RSA 140/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The subject matter of challenge in the instant appeal is the judgment and order dated 23.9.2009 passed by the learned Civil Judge, Jorhat in Title Appeal No. 35 /05 affirming the judgment and order dated 3.8.2005 passed by the learned Trial Court in Title Suit No. 20/90 dismissing the suit of the appellants/ plaintiffs. I have heard Mr R Borpuzari, learned counsel for the appellants and Mr P P Baruah, learned counsel for the respondents. The pleaded case of the appellants/ plaintiffs in short is that they are the sons of Late Durgeswar Rajkumar who owned a plot of land measuring 3 Katha 3 Lecha. During his lifetime he allotted the aforementioned land to the appellan t No.1 who subsequently gifted a plot measuring 1 Katha 2 ‰ Lecha therefrom to h is brother Sunit Rajkumar, the appellant No. 2. According to the appellants/ pla intiffs, though their predecessor-in-interest on his death left behind his wife Damayanti Rajkumari and Amiya Baruah, they staked no claim on this land. The app ellants/ plaintiffs further averred that at the time of the partition/ allotment of the aforementioned land Gonesh Rajkumar, predecessor-in-interest of the resp ondents/ defendants agreed that a plot measuring 16 Lecha covered by Dag No. 489 7/5025(New)/2936(old) would be kept apart to be used as a passage for holding di fferent family functions. A passage of 12’ x 8’ was agreed upon by Gonesh Rajkum ar to be allowed over his land covered by Dag No. 5028 for the ingress and egres s of the residents/ family members of Durgeswar Rajkumar, predecessor-in-interes t of the appellants/ plaintiffs. It was further averred that with time the relat ionship between the parties deteriorated and Title Suit No. 46/84 was filed by A joy Rajkumar, son of Gonesh Rajkumar against the appellants. The appellants/ pla intiffs further alleged that taking advantage of their absence the respondents/ defendants encroached upon an area of land in Dag Nos. 5025 and 5029 and that th e passage originally measuring 12’ x 8’ was narrowed contrary to the letter and spirit of the agreement entered into between the parties. The respondents/ defendants entered appearance and filed their written s tatement whereafter issues were framed and on the basis of the pleadings of the parties and the evidence on record the suit was dismissed. The appeal preferred by the appellants/ plaintiffs having met the same fate, they are before this Cou rt seeking redress. Mr Borpujari has urged that as the respondents/ defendants in their writ ten statement did not categorically deny the averments bearing on the issues fra med in the suit, the learned Courts below fell in error in dismissing the same. According to him, the failure on the part of the respondents/ defendants to deny the averments made in the plaint carrying allegations of encroachment on the su it land and constriction of the passage amounted to admission on their part ther eof and that, therefore, the learned Courts below ought to have decreed the suit . In support of this plea, Mr Borpujari has relied upon a decision of the Apex C ourt in Lohia Properties (P) Ltd, Tinsukia, Dibrugarh, Assam -vs- Atmaram Kumar, (1993) 4 SCC 6. In reply, Mr Baruah while drawing the attention of this Court to the wri tten statement filed by the respondents/defendants, has urged with reference to Order 8 Rule 5 of the Code of Civil Procedure (for short, hereinafter referred t o as ’the Code’) that as the averments made in the plaint have been denied to th e extent necessary in law, this contention is wholly untenable. According to him , the averments made in the written statement read as a whole register a total d enial of the allegations of encroachment over the suit land and the narrowing of the passage as made by the appellants/ plaintiffs. According to the learned cou nsel, having regard to the evidence on record which totally belies the appellant s’/ plaintiffs’ pleaded case in the suit, no interference with the impugned judg ment and order is warranted. The pleadings on record to the extent necessary and the arguments advanc ed on behalf of the parties have been duly considered. Order 8 Rule 5 of the Cod e which enjoins specific denial by the defendant (s) in a suit vis-à-vis an alle gation of fact made in the suit mandates that on the failure of the defendant to do so either specifically or by necessary implication the same (fact) averred i n the plaint has to be taken to be admitted. Exception to this consequence is, h owever, available to a person under disability. This provision of the Code, ther efore, casts an obligation on the defendant in a suit to deny specifically or by necessary implication an allegation of fact made in the plaint, an omission whe reof may signify admission thereof against him. While construing this provision, the alternative forms of denial, namely, specific or implicit cannot be lost si ght of. This provision noticeably also requires the defendant to state a fact if denied to be not admitted by him in his written statement. A perusal of the written statement filed by the respondents/ defendants reveals their denial about the existence of an agreement, written or oral, with regard to the suit land as referred to in the plaint. They have pleaded as well in categorical terms that they have been enjoying their residential compound in its present site and area for last more than 20 years without any alteration the rein. They have averred as well the absence of any date on and from which they h ad allegedly dispossessed the appellants/ plaintiffs from the suit land. A conjo int reading of these averments made in the written statement leaves this Court w ith the impression that the statements made in the plaint relating to the allege d trespass by the respondents/ defendants on the suit land and the compression o f the passage have not been admitted by them. Having regard to the mode and mann er of denial permitted under Order 8 Rule 5 of the Code, this Court is, therefor e, left unconvinced on the tenability of the plea of admission of the respondent s as taken in the instant appeal. The decision of the Apex Court in Lohia Proper ties (P) Ltd. is clearly distinguishable on facts. The issue therein that confro nted the Apex Court was whether the service of notice terminating the tenancy be tween the parties had been proved on admission or not. Their Lordships while rec iting the text of para-7 of the plaint detailing the necessary facts with regard to the notice recorded the reply in para-5 of the written statement in the foll owing terms: That the notice of ejectment as referred to in para 7 of the plaint is not acco rding to law. . It is in this context that the Apex Court held that Order 8 Rule 5 of th e Code was attracted in the facts of the case which proved service of notice by admission. The impugned judgment and order records a categorical finding of the lea rned Courts below that the appellants/ plaintiffs had been in course of the surv ey of the suit land found to be in occupation of an area more than what they wer e entitled to. This, according to the learned Courts below, belied the allegatio n of trespass and encroachment by the respondents/ defendants on the suit land. According to the learned lower Appellate Court, the evidence adduced by the appe llants/ plaintiffs was not adequate enough to prove the agreement vis-à-vis the passage. Having regard to the plea urged in the instant appeal as well as the ple adings and the evidence on record which have been duly taken note of by the lear ned lower Appellate Court, I am of the unhesitant opinion that no interference w ith the impugned judgment and order in the exercise of power under Section 100 o f the Code is warranted in the facts and circumstances of the case. The appeal lacks in merit and is dismissed. No costs.