SHANKARLAL GANULAL KHANDELWAL Vs. BALMUKUND SURAJMAL BHARUKA

JUDGEMENT

(1.) BY this second appeal, the appellant/original plaintiff challenges the judgment and decree passed against him by the learned District Judge, Buldana in Regular Civil Appeal No. 271/79. That appeal was filed by the original defendant challenging the judgment and decree passed against him by the learned Civil Judge, Junior Division, Malkapur in Regular Civil Suit No. 50/77. The trial Court found that the sale-deed dated 23-11-1972 was nominal and in the nature of simple mortgage. The trial Court, therefore, cancelled the said sale deed by directing the plaintiff to deposit the amount of Rs. 10,000/- with interest at the rate of 6% per annum. As a result, the suit of the plaintiff came to be decreed. In appeal, the lower appellate Court negatived the aforesaid findings of the trial Court holding that the transaction evidenced by sale deed dated 23-11-1972 was out and out sale. In the result, the appeal came to be allowed and the judgment and decree of the trial Court, were set aside. It is the said finding of the lower appellate Court which is challenged in this appeal.

(2.) AT the outset Smt. V. A. Naik, the learned Counsel for the appellant, submitted that the averments made by the plaintiff in paragraphs 2, 3 and 4 of his plaint were not specifically denied by the defendant. The denial of the said facts is not specific but evasive and when the denial of any fact is not specific but evasive, the said fact will have to be taken as admitted. For this she placed reliance on a decision in Badat and Co. , Bombay v. East India Trading Co. , reported in AIR 1964 SC 538. It is no doubt true that in the aforesaid case, the Apex Court held that 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. However, in the said case, the Apex Court has observed as under :-

(3.) NOW, the only substantial question of law that arises for consideration in this appeal is whether the plaintiff is barred from leading oral evidence in support of his contention that the sale deed in question was sham and bogus and it was not to be acted upon by the parties?