DESAI, C.J. : This second appeal has been referred to a Full Bench because of a conflict between Manohar Lal v. Benares Bank Ltd., AIR 1947 All 245 and Veeravya Vandayar v. Sivagami Achi, AIR 1949 PC 319.

2. The suit giving rise to this appeal was instituted by the respondent against the appellant for the recovery of a mortgage debt. It was contested by the appellant on several grounds including the grounds that "the defendant is an agriculturist within the meaning of U.P. Agriculturists' Relief Act ...... and the plaintiff did not give to him a copy of the mortgage deed and consequently he is not entitled under the law to recover interest" and that the plaintiff was a creditor and he did not keep an account and did not give to him a statement of the account and is, therefore, not entitled to costs of the suit Neither did the respondent file a replication nor did the trial court examine the parties under O. 10, R. 1, C.P.C. Under R. 1 it was obligatory upon it to ascertain from the respondent or his pleader whether he admitted or denied such allegations of fact as were made in the written statement and as were not expressly or by necessary implication admitted or denied by him and to record such admission and denials. The allegations made by the appellant that he was an agriculturist, and that the respondent was a creditor, within the meaning of the U.P. Agriculturists' Relief Act No. 27 of 1934 was an allegation partly of fact and partly of law.

According to the law of pleadings the appellant's duty was to plead only the facts; he should have pleaded the facts on the basis of which he claimed the legal status of an agriculturist and assigned the legal status of a creditor to the respondent. The written statement was undoubtedly defective inasmuch as it did not allege the facts on the basis of which the status of agriculturist was claimed for himself and that of creditor for the respondent. The trial court ought to have called upon him to amend his written statement by alleging the facts on the basis of which the status was claimed for each of the parties. After requiring the appellant to allege the facts it should have called upon, as required by O. 10, R. 1, the respondent to admit or deny them. The plaint filed by him did not expressly or by necessary implication admit or deny them; he could have filed the plaint in the form in which it was filed whether he admitted or denied the facts on the basis of which the status of agriculturist and creditor was claimed and alleged by the appellant. Even though the allegations made by the appellant about his being an Agriculturist and the respondent's being a creditor were allegations partly of fact and partly of law and the trial court had failed to get the fact portion separated from the law portion, it was bound to inquire of the respondent whether he admitted or denied the fact portion of the allegations. It did not do so and the reason given by it that "pleadings are clear as the suit is on the basis of mortgage" is not only factually incorrect but also insufficient. The written statement was not clear as explained earlier, there being no statement of the facts on the basis of which the status of agriculturist and creditor was claimed and alleged. Further, even if the pleadings were clear, R. 1 of O. 10 was mandatory and the respondent had to be asked whether he admitted or denied the claim made by the appellant in the written statement. The trial court proceeded at once to frame issues and the first issue was :

"Whether the defendant is an agriculturist and the plaintiff a creditor within the meaning of Ag. R. Act and D. R. Act ?"

Subsequently it recorded evidence of the parties. The appellant himself came in the witness-box and deposed, inter alia, that he had a plot of land for which he paid Rs. 6/13/- as rent, he was cross-examined on behalf of the respondent but not a single question was put to him about his paying income-tax or his being assessed to income-tax or his h