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2009 DIGILAW 546 (BOM)

Pundlik s/o. Kisan Akhatkar v. Wasudeo Kisan Akhatkar

2009-04-22

A.H.JOSHI

body2009
JUDGMENT:- This is an appeal by original plaintiff who lost in both the Courts. The plaintiff came with a plea of injunction in relation to four separate parcels of land as follows:- "Survey No.247: Survey No.248: Claim is on the basis of antecedent possession and exclusive possession. Khasra Nos.254 and 258 are purchased and is in possession as owner thereof." 2. Defendants denied plaintiff's claim of partition, and exclusive ownership and pleaded joint ness of family and properties. 3. Learned Trial Judge framed the issues based on the points as to the plaintiff s title and possession. 4. Issue No.2 was framed relating to separate possession of the defendants on other properties based on previous partition, and that the defendants have no concern with the suit property. Issue No.2 reads as follows: "(2) Whether he (plaintiff) proves the name of deft No.1 shown in Bhumapan only as partition was effected orally?" [Quoted from page 28 of Second Appeal Paper book] 5. On the basis of the pleadings, and the oral evidence, the trial Court held that the plaintiff did not prove his exclusive ownership over the suit land. The plea of separate possession by the plaintiff on the basis of the partition was held not proved. 6. This Court had, at the time of admission hearing denoted that questions no.4 & 8 as the substantial questions of law, which are reproduced as follows: "4. Whether the factum of partition of a joint family could be ignored in the absence of document although the parties admit separation of individual interest? 8. Whether the Courts below have erred in holding that the land bearing Nos.254 and 258 were the joint properties?" [Quoted from pages 2 & 3 of appeal paper book] 7. Learned Advocate Khubalkar's contention is that the plaintiff's pleadings that the plaintiff is the owner on the basis of the purchase of three lands namely Survey Nos.254 & 258 are not denied by the Respondents, and thereby the said plea of the plaintiff stands admitted, and therefore, plaintiff s suit was liable to be decreed on said deemed admission to the extent of these lands at least. 8. Now coming to the facts of the case, it is necessary to find out what is the exact pleading of the plaintiff. 9. Learned Advocate Mr. 8. Now coming to the facts of the case, it is necessary to find out what is the exact pleading of the plaintiff. 9. Learned Advocate Mr. Khubalkar has drawn the attention of this Court to unnumbered sub-para of para 11 of the amended plaint in record of trial Court. It would be useful to reproduce the same as follows: "The field shown as bhumapan nos.254 and 25856 Rand 47 R. respectively are the lands purchased by regd. sale deed by plff. and they are in his possession and plff. is owner of the same." [Quoted from page 8 of R & P of RCS No.315/88] 10. Learned Advocate Mr. Khubalkar has then brought to the notice of the Court the written statement. Perusal of the written statement reveals that it is not answered with reference to each of the paragraphs. The title of the plaintiff in relation to the Survey Nos.247, 254 & 258 is denied in contents of para 2. The said denial reads as follows: "2. It is denied that land 247, 254, 258 is in possession of the plaintiff as owner as alleged." [Quoted from page 16 of R & P of RCS No.315/88]. 11. In order to ascertain whether this denial is evasive or ambiguous or clear denial, adequate or not, it is necessary to once again refer to the submissions and basic pleadings, the traverse or non traverse is being scrutinized. 12. It is the oral argument of the learned Advocate Mr. Khubalkar that these lands are personally acquired individual properties of the plaintiff, and this allegation of the plaintiff, according to Mr. Khubalkar, is not denied by the defendant. Learned Advocate Mr. Khubalkar reiterate that what he means is that. these are plaintiff s self acquired properties. 13. It is necessary to cross match the oral submission of learned Advocate Mr. Khubalkar to the pleadings on record. 14. It is seen that the words "personal properties or self acquired properties" are not found in the pleadings. 15. The assertion in the pleading is that the "plaintiff has purchased these suit lands". A plea of separate ownership in contrast with history of Hindu Undivided Family property has to be a distinct pleadings whereby the nexus with Hindu Undivided Family is to be distinctively read. 16. Thus, the aforesaid non-discrete averment has been denied by the defendant. 15. The assertion in the pleading is that the "plaintiff has purchased these suit lands". A plea of separate ownership in contrast with history of Hindu Undivided Family property has to be a distinct pleadings whereby the nexus with Hindu Undivided Family is to be distinctively read. 16. Thus, the aforesaid non-discrete averment has been denied by the defendant. The need of length and breadth of denial shall always be decided by tenor, texture, length breadth, and quality of the pleading in the plaint. 17. The plaintiff has vaguely pleaded his title to the property as "personally purchased", and the defendants have denied it plainly. 18. It is not the case that the plaintiff has urged that it is his "self acquired property". Such a plea would have certainly invited a reply. Unless plea is warrants exhaustive denial or explanation is not needed. An un-ambiguous denial can suffice categoric denial. 19. The term "self acquired property" has received certain legal connotation over the century in past. A plea that a party has purchased the property cannot be read as synonym to said property being a "self acquired property". 20. During oral submissions, learned Advocate Mr. Khubalkar has relied on two reported Judgments: 1. (2007)6 Supreme Court Cases 401, M. Venkataramana Hebbar (Dead) By Lrs. Vs. M. Rajagopal Hebbar and others. 2. AIR 2004 Supreme Court 230, Sushil Kumar Vs. Rakesh Kumar. 21. The proposition that "facts which are admitted need not be prove" does not need a support of precedents. Even there cannot be any debate on the point that the denial has to be clear and distinct and not evasive. These precedents are binding and there is no room of doubt about correctness of prepositions argued on the basis of these precedents. This Court, therefore, does not find it necessary to discuss these precedents, as those are re-affirmation of the of settled law. 22. The appellant's reliance on the rules of pleading, and the claim for deemed admission, therefore, is a far stretched and far fetched submission and said rule does not destroy defendants' success and after plaintiff s prospects in view of plaintiff sown vague pleadings. 23. In so far as the ground nos.4 and 8 the substantial questions of law are concerned, those are the statements of one another in different language, except that, survey numbers are not mentioned in ground no.4. 24. 23. In so far as the ground nos.4 and 8 the substantial questions of law are concerned, those are the statements of one another in different language, except that, survey numbers are not mentioned in ground no.4. 24. This Court, therefore, finds that this question is based on plaintiff s assumption and submission advanced at the stage of admission hearing, and even now that "the defendant has admitted partition, and plaintiff s separate ownership over some of the suit lands". This Court has found from the pleadings that there is no direct or implied or deemed admission of plaintiff s claim. This aspect is discussed in detail in foregoing paras. This Court, therefore, holds that the substantial questions of law framed, at the stage of admission, do not arise in the case at all. The concurrent Judgment and decree impugned does not call for any interference, and appeal is dismissed with costs. Appeal dismissed.