D. S. Bajpai J. - (1.) THIS is a plaintiff's second appeal against the judgment and decree dated 29-8-78 passed by the Civil Judge, Gonda, in Civil Appeal No. 53 of 1977 (Gauri Shanker v. Ram Shanker) setting aside the judgment and decree dated 21-1-78 passed by the Munsif, Gonda, in Regular Suit No. 75 of 1973 (Ram Shanker v. Gauri Shanker).
(2.) THE facts giving rise to this second appeal are that the plaintiff, Ram Shanker, filed a suit for partition of his half property in the house in suit against the defendant, Gauri Shanker, on the allegation that he was entitled to half share in the said house which came down to them from their father. THE defendant contested the suit,and filed the written statement in which he, while denying the averments made in the plaint, set up a case that the house in suit was not the house which had come down to them from their father but it was his sole property since he had got it through Dhourhey, son of Bal Kishun, who was the defendant's grandfather, by virtue of a will executed by the said Dhourhey in favour of the defendant. On the pleadings of the parties the trial court framed six issues. THE important issues were : issue ho. 1 which pertained to the facts as to whether the plaintiff had 1/2 share in the property in suit, and the second issue was to the effect as to whether the property was previously owned by Dhourhey who bequeathed it to the defendant. It will be pertinent to point out here that the defendant had filed his written-statement, the plaintiff did not file any replication. The trial court after examining the oral and documentary evidence adduced by the parties, recorded the finding in the affirmative on issue no. 1 and a finding in the negative on issue no. 2. The consequential issue no. 3 to the effect as to whether the house in suit was reconstructed by the defendant was considered to be redundant in view of the findings on issues nos. 1 and 2. It was held that the plaintiff was entitled to 1/2 share in the property. Consequently the suit was decreed as prayed with costs The defendant went up in appeal and the first appellate court, after considering the case of the parties, considered the appeal on the sole point as under : "Whether the learned Munsif has erred in law and fact both in considering the oral and documentary evidence of the parties ?" and proceeded to decide the appeal. The learned first appellate court after considering the oral and documentary evidence as discussed in the judgment, reversed the trial court judgment and while allowing the appeal dismissed the suit holding that the judgment was against the evidence available on record. In this second appeal before me filed by the plaintiff I have heard Sri S. M. Nasir, learned Counsel for the appellant, and the learned Counsel for the respondent at some length.
(3.) THE learned Counsel for the respondent while strongly supporting the judgment of the lower appellate court firstly submitted that as held by the lower appellate court the plaint case having been denied by the defendant, the plaintiff's case was liable to be dismissed since the plaintiff chose not to file a replication which, as he submitted, was necessary for the plaintiff to file under the provisions of Order X, rule 1 of the Code of Civil Procedure in the event of the defendant filing a written-statement and, secondly the trial court having failed to examine oral and documentary evidence, the judgment and decree passed by the trial court was rightly reversed by the lower appellate court. Coming to the first submission of the learned Counsel, a look at the provision of Order X, rule 1 would show : "1. Ascertainment whether allegations in pleadings are admitted or denied-At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials." which clearly indicates that after the defendant is served and appears in the Court personally or through a pleader, the court has to clarify from either of the parties or their pleader whether they admit or deny allegations as made in the plaint or written statement, if any. This clearly indicates that allegations in the plaint have to be clarified by the court from the defendant or his pleader and vice versa and it does not even lead to inference that written statement must also necessarily be filed inasmuch as in the said rule after the words "written statement" it has been inserted there "(if any)". It follows that when written statement is not necessarily to be filed, there cannot be any obligation on the plaintiff to file a replication if a written statement has been filed. This submission apparently is without any force and has to be rejected.;