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Nilkanth Bhawe Vs. Gopaldas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 93 of 1958
Judge
Reported inAIR1963MP230
ActsCode of Civil Procedure (CPC) , 1908 - Orders 8, Rule 5 - Order 18, Rule 18
AppellantNilkanth Bhawe
RespondentGopaldas and anr.
Appellant AdvocateS.T. Mungre, Adv.
Respondent AdvocateH.G. Misra, Adv.
DispositionAppeal partly allowed
Cases ReferredMadhusudandas v. Madanlal
Excerpt:
- - i am, therefore, clearly of the view that there was no implied admission in this case except for the existence of the spouts. it is well-known law that a site inspection note serves the court merely for the appraisal of the situation and for a better understanding of the evidence of the parties in which the site may be referred to......the whole of the evidence on record; that it erred in law when some of the denials made in the written statement were treated as implied admissions and that the site plan which the learned judge of the first appellate court himself made on a site inspection, was used beyond permissible limits. after hearing the learned counsel for the respondents i have formed the view that the judgment of the first appellate court must be set aside.5. in paragraphs 1 and 2 the plaintiffs allege that the lane (efhg) is a joint property. the defendant denies this. in paragraph 1 of the written statement be admits that in the west there is an open space (lane) but he denies that it is joint (par mujhe mistarka hona manya nahin). it may be noted that in paragraph 1 of the plaint there is no specific.....
Judgment:

Shiv Dayal, J.

1. This appeal arises out of a suit for declaration of title and other reliefs in respect of an open space called a lane and the right to discharge water therein as also in respect of certain walls. An injunction was also prayed for. The suit was resisted by the defendant, who denied all the allegations of the plaintiffs.

2. The houses of Gopaldas, plaintiff No. 1 and Champabai plaintiff No. 2 are adjoining each other and they are separated by a narrow lane from the defendant's house. A sketch was filed with the plaint and it is convenient to refer to the letters used in that sketch, The plaintiffs' case is that the walls AE, EF and FD, which are almost in continuation, belong to them that the lane demarcated by the letters EFHG is a joint property of the parties and the plaintiffs have a right to discharge water in that lane through five spouts in their houses and in the alternative, a right of easement is claimed for discharging water in the lane throughthe (sic)cts. The defendant has constructed a wall in the lane and it is prayed that it be dismantled.

3. The trial Judge dismissed the plaintiffs' suit holding that they could not prove their case. On their appeal, the learned Additional District Judge, Gwalior held that the walls were proved to be of the plaintiffs, and that the lane EFHG was proved to be a joint property of the parties. He, therefore passed a decree in favour of the plaintiffs .The Court did not decide the question of casement as it became unnecessary.

4. Shri Mungre, learned counsel for the defendant-appellant contends that the judgment of the first appellate Court is not in accordance with law inasmuch as it did not consider the whole of the evidence on record; that it erred in law when some of the denials made in the written statement were treated as implied admissions and that the site plan which the learned Judge of the first appellate Court himself made on a site inspection, was used beyond permissible limits. After hearing the learned counsel for the respondents I have formed the view that the judgment of the first appellate Court must be set aside.

5. In paragraphs 1 and 2 the plaintiffs allege that the lane (EFHG) is a joint property. The defendant denies this. In paragraph 1 of the written statement be admits that in the west there is an open space (lane) but he denies that it is joint (par mujhe mistarka hona manya nahin). It may be noted that in paragraph 1 of the plaint there is no specific allegation that it is joint property except in the description of the boundaries 'Pashchim: gali mustarka fariquain wa baadhu makan pratiwadi'. Even so, the defendant makes a specific denial and this only shows his vigilance. Then in pant No. 2, of the written statement is is stated that the open space intercepting between the two houses cannot be called a lane; and the defendant asserts that the said space was not joint 'Yeh gali (khuli jagah) mushtarka nahin hai'. It is true that in paragraph 4 of the plaint the plaintiff states that 5 spouts discharge water in that open space 'which has been in joint use', and the defendant merely replies that this paragraph is denied. It cannot, however, be said that there is any 'admission' in view of the denials and assertions in paragraphs 1 and 2 of the written statement. In paragraph 4 of the written statement it is also denied that the sports are 'pushtaini (ancestral). There is no denial about the existence of the spouts and the defendant can be deemed to have admitted their existence.

6. Similarly in paragraph 5 of the plaint it is asserted that the wall ABCD belongs to the plaintiff exclusively and the defendant has wrongly described in the sale-deed the walls AF and FD as joint. The defendant denies the allegations in these words: 'paragraph No. 5 is denied.' In my opinion, it is not correct to read these denials as implied admissions. It is provided in Order 8, Rule 5 that the defendant must in the written statement either admit or specifically deny every particular allegation made in the plaint, and that any allegation of fact to the plaint which is not denied specifically or by accessory implication or not stated to be not admitted in the pleading of the defendant shall be takento be admitted. These rules require that the denial must be specific, but this does not mean that every allegation in the plaint should be reproduced at length in the written statement for the purpose of denial. The main allegations on which the suit is based must be expressly denied. In Rule 5 the words 'denied specifically' are followed by 'necessary implication' which means that if from the written statement a denial must be inferred it must be taken as a denial. If an allegation is specifically stated in the written statement as 'not admitted', then also under Rule 5 it cannot be treated as an implied admission. The words 'stated to be not admitted in the pleading of the defendant' leave no manner of doubt that when any allegation in the plaint is answered in the written statement by saying that it is 'not admitted by the defendant', it is not possible to say that it has been impliedly admitted. Otherwise this, in my opinion, will be a contradiction in terms.

7. Learned counsel for the respondent relies on Rishab Kumar Mohanlal v. Singai Motilal, AIR 1949 Nag 21. In that case paragraph 1 of the plaint involved 2 statements of fact and the question of adoption was one of them. All that the defendant did in his reply was to deny the allegation in regard to the fact of adoption. He said nothing regarding the minority of the plaintiff as disclosed in that paragraph. As such the written statement could not be read as referring to the allegation of minority. The decision has no application here. It is an authority for the proposition that where several allegations of fact are made in one and the same paragraph of the plaint, it is the duty of the defendant to answer each and every allegation separately and if any of them is not specifically denied then under Rule 5 an admission can be implied.

8. There is yet another aspect of the matter. The proviso to Rule 5 of Order 8 enables the Court in its discretion to require any fact to be proved otherwise than by an implied admission. In the present case, issue No. 3 specifically related to the wall AF; issue No. 1 was about the ownership of the lane and issue No. 2 about the right of easement. Shri Misra does not tell me that any objection was taken by the plaintiffs when these issues were framed. I am, therefore, clearly of the view that there was no implied admission in this case except for the existence of the spouts. Apart from consequential matters there were four main questions of which parties joined issue: (1) whether the walls AF and FD belonged to the plaintiffs; (2) whether the lane EFHG was joint property; (3) if not, whether the plaintiffs had a right of easement to discharge water in this lane through the spouts, and (4) if the lane was joint property, whether the defendant had a right to construct a wall along GH.

9. It will not be out of place if I mention here that there was no specific issue framed about the wall DF. Similarly, my impression is that ABCD as shows in the plaint sketch is not a wall. In paragraph 2 of the plaint 'ABCD' is described as a lane while in paragraph 5 it is described as a wall.

10. The plaintiffs produced Chimanlal, Rajaram, Vasudeo as their witnesses. The defendant examined himself and his two witnesses Laxman Das and Mangilal and produced a sale deed Ex. D. 1 dated February 8, 1952 together with the map annexed to it. It is conceded by Shri Mishra that there is no reference in the judgment of the first appellate Court of the Statements of Rajaram P.W. Vasudeo P.W., Nikantha D.W., Laxman Das D.W. or Mangilal D.W. to it. Therefore, the judgment of the first appellate Court is incomplete and is not according to law. It is unnecessary to repeat what I have said in Madhusudandas v. Madanlal, Second Appeal No. 157 of 1959 as to the duty of the first appellate Court.

11. My attention has been invited to the note of the site inspection recorded by the learned Judge of the first appellate Court wherein certain portions have been described as 'owned by' one party or the other. Shri Mungre's objection is that at the time of a site inspection, the Court cannot prejudice itself by taking for granted that a certain portion is 'owned' by a particular person. The question of ownership has always to be determined from the evidence on record. It is well-known law that a site inspection note serves the Court merely for the appraisal of the situation and for a better understanding of the evidence of the parties in which the site may be referred to. It can never be the basis of a judgment.

12. The result is that this appeal is partly allowed, the judgment and decree passed by the first appellate Court are set aside and the case is sent back to it for a fresh decision in accordance with law. Costs in this appeal shall abide the result of the first appeal after this remand.


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