NALLUR CHAKRAVARTHI RAJAGOPALACHARIAR Vs. BASHYACHARIAR

JUDGEMENT

(1.) THE plaintiff brings this suit as a reversion-er to recover properties which were in the possession of the widow of the last male holder. He brought the suit on the 7 of September and alleged in his plaint that the widow had died on the 28 of September 1906 thus bringing his suit within time. THE defendants in their written statement pleaded as follows : " THE plaintiff should prove that the said Seshammal died on 28 September, 1906 and these defendants do not admit that date as the date of her death. " Later on in the written statement they say : " THE plaintiff's suit is barred by limitation also. " THE 5 defendant in a separate written statement also took the plea that the suit was barred by limitation. Issues were accordingly framed, the 6 issue being " Whether the suit is barred by limitation ? " and subsequently an additional issue was framed "When did the widow Seshammal die ? " THE District Judge has found that Seshammal did not die on the date alleged by the plaintiff and that consequently the suit was barred by limitation and now in Second Appeal it is urged that this finding, although a finding of fact, cannot be accepted because there was an admission in the defendants pleadings of the allegations by the plaintiff. THE provision of the Civil Procedure Code relating to this is Order 8, Rule 5, which states 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 except as against a person under disability. " In the present case the defendants distinctly stated that they did not admit the plaintiff's allegation as to the date of Seshammal's death. It is argued that inasmuch as they did not make a counter- allegation as to what that date exactly was, it must be deemed to be an admission within the meaning of Rule 5 and reliance is placed on several English cases, i.e., Thorp V/s. Holdsworth (1868) 3 Ch. D. 837. Tildesley V/s. Harper (1871) 7 Ch. 403. and Rutter V/s. Tregent (1879) 12 Ch. 758. THEse cases, however, appear to me to be based not on the corresponding provision to Rule 5 but to the provision corresponding to Rule 4 of Order 8 which says that " Where a defendant denies an allegation of fact in the plaint he must not do so evasively." In these cases there were several circumstances set out in the plaint as constituting the details of certain transactions and instead of denying those several circumstances specifically, the defendants denied them as a whole and as pointed out in one of the judgments such denial would be perfectly justified, provided any one of these circumstances was not strictly accurate, but that it did not amount to a denial of each and every one of those allegations. In the present case there is no question of evasive denial for here there is only one fact alleged arid that has been stated to be not admitted. Whether the defendants actually knew the Bate of Seshammal's death or not at the time they made this pleading does not seem to be material. It was understood by all the parties that this plea of limitation was taken and that the ground of the plea was that the suit was not brought within twelve years of Seshammal's death. THEre is no question of the plaintiff being taken by surprise and consequently, there being no admission as to the date, the finding of the District Judge must be accepted. In that view, this Second Appeal fails and is dismissed with costs, two sets.