JUDGEMENT

This second appeal under section 100 of the Code of Civil Procedure has been filed by the appellants/plaintiffs no.1, 3 & 4 against impugned judgment and decree dated 19.2.2019 passed by Second Additional District Judge, Mandla in Regular Civil Appeal No.48-A/2015 [Jham Singh and others Vs. Rewa Singh and others] whereby the appeal of the appellants/plaintiffs has been dismissed and the judgment and decree dated 03.7.2013 passed by Civil Judge Class-II, Nainpur, District Mandla dismissing the Civil Suit No.51-A/2012 has been affirmed.

2 . Facts of the case, in short, are that progenitor of family of the appellants/plaintiffs was Chinna, who had three sons, namely Jhalku, Chhotelal & Gobara. Two daughters were born to Jhalku and his wife-Jhumiki Bai, namely, Jhunni Bai and Guddi Bai. The elder daughter had married to Lakkhu and had four sons. The respondents are sons of Chhotelal and Gobra. The appellants/plaintiffs filed a suit for declaration, injunction and possesion on the ground that Chinna had partitioned his land between three sons and the land which fell in the share of Jhalkhu is the suit land. The respondents submitted that daughter of Jhalkhu did not get the suit property as per their customs.

3 . Both the courts have held that title of Jhalkhu and customs between the parties are not proved. The suit has been found to be time barred and accordingly, the suit of the plaintiffs has been dismissed.

4 . This second appeal has been filed on the ground that both the courts have failed to appreciate that respondents did not specifically deny the pleadings of the plaint and, therefore, they are deemed to be admitted. The defendants have not stated as to how the suit property came in their possession.

On perusal of Exhibit-P/1 it can be seen that plaintiffs are in possession of the suit property, therefore, their title should be recognized and if the custom is not proved then right shall accrue as per Hindu Succession Act. It has not been appreciated by the trial Court that respondents are co-owners in the properties o f Jhalkhu.Therefore, the suit cannot be held as time barred. Hence, it is submitted that appeal be allowed and suit be decreed after admitting it for final hearing.

. Heard learned counsel for the appellant on the question of admission. Learned counsel for the appellants submitted that in the light of section 3 of Evidence Act and in view of Order 8 Rule 5 CPC in the absence of specific denial the pleadings shall be held to be admitted as has been held in the case of Jahuri Shah and others Vs. Dwarka Prasad Jhunjhunwala and others, AIR 1967 SC 109.

6. The appellants/plaintiffs have lost in both the courts viz trial Court as well as first appellate Court. As far as question of specific denial is concerned the plaintiffs have not filed lineage of his family. Thus, the plaintiffs themselves failed to give clear and complete family tree. From perusal of family tree as submitted on page No.2 of the plaint before the trial Court it is reflected that certain corrections are made therein by hand, therefore, it is wrong to expect from defendants to make specific denial. It is to be noted that suit is not for partition but for declaration and possession. Therefore, ground of the appellants that defendants are co-owners in the suit property has been raised for the first time. Both the courts have valued the pleadings and evidence very minutely.

7. In paragraph 5 of the plaint it is mentioned that on 23.6.2012 there was 'Panchayat' but it is not clear whether it was in the year 2012 or 1912. It is mentioned in this 'Panchayat' that defendant No.1-Vardi was also called, but Vardi is not a party in the suit and in family tree it is not shown. Plaintiff No.1- Jham Singh has mentioned his father's name as "Halku" but later on it was corrected as "Tantu", as can be gathered from cause title and verification of paragraph of plaint and there is no initial over the corrections s