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2008(1) JLJ 356
A.M. Naik, J.
Jagram Shakya and others v. Gokul Prasad
Writ Petition No.4543 of 2005 (Gwalior);
Decided on 17.10.2007.
Earlier averments of the plaint were to the effect that an oral family partition took place between the plaintiff and defendants which was not in accordance with law. It was rather contrary to the law and is not acceptable to the plaintiffd`respondent. These averments were permitted to be substituted by way of amendment by the averments that it was decided between the plaintiff and defendants that the portions occupied by respective parties would remain in the user and enjoyment of the particular occupant until a partition amongst them takes place. [Para 8
Held: It may be seen that the plaintiff has nowhere accepted the alleged oral family settlement as a partition. On the contrary, he has expressly and specifically averred that the alleged family settlement was in violation of legal principles and the plaintiff is entitled to seek a decree for partition with respect to his 1/4th share in the suit property. There was no admission in absolute sense that an oral family settlement cum partition was effected. This being so, it cannot be said that the averments contained an admission of the nature which could not have been withdrawn. AIR 1977 SC 680, AIR 1998 SC 618 and 1975 JLJ SN 94 distinguished. [Para 10
(2) Evidence Act, 1872 -- S.31 -- admission is the best evidence that an opposing party can rely upon -- though not conclusive, is decisive of the matter unless successfully withdrawn or proved erroneous. AIR 1960 SC 100 followed. [Para 6
(3) Civil P.C., 1908 -- O.6 R.17 -- Evidence Act, 1872 -- Ss.18 and 31 -- admission in the plaint and written statement -- may be withdrawn or proved to be erroneous -- may also be explained by amendment of pleadings. (2001)8 SCC 97 followed. [Para 7
(4) Civil P.C., 1908 -- O.6 R.17 -- Evidence Act, 1872 -- S.18 -withdrawal of admission from pleadings -- not impermissible. 2006(III) MPWN 97 (SC) followed. [Para 7
(5) Hindu Law -- ‘family settlement‘ and ‘partition‘ -- are not synonymous -- partition causes severance of status of family as well as joint family property -- family settlement does not cause severance of status. [Para 9
(6) Civil P.C., 1908 -- O.6 R.17 -- amendment of pleading -- cannot cause failure of justice or irreparable injury to any party -- converse is possible. 2002(1) Supreme 40 followed. [Para 14
(7) Civil P.C., 1908 -- O.6 R.17 -- object is that Court should try merits of the case -- allow all amendments that may be necessary to determine real question in controversy. AIR 2006 SC 1647 followed. [Para 15
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && lk{; vf/kfu;e] 1872 && /kkjk 18 && okni= esa Lohd`fr vkR;afrd Hkko esa ugha && la‘kks/ku }kjk izR;kâr dh tk ldrh gSA okni= ds iwoZrj izdFku bl vk‘k; ds Fks fd oknh rFkk izfrokfn;ksa ds e/; ekSf[kd dkSVqafcd foHkktu gqvk tks fd fof/k ds vuqlj.k esa ugha FkkA og fu‘p; gh fof/k ds fo:) Fkk tks fd oknh@izR;FkhZ dks Lohdk;Z ugha gSA ;g izdFku bu izdFkuksa }kjk la‘kks/ku ds :i esa izfrLFkkfir fd, tkuk vuqKkr fd, x, Fks fd oknh rFkk izfrokfn;ksa ds e/; fofuf‘pr fd;k x;k Fkk fd Øe‘k% i{kdkjksa }kjk n[ky fd, x, Hkkx fof‘k‘V vf/kHkksxh ds mi;ksx rFkk miHkksx esa jgsaxs tc rd fd muds e/; foHkktu ugha gks tkrkA ¼iSjk 8 ¼2½ lk{; vf/kfu;e] 1872 && /kkjk 31 && Lohd`fr mÙke lk{; gS ftldk fojks/kh i{kdkj voyac ys ldrk gS && ;|fi fu‘pk;d ugha] ekeys dk fofu‘pk;d gS tc rd lQyrkiwoZd izR;kâr vFkok xyr lkfcr ugha fd;k tkrkA , vkb vkj 1960 ,l lh 100 vuqlfjrA ¼iSjk 6 ¼3½ flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && lk{; vf/kfu;e] 1872 && /kkjk 18 rFkk 31 && okni= rFkk fyf[kr dFku esa Lohd`fr && izR;kâr vFkok xyr lkfcr dh tk ldrh gS && vfHkopu ds la‘kks/ku }kjk Li"Vhd`r Hkh dh tk ldrh gSA ¼2001½8 ,l lh lh 97 vuqlfjrA ¼iSjk 7 ¼4½ flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && lk{; vf/kfu;e] 1872 && /kkjk 18 && vfHkopu ls Lohd`fr dk izR;kgj.k && vuuqKs; ugha gSA 2006¼3½ e-iz- ohDyh uksV~l 97 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 7 ¼5½ fganw fof/k && ^dkSVqafcd le>kSrk* rFkk ^foHkktu* && lekukFkhZ ugha gSa && foHkktu vfoHkDr laifÙk ds lkFk&lkFk dqVqac dh izkfLFkfr dk i`FkDdj.k dkfjr djrk gS && dkSVqafcd le>kSrk izkfLFkfr dk i`FkDdj.k dkfjr ugha djrkA ¼iSjk 9 ¼6½ flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && vfHkopu dk la‘kks/ku && U;k; dks foQy vFkok fdlh i{kdkj dks vlq/kk;Z {kfr dkfjr ugha dj ldrk && laifjorZu laHkkO; gSA 2002¼1½ lqizhe 40 vuqlfjrA ¼iSjk 14 ¼7½ flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && mn~ns‘; ;g gS fd U;k;ky; ekeys ds xq.kkxq.k ij fopkj djs && lafookn esa okLrfod iz‘u vo/kkfjr djus ds fy, vko‘;d laHkh la‘kks/ku vuqKkr djsA , vkb vkj 2006 ,l lh 1647 vuqlfjrA ¼iSjk 15
1. Plaintiff-respondent instituted a suit for partition and perpetual injunction with allegations that the plaintiff and defendants are children of a common father who owned a property situated at Naka Chandrabadni, Naharwali Mata Road, Lashkar, Gwalior. Their father died on 11.3.1977 in intestate condition. An oral family settlement was effected which was not in accordance with law. Plaintiff being owner to the extent of 1/4th share is entitled to his 1/4th share after effecting partition by metes and bounds. Decree for perpetual injunction has also been sought for restraining the defendants from alienating the disputed property with cut first effecting the partition and consequent allotment of 1/4th share to the plaintiff.
2. Defendants-petitioners submitted their joint written statement. They acknowledged their relationship as well as source of title. According to them, the family settlement was effected in due manner and the same was acted upon. Plaintiff is debarred from claiming any share contrary to the family settlement.
3. An application for temporary injunction was submitted by the plaintiff which was dismissed by the learned trial Judge as well as by the learned lower appellate Court in the light of family settlement. Thereafter, the plaintiff-respondent submitted an application under Order 6 rule 17 CPC for amendment at primary stage of the suit. By way of proposed amendment, plaintiff sought leave to delete the averments regarding oral family settlement. Instead, he sought leave to substitute averments to the effect that it was decided between the plaintiff and defendants that the parties would enjoy their respective portions which were possessed by them until a valid partition takes place. This application was opposed by the defendants-petitioners mainly on the ground that it amounts to withdrawal of admission.
4. Learned trial Judge by the impugned order 8.9.2005 marked as Annexure P-1 allowed the application on a cost of Rs.350/- on the ground that the proposed amendment is necessary for deciding the real controversy involved between the parties and the amendment may be permitted since the evidence of the parties had not commenced.
5. Shri Bharadwaj, learned counsel appearing for the petitioners contended that the plaint as well as the application for temporary injunction contained admission about the oral family settlement having taken place between the parties. This admission cannot be permitted to be withdrawn in the light of the law laid down by the apex Court in the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Co. [AIR 1977 SC 680], and Heeralal v. Kalyan Mal and others [AIR 1998 SC 618].
6. Before adverting to the citations relied upon by the learned counsel for the petitioners, I would like to refer to the decision of Hon'ble Supreme Court of India in the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others [AIR 1960 SC 100], wherein it has been held :
"An admission is the best evidence that an opposing party C4 rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous."
7. Aforesaid observation of the apex Court clearly goes to show that it is not an abstract law that an admission cannot be withdrawn at all in any case. On the contrary, it may successfully be withdrawn or even without such withdrawal may be proved to be erroneous. Similarly, the apex Court in the case of Estralla Rubber v. Dass Estate (P) Ltd. [(2001)8 SCC 97], has held that even if there were some admissions in the plaint as well as in the written statement it was still open to the parties to explain the same by way of filing an application for amendment of pleadings. Lastly, in the case of Baldev Singh and others v. Manohar Singh and another [2006(111) MPWN 97=(2006)6 SCC 498], Hon'ble Supreme Court of India has held to the effect that the withdrawal of admission from pleadings is not impermissible.
8. Now, it i
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