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2008 DIGILAW 1793 (PNJ)

Ram Chander v. Vinod Kumar

2008-10-22

RAKESH KUMAR GARG

body2008
JUDGMENT Rakesh Kumar Garg, J. 1. By way of this appeal, the plaintiff has challenged the judgment and decrees of the lower Appellate Court whereby the judgment and decree passed by the trial Court dismissing the suit of the plaintiff for permanent injunction and declaration has been upheld. 2. Briefly stated, the plaintiff and defendants are real brothers. The claim of the plaintiff as made out from the plaint is that he had purchased the land measuring 37 Kanals 4 Marlas vide sale deed dated 6.4.1976 for a consideration of Rs.20000/-. It is also averred that the suit land was exclusively purchased by the plaintiff and the defendant has nothing to do with the said land as he had not paid any amount towards sale consideration. Further, vide letter dated 29.1.1979, the defendant admitted the claim of the plaintiff with regard to the land in question and promised to make the amount of his share but failed. Therefore, the plaintiff cannot claim half share in the said property in any manner. The defendant has started claiming half share in the disputed property by filing the partition proceedings and also tried to take possession of the disputed property, hence the present suit was filed for decree of declaration that plaintiff is exclusive owner and in possession of the disputed property. It was also prayed that a decree of permanent injunction be passed against the defendant restraining him from making any type of interference in the peaceful ownership and enjoyment of the plaintiff over the disputed property till defendant makes the payment of half consideration for the land measuring 18 kanals 12 marlas. 3. Defendant was served but he did not appear. Hence he was proceeded against ex parte. 4. In ex parte evidence, plaintiff himself appeared as PW1 and tendered his affidavit Ex.PW1/A and after tendering the documents Exs.P1 to P5, closed his evidence. The trial Court vide impugned judgment and decree dated 26.11.2005 dismissed the suit of the plaintiff. 5. Feeling aggrieved by the aforesaid judgment and decree, the plaintiff filed an appeal which was also dismissed by the Additional District Judge, Rewari vide impugned judgment and decree dated 12.12.2007. While dismissing the suit of the appellant, the courts below held that ex. The trial Court vide impugned judgment and decree dated 26.11.2005 dismissed the suit of the plaintiff. 5. Feeling aggrieved by the aforesaid judgment and decree, the plaintiff filed an appeal which was also dismissed by the Additional District Judge, Rewari vide impugned judgment and decree dated 12.12.2007. While dismissing the suit of the appellant, the courts below held that ex. parte evidence adduced by the plaintiff was insufficient for establishing his case that he is exclusive owner and in possession of the land in question and therefore, he is not entitled to the relief prayed. 6. Still not satisfied, the plaintiff has filed this appeal challenging the judgment and decrees of the courts below. 7. The counsel for the appellant has vehemently argued that the courts below have failed to take into consideration letter Ex.PW1/B in its right perspective which is an acknowledgment by the respondent regarding payment of sale consideration by the appellant and thus is a clear admission of the claim of the appellant by the respondent. Learned counsel further argued that a patent illegality has been committed by the courts below in dismissing the suit of the plaintiff ignoring the fact that respondent has chosen not to appear and contest the claim put up by the appellant. Elaborating this argument further, learned counsel has argued that in view of the provisions contained in Order 8 Rule 5 CPC, the averments made in the plaint ought to have been taken to be admitted as there was no response filed by the respondent and thus it was prayed that the judgment and decrees of the courts below be set aside. 8. I have heard learned counsel for the appellant and perused the record. However, I find no force in the contentions raised by the counsel for the appellant. No doubt, under Order 8 Rule 5 CPC, every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted. However, this is not an absolute rule. Proviso to sub Rule (1) of the aforesaid Rule provides that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. It is true that the defendant has not denied the averments made by the plaintiff-appellant. However, this is not an absolute rule. Proviso to sub Rule (1) of the aforesaid Rule provides that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. It is true that the defendant has not denied the averments made by the plaintiff-appellant. However, in my view even if there is no specific denial of any particular fact, it cannot be said that the defendant had admitted the same. In the absence of any defence and specific denial, the plaintiff has to substantiate his case for grant of decree in his favour on the basis of his pleadings and documents produced by him. Therefore the judgment and decree in favour of the plaintiff is not automatic on failure of the opposite party to produce his defence. The Court can grant a judgment in favour of the party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence. In the case in hand, the courts below have recorded a finding of fact that the plaintiff has claimed exclusive ownership of the property in dispute. But in the sale deed Ex.PW1/C dated 6.4.1976, both the plaintiff and defendant are shown to be owners of the land in dispute in equal shares and there is no reason to disbelieve the contents of the sale deed which is duly registered by a public servant in the discharge of his official duties. It is further also observed that as regards the letter Ex.PW1/B written by the defendant to the plaintiff, it is enough to state that by no stretch of imagination, it can be gathered from this document that the defendant admitted the claim of the plaintiff and from the pleadings of the evidence produced on record by the appellant, it cannot be held that he is the exclusive owner of the property in dispute. 9. Thus the above finding of fact could not be challenged by the RSA No. 1760 of 2008 4 learned counsel for the appellants. I find no merit in the appeal. No substantial question of law arises. Dismissed. Appeal dismissed.