The non-filing of a replication by the plaintiff to the written statement of the defendant does not amount to deemed admission of fact of the written statement.

JUDGMENT :

Tarlok Singh Chauhan, J.

The appellants are the legal representatives of original defendant and aggrieved by the judgment and decree passed by the learned first appellate Court whereby it affirmed the judgment and decree passed by the learned trial Court, have filed the instant appeal.

2. The parties hereinafter shall be referred to as the "plaintiff" and the "defendant".

3. The plaintiff filed a suit for permanent prohibitory injunction on the ground that he along with other co-sharers was in possession of the suit land. The defendant being total strangers had no right, title or interest to interfere with the said possession and in case they were successful in such attempt during the pendency of the suit, then possession thereof be delivered to the plaintiff.

4. The defendant contested the suit wherein preliminary objections regarding cause of action, locus standi, estoppel, maintainability, limitation, non-joinder of necessary parties and valuation etc. were taken. On merits, it was averred that the plaintiff was not owner in possession of the suit land. It was the defendant, who was in possession of the suit land as a co-sharer and had constructed one 'Palli' over the same in the year 1966-67. The defendant further averred that he did not intend to raise any fresh construction, therefore, the suit should be dismissed.

5. Out of the pleadings of the parties, the learned trial Court on 15.09.1992 framed the following issues:-

"1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction as prayed for? OPP.

2. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD.

3. Whether the suit is bad for non-joinder of necessary parties? OPD.

4. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD.

5. Whether the suit is barred by time? OPD.

6. Relief."

6. After recording evidence and evaluating the same, the learned trial Court decreed the suit and the judgment and decree so passed by the learned trial Court came to be affirmed by the learned first appellate Court, constraining the defendant to file the instant appeal.

7. On 03.04.2003, the appeal was admitted on the following substantial question of law:-

"Whether the Courts below have misread and misappreciated the evidence on record, more specifically the revenue record produced by the appellant-defendant to reject his claim that he is not the owner in possession of the suit land and to hold that the respondent-plaintiff is the owner in possession thereof?"

8. During the pendency of the appeal, an application being CMP No. 8744 of 2017 was filed by the appellant for framing of an additional substantial question of law, the same was accordingly allowed and on 26.10.2018 the following substantial question of law came to be framed:-

"(a) Whether impugned judgments and decrees passed by both the courts below are illegal, erroneous and perverse inasmuch as they ignored that no replication was ever filed by the respondent-plaintiff, specifically not controverting the defence taken by the appellant-defendant and as such admitting the same?" I have heard the learned counsel for the parties and have gone through the records of the case.

9. Since both the substantial questions of law are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by common reasoning.

Substantial Questions of Law No.1 and (a)

10. As observed above, the case of the plaintiff was simpliciter for injunction and, therefore, was determined and decided on the basis of the possession of the party. Though, it is the specific case of the plaintiff that he along with other co-sharers is in possession of the suit land, however, it needs to be noticed that the plaintiff himself on 31.10.1992 filed an application for appointment of a Local Commissioner and paras 5 and 6 whereof read as under:-

"5. That the plaintiff requested the defendant not to do any interference ov