Rajindar Kaur and Others vs Daropdi and Others

Prem Chand Pandit, J.—Smt. Daropti filed a suit against Sham Singh and 8 others for possession of a house and a vacant site (bara) on the allegations that she was the owner of these properties and the Defendants had illegally entered into possession of the same.

The Defendants pleaded that the house belonged to the Plaintiff, but not the vacant site.

On the pleadings of the parties, only one issue was framed, namely, whether the Plaintiff is the owner of the abadi and the kotha (vacant site) describe in the head-note of the plaint as No. 2.

It may be mentioned that both the counsel are agreed that this issue only relates to the vacant site and not the house in suit.

After discussing the evidence produced by the parties, the trial Court came to the conclusion that the Plaintiff had failed to prove her ownership of the vacant site. As a result, her suit for possession of the house, which had been admitted by the Defendants to be that of the Plaintiffs, was decreed, while her suit regarding the vacant site was dismissed.

Against this decision some of the Defendants, including three minors, filed an appeal before the learned District Judge, Kapurthala. The only point raised before the learned Judge was that the trial Court had failed to frame two necessary issues with regard to the adoption of Surjit Singh and the ownership of the house in suit. The submission was that Smt. Daropti had adopted, Defendant No. 3, Surjit Singh, son of Sham Singh, Defendant No. 1, and, therefore, Surjit Singh and some of the other Defendants, as for example, his wife, Smt. Rajinder Kaur, Defendant No. 2, and his minor son, Malkiat Singh, Defendant No. 6, were residing in the house with the consent of the adoptee, as they were the members of his family. It was also contended that out of the nine Defendants, three, namely, Malkiat Singh, Smt. Parkash Kaur and Smt. Nachhitro, Defendants 6 to 8, were minors and they were represented by the Court Reader, who was appointed their guardiab. In the written statement filed on their behalf, the reply with regard to the ownership of the house as alleged by the Plaintiff in the plaint was that they had no knowledge about such ownership. The word used was "la ilmi". The learned District Judge seemed to be of the view that since there was no categorical denial by the minor-Defendants regarding the ownership of the house claimed by the Plaintiff, there was no need of framing an issue on this point. As regards the adoption, the learned Judge remarked that only Surjit Singh, Defendant, could take the plea that he had been adopted by the Plaintiff and the same could not be taken by the other members of his family, and that Surjit Singh had not filed an appeal, against the decree of the trial Court. He, consequently, dismissed the appeal. Against this, the present second appeal has been filed by Malkiat Singh and Ajaib Singh, minors, and Smt. Rajinder Kaur.

The only point that has been argued by the learned Counsel for the Appellant is that the trial Court had erred in law in not framing an issue regarding the ownership of the house. He submitted that the minor-Defendants had not admitted the Plaintiffs ownership of the house and, consequently, an issue should have been framed on this point and the Plaintiff put to proof regarding the same. The argument was based purely on the provisions of Order 8, Rule 5, CPC Code, which are as under:

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 except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

Learned Counsel contended that, in the first place, the minors had never admitted the allegation of the Plaintiff regarding the ownership of the house. It is true that their guardian had not specifically mentioned in the written statement that the allegations of the Plaintiff were not admitted and instead he had used the word ''la ihni'', that is, not known. But from that it could not be inferred that they were admitting the allegations of the Plaintiff in this regard. Secondly, even if it be held that ''la ilmi'' is equivalent to implied admission, such an admission could not be used against the minors, who were persons under disability, as contemplated by the provisions of Order 8, Rule 5, CPC Code. Reliance in this connection was placed on a Division Bench authority of the Madras High Court in Govindasami Padayachi by next friend and Another Vs. R. Sami Padayachi, .

The argument of the learned Counsel for the Appellant is, on the face of it, quite attractive, but, in reality, there does not seem to be any substance in it. Order 8 deals with the "written statement and set off." In Rule 5 thereof, it is mentioned that every allegation of fact in the plaint shall be deemed to be admitted, if the Defendant did not deny it specifically or by necessary implication. The only exception has been made in the case of persons under disability. Undoubtedly, minors are also covered by this exception. The effect of this exception is that if a minor does not specifically or by necessary implication deny any allegation of fact made in the plaint, then the same will hot be taken to be admitted by him and if at the time of the framing of the issues, he seeks an issue to be struck on that point, the Court, is bound to frame one and the case would then be decided on the merits. If, however, the minor, through his guardian, does not raise any objection for the framing of an issue on that point, then later on he cannot be heard to say that that allegation of fact in the plaint was never admitted by him. From this it is clear that the scope of Order 8 Rule 5 Code of Civil Procedure, is only confined to the stage of pleadings and it has nothing to do with the conduct of the case afterwards. I am supported in this view of mine by a Bench decision of the Madras High Court in Naggappa and Ors. v. Siddalingappa and Ors. 47 I.C. 579. The ruling relied upon by the learned Counsel for the Appellants has no application to the facts of the present case, because full facts regarding the entire proceedings of that case have not been given therein. I may, however, mention that there is authority for the proposition that if in the written statement one were to say with regard to a particular allegation of fact in the plaint that it is not known, i.e., "la ilmi", it will not be equivalent to saying that that allegation of fact is "not admitted" [see in this connection Lakhmi Chand Vs. B. Ram Lal Kapoor Vakil, Under these circumstances, the Plaintiff was not put to the proof of the allegations made by her in the plaint that she was the owner of the house in dispute. In this view of the matter, the trial Court had not made any error in not framing an issue regarding the ownership of the house.

The result is that this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.