RAM SHANKER Vs. GAURI SHANKER

JUDGEMENT

(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.

(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.