Hari Singh and Another vs Vikram Singh and Others

Sheel Nagu, J.—Learned counsel for the rival parties are heard on the question of admission. Record of both the Courts below is perused. This second appeal arises out of concurrent findings of both the Courts below in rejecting the suit for declaration of title and permanent injunction filed by the plaintiffs-appellants on the strength of partition between the plaintiffs and the defendants, which took place 40 to 50 years ago in respect of the agricultural land in question.

The defendants in their written statement denied the factum of partition as alleged by the plaintiffs. The defendants further contend that land falling in the share of Narayan Singh had been alienated by the said Narayan Singh during his life time by way of registered sale deed dated 18.06.1991 in favour of defendant No. 10 Rajesh, who has been put in possession. The defendants thus contended that the suit has been filed after 17 years of the said sale deed having been executed and, therefore, the same deserves to be rejected.

The trial court after framing various issues including issue No. 2 as to whether any partition took place 40 to 50 years ago between Dalel Singh, Narayan Singh and Bhagwan Singh or not? held on the basis of evidence adduced on record that the factum of partition as alleged by the plaintiffs is not established. The trial Court found that during life time of Suwaju, the property in dispute were in joint ownership and possession of Suwaju, Narayan Singh, Bhagwan Singh and Dalel Singh. The trial Court found that Suwaju died prior to 1950 till when the land in question was in joint ownership and possession. The trial Court further found that after the death of Suwaju, the suit property was in joint ownership and possession of Dalel Singh, Bhagwan Singh and Narayan Singh and that no partition as alleged by the plaintiffs could be established. Consequently, the trial Court held that the plaintiffs could not be said to be in separate ownership and possession of their respective shares in the suit property. Accordingly, the suit for declaration and permanent injunction was decreed against the plaintiffs.

The first appellate court has upheld the judgment and decree of the trial Court by finding that the trial Court has rightly found the factum of partition to be not established thereby rendering negative findings in respect of other issues against the plaintiffs.

Learned counsel for the appellants primarily contends that since the factum of partition was not denied by the defendants in their written statement the same ought to have been treated as admitted fact under Order 8 Rule 3 & 5 of CPC for which reliance has been placed on the decision of this Court in the case of Mohd. Syed and Another Vs. Hindustan Petroleum and Others, .

True it is, implied admission is inferred under Order 8 Rule 3 & 5 of CPC in case of vague or evasive reply in written statement to the pleadings in the plaint, but at the same time pleadings made in the plaint can get converted into evidence only when it passes test of proof. In other words, mere alleging a fact in the plaint with absence of denial in the written statement with regard to the fact, cannot by itself entitle the plaintiffs to decree by deemed admission. The plaintiffs have to produce documentary/oral evidence to establish the pleadings. When the Court finds that the evidence produced in support of the fact alleged are sufficient after being weighed on the scale of preponderance of probability, can pleadings get transformed into proof, thereby entitling the Court to render findings on that basis.

In the instant case, the plaintiffs desperately failed to produce the evidence in support of their basic and primary contention of partition of the suit land in question having been occasioned 40 to 50 years ago. Thus the pleading of partition in the plaint remained "pleading" and could not get converted to proof, notwithstanding the failure of the defendants denying the said factum in the written statement.

A bare scrutiny of concurrent findings rendered by both the Courts below, this Court does not find any glaring irregularity or illegality in the said findings and, therefore, this Court is of the considered view that neither any of the proposed substantial questions of law nor any new one arises for consideration. Accordingly, this second appeal deserves to be and is hereby dismissed at admission stage, Sans cost.