1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.695 OF 2010 Ganpati Rama Jagdale and another. ..Petitioners -VERSUS- Ram Vithoba Jagdale and others. ..Respondents ....... Mr.N.V. Gaware, advocate for petitioners. ....... (CORAM : V.R.KINGAONKAR,J.) DATE : 14th July, 2010. PER COURT : 1. Heard learned counsel. 2. The learned Civil Judge (J.D.), Omerga directed the defendants to commence their evidence by the impugned order dated 05.01.2007 in the suit (R.C.S. No.300/2003). 3. The suit filed by the respondent nos.1 to 3 is for partition and separate possession. The petitioners' case is that the house property was partitioned previously and so also lands were divided in life time of deceased Vithal Rama Jagdale. Needless to say, burden to prove such previous partition is casted on the 2 petitioners. 4. It is quite true that the petitioners shall begin their evidence in view of Order 18 Rule 1 of the Civil Procedure Code. The provisions of Order 18 Rule 1 and 2 of the Civil Procedure Code deal with "Right to begin" and the party having such right may commence the process of adducing evidence. Infact, such a party is given right to begin because that party would be put advantageous position by calling leave to adduce rebuttal evidence after the evidence of other parties is closed and something is required to be further explained or proved. 5. The provisions of Order 18 Rule 1 and 2 of Civil Procedure Code can not be isolated read. In the course of trial, modus-operandi and the burden to prove the fact will navigate the trial procedure as per Section 101 and 102 of the Evidence Act. It is well settled that party having burden to prove a particular fact if will not adduce any kind of evidence, the result would be of failure. For example, if the plaintiff is burdened with certain proof in respect of issue and will not adduce evidence, the suit may fail due to failure to discharge the burden. Similarly, if the facts are admitted and decree can not be rendered on the admitted facts due to particular defence raised by the defendants, then burden will be 3 on the defendant to prove that fact. The petitioners are at liberty to avoid the compliance of the impugned order and direction that they shall begin with the evidence may be ignored by them. However, if they will not adduce any evidence regarding earlier partition, the trial Court may decide the suit as may be permissible under Law. With these observations, Petition is disposed of. (V.R.KINGAONKAR) JUDGE gas/wp695.10