[1] This is an appeal on behalf of the plaintiff in a suit for recovery of possession of a sixth share of 5 collars of land. The plaintiff alleges that the subject-matter of dispute belonged to one Prandhone Chakrabutty who had three sons, Mirtunjoy, Bholanath and Tarak Nath. According to the plaintiff, the property was inherited by all the three sons in equal shares; after the death of Mirtunjoy in 1853, his share passed to his widow Monmohini and upon the death of the latter on the 22nd July 1892, it vested in equal halves in her daughters, the plaintiff and her sister Bhabakali, the 4th defendant in the suit. The first two defendants, the sons of Tarak Nath, practically support the story of the plaintiff, though they plead limitation and deny her title. The third defendant, the daughter of Bholanath, is the real contestant. She pleads limitation and sets up an exclusive title on the allegation that her father had acquired title to the property by virtue of a gift from his mother who was the real owner. The substantial question in controversy between the parties, therefore, was, whether the disputed properly belonged to Prandhone Chakrabutty or to his wife, and if to the latter, whether she had made a gift thereof in favour of her son Bholanath. The original Court found that the property belonged to Prandhone and made a decree in favour of the plaintiff. Upon appeal, the learned District Judge has reversed this decision and dismissed the suit.

[2] The plaintiff has now appealed to this Court, and on her behalf the decision of the District Judge has been challenged upon two grounds, namely, first, that the District Judge was in error when he held that the plaintiff unconditionally withdrew the suit in the Court of first instance on the 13th June 1906, and, secondly, that the decision of the District Judge is based upon evidence which is not admissible in law and had been rightly rejected by the original Court. These positions have been controverter by the defendant and it has further been argued that there is an independent finding by the District Judge upon the question of limitation sufficient to justify the dismissal of the suit.

[3] In so far as the first of the grounds urged by the appellant is concerned, it must clearly succeed. On the 13th June 1906, the plain tiff made an unconditional petition to with draw her suit. She subsequently changed her mind and before any order of withdrawal was made, prayed to be permitted to re-call her petition and to proceed with the suit. The Court allowed her to do so. On this it has been argued that it was not competent to the Court to make this order and that her original petition was conclusive. In our opinion, this contention is not well-founded, and it was competent to the plaintiff to re-call her petition of withdrawal at any time before the final order had been passed. The view we take is supported by the case of Ram Bhuros Lall v. Gopee Beebee 6 A.I.R.

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6. The case of Shumsher Bahadur v. Mahomed Ali 2 Agra H.C.R. 158, if it really lays down the contrary rule, cannot be supported on principle. We may add that the observations in Mahant Biharidasjz v. Parshotam Das 32 B. 345 : 10 Bom. L.R. 293, upon which reliance was placed by the respondent, have no direct baring upon the question raised before us. The first ground urged on behalf of the appellant must consequently prevail.

[4] The second ground on which the judgment of the District Judge is assailed raises a question of law of some nicety. It appears that in 1839, Tarak Nath, the father of the first two defendants, sued Bholanath for possession of 1/3rd share of the disputed property. Mon Mohini, the widow of Mirtunjoy, was added as a pro forma defendant. She had no interest in the subject-matter of the litigation which was the 1/3rd share claimed by Tarak Natli. But she supported the theory of Tarak Natli that the property belonged to his father and not to his mother. In the course of this litigation Tarak Nath was examined as a witness on behalf of Bholanath and Kalitara, the sister of Tarak Nath and Bholanath, was examined as a witness on behalf of Tarak Nath. That litigation terminated in favour of Bhola nath. But it has not been argued in this Court, though an ineffectual attempt was made in the Courts below, that the decision in that case operates as res judicata between the present plaintiff and the third defendant, To put the matter briefly, there was not any conflict of interest between the then defendants, Mon Mohini and Bholanath. Consequently, as ruled in the cases of Cottingham v. Earl of Shreudsbury (1843) 3 Hare 627 : 15 L.J. Ch. 441, Ram Chandra v. Narayan 11 B. 216; Magniram v. Mehdi Hosein 31 C. 95, 8 C.W.N. 30, Gurdco v. Chandrihah 5 C.L.J. 611 : 36 C. 193 : 1 Iad. Cas. 913 and Chnrphekni v. Purmeshar 5 C.L.J. 853, as there was no judgment de-fining the real rights and obligations of the defendants inter se, the principle of res judicata could have no application. But the third defendant seeks to use in evidence the depositions of Tarak Nath and Kalitara as relevant under Section 33 of the Indian Evidence Act. To make the depositions relevant three elements have to be established, namely, first, that the proceeding was between the same parties or their representatives in interest, secondly, that the adverse party in the first proceeding had the opportunity and right to cross-examine, and, thirdly, that the questions in issue were substantially the same in the first as in the second proceeding. In so far as the third element is concerned, it must be conceded that the question in the suit of 1869, as in the present suit, was whether the property belonged to Prandhone or to his wife and if to the latter whether she had made a gift of it to her son Bholanath. The real question in controversy, therefore, is whether the other two conditions have been satisfied. With regard to the first test, it has to be remembered that Raj Kumar the pre sent plaintiff does not claim through her mother Mon Mohini who was a party to the suit but through her father Mirtunjoy. Prima facie, therefore, it would he difficult to hold that the two proceedings are between the same parties or there representatives in interest. But it has been argued that Mon Mohini, as Hindu widow in possession of the estate of her husband, completely represented that estate, and consequently, the position is the same as if she was a party to the suit as a full owner, because a decree against her in a contested litigation would bind the inheritance. Katamanatchier v. Raja of Shivagunga 9 M.I.A. 539 : at p. 604 : 2 W.R. 31 (P.C.); Partab Narain v. Triloki Nath 11 C.186 : 11 I.A.19

7. deference may, in this connection be also made to the observation in the case of Mrinomoyee v. Bhoobum Moyee 23 W.R. 42 : 15 B.L.R. 5, in which Couch, C.J., expressed the view that possibly the principle of the Rule of the English Law of Evidence, by which when there are several remainders limited by one deed, a judgment for or against one of them, is evidence for or against the next in succession, may justify the use under Section 33 of Indian Evidence Act of a deposition in a suit brought against a widow before any adoption, in a subsequent litigation against the adopted son. Pyke v. Crouch 1 Lond Raymond 730, Doe v. Passingham 2 C. and P. 440. These are obviously weighty considerations and though we do not finally decide the point, our present inclination is not to hold the previous deposition inadmissible on the ground that the first element has not been established. The question, however, remains whether the second element has been established, which requires that the adverse party in the first proceeding should have the right and opportunity to cross-examine the witnesses. It appears to us to be reasonably plain that this condition has not been fulfilled. In the first place, Mon Mohini was not the adverse party to Bholanath in the previous litigation as we have already explained; she was not a necessary party to the suit. No relief was claim ed against her by the plaintiff, Tarak Nath. She was made a pro forma defendant, as she had no interest in the one-third share claim ed by Tarak Nath against his brother Bholanath. To use the language in Morgan v. Nicholl L.R. 2 C.P. 117 : 36 L.J.C.P 86 : 12 Jur.(N.S.) 903 : 15 L.T. 184 : 15 W.R. 110, a party is liable to have a de position in a previous proceeding used against him in a subsequent proceeding, only if his opponent is substantially the same in both the proceedings. No doubt as observed in Lawrence v. Manle 4 Drow. 472 : 28 L.J. Ch. 681 : 7 W.R. 314, and Macotire v. Anion 16 M. & G. 27, it is not necessary that the party should have exercised his right of cross-examination because the depositions would be relevant if he deliberately forbore from, or waived the absence of an opportunity for, cross-examination. But in the case before us, it cannot be suggested that Mon Mohini had neither the right or the opportunity to cross-examine the witnesses produced by Tarak Nath and Bholanath in support of their respective cases; in any event, she could not have cross-examined the witnesses of both as her opponents. As was observed in Berkeley Peerage Case 4 Campbell 401 at p. 412 : 14 R.R. 782, a deposition is necessarily a partial representation of facts as to all personas who have no opportunity to bring out the whole trath by cross-examination. Such deposition ought not to be used against the party to his pre judice. The view we take is to soma ex tent supported by the observations in the cases of Lord v. Colvin (1855) 3 Drewry 222 : 106 R.R. 322, and Allen v. Allen (1894) P. 248. We must hold, therefore, that the second condition has not been fulfilled, and that the depositions in the suit of 1869 can not be used in evidence. The second ground urged on behalf of the plaintiff must, consequently, prevail.

[5] With regard to the contention of the respondent that the case is concluded by the finding of the District Judge upon the question of limitation, there is obviously no sub stance in it. That finding is based quite as much as the finding upon the question of title upon evidence inadmissible in law. The whole case, therefore, must be re-considered without any reference to the depositions in the previous suit.

[6] The result is that this appeal is allowed, the decree of the District Judge discharged and the case remanded to be heard by the District Judge, or the Additional District Judge as the case may be, other than the learned Judge, who pronounced the judgment now set aside. The costs of this appeal will abide the result.

ORDER

[7] In this case, the District Magistrate took cognizance as upon a com plaint, and forwarded the complaint to the Deputy Magistrate for enquiry and disposal. The District Magistrate was not bound to examine the complainant on oath, before transferring the complaint to the Deputy Magistrate, and did not do so. But we think that the Deputy Magistrate, before issuing the search warrant under Section 96 of the Code of the Criminal Procedure, should have examined the complainant on oath and we are supported in this by the observations in Queen-Empress v. Mahant of Tirupati 13 M. 18. We must, therefore, discharge the search warrant and direct the return of the articles, if any seized.