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2000 DIGILAW 446 (ORI)

JAYAKRISHNA DAS v. MOHANI CHARAN DAS

2000-09-12

L.MOHAPATRA

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L. MOHAPATRA, J. ( 1 ) THE defendants are appellants before this Court against an affirming judgment. ( 2 ) THE respondent filed the suit for a decree for partition and for allotment of half share in the suit schedule properties. The case of the plaintiff is that prior to his birth late Uchhab Das had adopted defendant No. 1 as his son. The suit properties originally belonged to one Dibakar Lenka and in the year 1946 the same was purchased by late Uchhab Das in the name of the mother of the plaintiff and defendant No. 1 jointly. As the mother of the plaintiff died leaving behind the plaintiff and defendant No. 1, both of them sold the suit properties to Uchhab Das under a registered sale deed dated 23. 1. 1950. After death of Uchhab Das the plaintiff and defendant No. 1 were in joint possession of the same and in view of the inconvenience experienced by the parties in possessing the properties jointly, a prayer was made to defendant No. 1 for an amicable partition which was turned down. Therefore, the suit was filed. ( 3 ) DEFENDANTS filed a joint written statement denying all the allegations of the plaintiff. The first objection taken is that the plaintiff is not the son of Uchhak Bas, but the son of one Bimbadhar Das alias Rout. As Bimbadhar died leaving behind his widow Ketaki and the plaintiff, Uchhaba brought both Ketaki and the plaintiff to his house. Uchhaba died in the year 1952 leaving behind defendant No. 1 as his only son and defendant No. 1 became the exclusive owner in possession of the suit properties. It is further stated in the written statement that defendant No. 1 is possessing the suit land as exclusive owner thereof with the house standing thereon and is paying rent for the lands and holding tax in respect of the house. A further plea was raised by the defendants to the effect that l8l/2 decimals of land from out of plot No. 213 pertaining to Khata No. 19 in mouza sagabaria acquired jointly by the plaintiff and defendant No. 1 from the ex landlord Nrusinghanath Thakur has not been brought into the hotch potch and therefore, partial partition is not maintainable. A further plea was raised by the defendants to the effect that l8l/2 decimals of land from out of plot No. 213 pertaining to Khata No. 19 in mouza sagabaria acquired jointly by the plaintiff and defendant No. 1 from the ex landlord Nrusinghanath Thakur has not been brought into the hotch potch and therefore, partial partition is not maintainable. ( 4 ) THE trial court framed as many as 8 issues and decreed the suit on the finding that the plaintiff is the son of Uchhab Das through his second wife Ketaki and his first wife died leaving behind his only daughter who is defendant no. 3 The trial court further found that the defendants have failed to prove that defendant no. 1 had acquired title by way of adverse possession as well as there was no pleading with regard to share of the plaintiff and that the 181/2 decimals of land as referred to in the written statement was the exclusive property of the plaintiff and had not been acquired by both plaintiff and defendant No. 1 jointly. In appeal the lower appellate court also confirmed the findings of the trial court and dismissed the appeal. ( 5 ) IN this appeal only one substantial-question of law has been raised and the appeal has also been admitted on the substantial question of law as enumerated in ground No. 5 (1) which runs as follows :-"whether both the courts-below are justified in declaring the title of the plaintiff in respect of the leasehoidtend measuring about A. 0-18 decimals, specially when the said property is neither included in the plaint schedule nor there is any pleading by the plaintiff in the plaint to declare it as his exclusive procute and in absence of any issue in that score. " ( 6 ) MISS Mohapatra, learned counsel appearing for the appellants, submits that the substantial question of law raised in the appeal relates to 181/2 decimals of land which was purchased by the plaintiff and defendant No. 1 jointly and not brought within the schedule of properties attached to the plaint and therefore, the prayer for partial partition was not maintainable, she further submits that the counter claim made by the defendants that the aforesaid property was not brought within the purview of the suit has not been denied by the plaintiff by way of filing written statement and therefore, the Court should have answered the points raised in favour of the defendants. She further submits that the plea of the plaintiff that he is the exclusive owner of the aforesaid piece of land and it was not necessary to bring it within the purview of the suit could not have been entertained by the courts below in absence of any pleading to that effect. ( 7 ) LEARNED counsel appearing for the respondent submits that because of the plea raised by the defendants, an issue was framed and the said issue has been answered against the defendants and confirmed in appeal. Therefore, the same being a finding of fact, it cannot be entertained in second appeal. ( 8 ) FROM the impugned judgment of the trial court it appears that out of 8 issues framed by it, issue No. 4 is with regard to maintainability of the suit where a prayer for partial partition is made. The case of defendant No. 1 was that he had purchased the land along with the plaintiff jointly from the ex landlord Nrusinghanath Thakur. The question that is to be decided is as to whether when such a plea is raised and an issue is framed, is it necessary for the defendant to establish the same or in absence of any written statement to the said claim, the court has to answer the issue in favour of the defendant. Order 8, Rule 6-A of the Code of Civil Procedure provides :"6a. Order 8, Rule 6-A of the Code of Civil Procedure provides :"6a. Counter claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. "order 8, Rule 10, C. P. C. provides :"10. Procedure when party fails to present written statement called for by Court.-Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. "from the aforesaid two provisions it is clear that when a counter claim is made by the defendant it is open for the plaintiff to file a written statement in answer to the counter within such period as may be fixed, by the court. Where the plaintiff fails to file such written statement within the time fixed, the court may pronounce judgment against him or may make such order in relation to the suit as it thinks fit. Where the plaintiff fails to file such written statement within the time fixed, the court may pronounce judgment against him or may make such order in relation to the suit as it thinks fit. Therefore, it cannot be said that where the plaintiff fails to file a written statement to the counter claim of the defendant, the court must pronounce judgement in favour of the defendant with regard to the said counter claim. If the defendant fails to prove the claim in the counter, then it will be open for the court to reject the prayer. In the present case a specific plea was taken by the defendants that 181/2 decimals of land purchased out of plot No. 213 appertaining to khata No. 19 in mouza Sagabaria had been acquired jointly by the defendant No. l and plaintiff from the ex landlord Nrusinghanath Thakur and therefore, the said property having not been brought within the purview of the suit prayer for partial partition was not maintainable. Since the plaintiff claimed exclusive ownership over the property, he did not think it proper to bring it within the purview of the suit. However, the trial court framed a specific issue, i. e. issue No. 4 and answered the same against the Defendants. The finding against this issue is that the defendants failed to prove that the suit property was acquired jointly by plaintiff and defendant No. l and that the property had not taken the shape of joint family property. Even ignoring the finding of the trial court that the plaintiff is the exclusive owner of the property, defendants having failed to prove that the said piece of land is a joint family property, the counter claim could not have been allowed. The lower, appellate court also answered the issue against the defendants on the very same finding. Finding with regard to counter claim of the defendants in respect of the aforesaid 181/2 decimals of land being finding of fact that it was not a joint family property this Court in second appeal cannot disturb the same. ( 9 ) LEARNED counsel for appellant has relied upon the decision reported in AIR 1966 Supreme Court 735: Bhagawati Prasad v. Chandramaul and submits that any. evidence led by a party in the suit without any pleading is inadmissible. ( 9 ) LEARNED counsel for appellant has relied upon the decision reported in AIR 1966 Supreme Court 735: Bhagawati Prasad v. Chandramaul and submits that any. evidence led by a party in the suit without any pleading is inadmissible. There is no dispute about the aforesaid principle of law, but in the present case the same may not have any relevance as the defendants failed to prove the counter claim raised by them and therefore, even ignoring the claim of the plaintiff that the aforesaid property was his exclusive property, the defendants having failed to prove that the same is part of joint family property, the counter claim could not have been allowed. I, therefore, do not find any merit in the appeal and the same is dismissed. No costs. Appeal dismissed.