the same. The plaintiff in the later suit was held to represent the estate and interest of the earlier party, the same property was in dispute, and the issues relating to title were substantially identical.

Conclusion: The prior statement was admissible under Section 33.

Issue (ii): Whether the restriction on transfer of service land under Section 165(7)(b) of the Chhattisgarh Land Revenue Code, 1959 applied to the sale deeds executed in 2001.

Analysis: The provision was treated as procedural in nature and not as creating a new substantive right. Since the sale deeds were executed after the provision had come into force, prior permission of the Collector was required for alienation of the land, and the absence of such permission rendered the transfers illegal.

Conclusion: The provision applied and the sale deeds were invalid for want of Collector's permission.

Issue (iii): Whether the present suit was barred by res judicata on account of the earlier decree.

Analysis: The earlier suit did not frame or decide any issue regarding the present plaintiff's title as adopted son. The plaintiff's claimed right accrued only after the death of Chhaya, and the present suit was instituted thereafter. The earlier adjudication therefore did not operate as a bar.

Conclusion: The suit was not barred by res judicata.

Final Conclusion: No substantial question of law arose in second appeal, and the concurrent findings sustaining the plaintiff's title and possession were left undisturbed.

Ratio Decidendi: Former testimony is admissible against a representative in interest where the earlier and later proceedings concern the same subject matter and substantially the same issue, and a procedural statutory restriction on transfer operates upon alienations made after its commencement.

---