Shankar v. Manohar Singh — 1979 DIGILAW 159 (ALL)

JUDGMENT P.N. Goel, J. - This is a defendants appeal against the appellate judgment and decree dated 28-8-1968 passed the District Judge, Aligarh, setting aside the judgment and decree dated 6-4-1967 passed by the Munsif, Havali, Aligarh in Original Suit No. 108 of 1964. 2. There was only one point involved' in the case and it is this whether Manohar Singh, plaintiff-respondent No. 1 had acquired a right of easement to irrigate his fields. Nine in number, Nos. 1252 to-1259 and 1263 of village Utara from the Gool existing in plots Nos. 1263 and 1266 of the defendants-appellants. The alleged Gools are said to be connected to a tube-well. 3. In the plaint, the respondent alleged in para 1 that he was irrigating his fields from tube-well situate in plot No. 1265 for more than 30 years, in paragraph 2 of the plaint he mentioned the-two Gools drains passing through the appellants fields Nos. 1263 and 1266. In para 3 of the plaint, he stated that he used to irrigate openly and without any obstruction. In para. 4, he stated that the appellants had obstructed and closed the said Gools. 4. In the written statement, the appellants contended that they did not admit the allegations contained in para. 1 of the plaint for want of knowledge. Then they did not admit the allegations contained in para. 2 of the plaint. Then they did not admit the allegations contained-in para. 3 of the plaint and added that the allegations of the 2nd and 3rd paragraphs, were completely denied. Thereafter, the appellants added additional pleas/contentions in paras 6 to 18 of the written statement. In para 6 they contended that the respondent had no cause of action for the suit and that the respondent had no right to sue. In para 7, they contended that there never existed any irrigation channel from tube-well No. 1265 in their field No. 1266, that the respondent never irrigated his fields through any channel existing in plot No. 1266. They added that it was wrong to assert that the respondent had acquired any right of easement to irrigate. In para 8 of the written statement they again contended that the respondent never irrigated their fields from the tube-well and that no drain passed through their field No. 1266. They added that it was wrong to assert that the respondent had acquired any right of easement to irrigate. In para 8 of the written statement they again contended that the respondent never irrigated their fields from the tube-well and that no drain passed through their field No. 1266. In para 9 the appeal ants contended that no Gool was ever constructed in their plot No. 1266 and that the tube-well department never acquired any land for water channel through their plot No. 1266 and that he was never given any compensation thereof. In para. 12, they contended that the respondent had never any right. In paragraph 13, they contended that the respondent did not file any map indicating the position of the drain. 5. Parties led oral and documentary -evidence in support of their cases. The earliest document which the plaintiff-respondent filed is irrigation slip 1354 Fasli corresponding to year 1946-48. The suit was filed on 27-4-1964. Thus this Irrigation slip was about 16 years old. The trial court framed issue No. 1 with regard to the existence of water channel through plot No. 1266. Then, he framed a specific issue No. 2 whether the plaintiff-respondent had acquired any right of easement of irrigation through the alleged water channel. 6. The trial court referred to all the oral and documentary evidence led by the parties and concluded that there was a water channel through plot No. 1266 of the appellants and that the plaintiff-respondent had not acquired any right of easement to irrigate his fields through the said water channel. Consequently, the respondents suit was dismissed. The respondent went in appeal before the District Judge. The District Judge upheld the finding of the trial court that there was a water channel through plot No. 1266. 7. The main reason for the trial court to hold that the plaintiff had not acquired right of easement to irrigate Ms plots through the said channel was that the tube-well from which irrigation was done did not exist for more than .20 years. This finding was arrived on an appraisal of the oral evidence of the -parties witnesses. 8. The learned District Judge reversed this finding on the grounds (1) the appellants did not mention in the written statement that the tube-well was built within 20 years of the filing of the suit and (2) para. This finding was arrived on an appraisal of the oral evidence of the -parties witnesses. 8. The learned District Judge reversed this finding on the grounds (1) the appellants did not mention in the written statement that the tube-well was built within 20 years of the filing of the suit and (2) para. 1 of the plaint was -not specifically denied in the written statement and as such its allegations should be taken to be admitted. To support the second ground the learned District Judge relied on two cases: Misri Lal v. Bhagwati Prasad, 1955 All LJ 741 : ( AIR 1955 All 573 ) and Jahuri Sah v. Dwarika Prasad Jhunjhunwala, AIR 1967 SC 109 . 9. It may be stated here that even before this Court the learned counsel for the respondent urged that as the allegations contained in para. 1 of the plaint were not specifically denied in the written statement, the said allegations should be taken as admitted. He also placed reliance on the two cases cited just above. 10. Before dealing with the two cases referred to above, and the pleadings in the instant case, it will be appropriate to refer to the relevant rules contained in the Civil P. C. 11. Order VIII, Rule 3 lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth. It will be noticed that if the defendant commits breach of the rule then what consequences shall follow has not been stated in the rule. R. 4 of O. VIII lays down that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thereafter R. 5 of Order VIII says that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. This rule gives the consequences of nonspecific denial or evasive denial dealt with in Rr. 3 and 4. Thereafter R. 5 of Order VIII says that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. This rule gives the consequences of nonspecific denial or evasive denial dealt with in Rr. 3 and 4. This rule envisages three positions; (1) if an allegation of fact is not denied specifically, (2) if allegation of fact is not denied by necessary implication and (3) if allegation of fact is stated to be not admitted. In these three cases the allegation of fact made in the plaint shall be taken to be admitted. 12. In the case of Misri Lal (1955 All LJ 741) cited above it was contended that the award had not been proved. The award in question was a registered one, and properly stamped and was filed by the Sarpanch in the Court on 25-8-1947. Two Panchas including Sarpanch were examined in the case. No question was put to either of them with regard to the execution of the award. The point that no award had been made was not specifically taken in the written statement. In Para 3 of the application, the plaintiffs had definitely stated that the Tanchas and the Sarpanch made the necessary and proper inquiries and gave the award on the 13th Jan., 1947. The defendant-respondent denied this allegation in the following words: 'Tara 3 is not admitted subject to additional pleas." In para 9 of the additional pleas the defendant stated: "All the proceedings were taken in their absence. The award is not according to their opinion n.r did it come to their knowledge. For this reason also the award is invalid and ineffective." In no other paragraph of the written .statement it was averted by the defendant that no award was made by the .arbitrators. No specific issue was framed in this point. In these circumstances the principle laid down in R. 5 of Order VIII, C. P. C. was applied and it was field that the award was made in the case. Thereafter the provisions of the Registration Act were dealt with. At the end it was held that the award was proved in the case. 13. In the other case of Jahuri Sah there was a suit for partition. Thereafter the provisions of the Registration Act were dealt with. At the end it was held that the award was proved in the case. 13. In the other case of Jahuri Sah there was a suit for partition. It was contended that the suit was bad for &non-joinder of one Shankar Lal and that the adoption of Shanker Lal had not been proved by the plaintiffs. The High Court pointed out that the plaintiffs had clearly stated in Para 1 of the plaint that Shanker Lal had been given In adoption to Sree Lal. In the written statement this assertion of fact was not specifically denied. Instead, what was stated in the written statement was that the defendant had no knowledge of the allegations made in para. 1 of the plaint. In these circumstances, the principle laid down in 0. VIII R. 5 was applied. No specific issue on the question of adoption was thus raised, 14. Reverting to the pleadings of the instant case it will be noticed that in 'paras 1 to 3 of the plaint, the plaintiff-respondent asserted his right of easement, to irrigate through the Gool running through plot No. 1266. In the written statement, the defendant did not admit the allegations contained in Paragraph 1 of the plaint on the ground that he had no knowledge. It means that he had no knowledge of the existence of any Gool running through his plot No. 1266. Then, the defendant did not admit the allegations contained in Paras 2 and 3. He added that the allegations contained in Paras 2 and 3 were completely denied. Thereafter in'. Paras 6 and 7 of the additional pleas the' defendant-appellants clearly stated that there was no cause of action to the plaintiff for the suit and that the plaintiff had not acquired any right of easement to irrigate his fields through the alleged Gool running through the said plot No. 1266. Thus there was not only denial of the allegations contained in the plaint but there was specific denial as to the existence of right of irrigation claimed by the plaintiff-respondent. In these circumstances, the two cases relied on by the lower appellate court were not applicable to the instant case. As the right of easement was specifically denied in the written statement, the rule laid down in R. 5 of O. VIII is of no help to the plaintiff-respondent. In these circumstances, the two cases relied on by the lower appellate court were not applicable to the instant case. As the right of easement was specifically denied in the written statement, the rule laid down in R. 5 of O. VIII is of no help to the plaintiff-respondent. 15. With regard to the first ground assigned by the District Judge for upsetting the finding of the trial court, viz., the defendants-appellants had not contended in the written statement that the tube-well did not exist for more than 20 years before the filing of the suit, suffice it to say that there was no allegation in the plaint that the tube-well existed for more than 30 years. The only allegation in the plaint was that the plaintiff was irrigating his fields through a water channel existing in plot No. 1266 of the appellants and that he had a right of easement to irrigate his fields through the said water channel. In the evidence, it came up since when the tube-well came into existence. If the tube-well did not exist for over 20 years obviously there could be no Gool for over 20 years. The appellants clearly denied the right of easement claimed by the plaintiff-respondent. In view of this, it was wholly unnecessary for the appellants to state that the tube-well itself existed for less than 20 years. 16. The existence of a tube-well for over 20 years would not necessarily mean that the Gool in question also existed for more than 20 years. It is a matter of common knowledge as well as of law that a tube-well and a canal is constructed first and the water channels are constructed subsequently. By (Act No. 12 of 1936) the United Provinces State Tube-Well Act, 1936, the provisions of the Northern India Canal and Drainage Act, 1873 have been made applicable to the tube-well. A look at Sections 20 and 21 of the Northern India Canal and Drainage Act, 1873 leaves no room for doubt that the water-courses are constructed after the construction of the canal or a tube-well. Therefore, in the instant case, the duty lay upon the plaintiff-respondent to prove that the Gool through plot No. 1266 existed for more than 20 years and he was irrigating his fields through the said Gool for over 20 years. Therefore, in the instant case, the duty lay upon the plaintiff-respondent to prove that the Gool through plot No. 1266 existed for more than 20 years and he was irrigating his fields through the said Gool for over 20 years. The learned District Judge has not recorded any finding on these two points. Just by saying that the allegations contained in para 1 of the plaint were not specifically denied, he came to the conclusion that the right of easement was proved in the case. This is wholly incorrect. The District Judge himself found that the irrigation slips which were filed by the plaintiff-respondent related only to a few years and they did not go to prove that the plain-tiff-respondent had been irrigating his fields for over 20 years. 17. The position that follows is that the reasons which the District Judge assigned for un-setting the decree of the trial court, were wholly wrong and were not at all borne out by the record. In view of this, the judgment of the District Judge can simply be said to be based on conjectures. Therefore, the judgment and decree of the District Judge cannot be upheld. Instead, they deserve to be set aside by this court in this appeal. 18. On an appraisal of the evidence of the parties, the trial court clearly recorded a finding that the plaintiff-respondent did not acquire a right of easement to irrigate his fields through the alleged Gool in the appellants field. This finding is clearly borne out by the record and as such it cannot be interfered with. In the result this appeal succeeds. 19. The plaintiff-respondent has filed cross-objection with regard to his right of passage. This cross-objection has not been pressed before this Court. The trial court dismissed the plaintiffs suit in respect of the alleged right of passage. The District Judge also affirmed the finding of the trial court with regard to the alleged right of passage. Thus this point is concluded by concurrent findings of fact of both the courts below. 20. Appeal is allowed and the judgment and decree dated 20-8-1968 passed by the District Judge, Aligarh are set aside and the plaintiffs suit is dismissed. 21. The cross-objection is dismissed. The defendants-appellants shall get their costs incurred in this court from the plaintiff-respondent No. 1.