HON’BLE SRI JUSTICE R. SUBHASH REDDY Civil Revision Petition No.3362 of 2009 Order: This civil revision petition, under Article 227 of the Constitution of India, is filed by the defendants in the suit in O.S.No.300 of 2003 on the file of the learned III Additional Senior Civil Judge (FTC), Warangal, aggrieved by the order dated 09-02-2009. By the impugned order, while entertaining the memo filed by the respondent-plaintiff, the court below directed the petitioners-defendants to lead evidence in the trial. Originally, the petitioners herein filed suit in O.S.No.1362 of 2002 against the respondent for mandatory injunction. The said suit was re-numbered as O.S.No.79 of 2008. Subsequently, the respondent herein filed suit for partition against the petitioners herein in O.S.No.300 of 2003. The aforesaid two suits are clubbed for joint trial. At that stage, the respondent-plaintiff filed memos dated 21-07-2008 and 05-01-2009 stating that, having regard to the issues framed, initial burden lies on the petitioners to commence the trial. The court below, by recording such memos filed by the respondent, ordered to lead evidence by the petitioners- defendants. In this civil revision petition, it is submitted by learned counsel for the petitioners that though the suit filed in O.S.No.300 of 2003 is a comprehensive suit, the court below, without recording any valid reason, by merely entertaining the memos, ordered to lead evidence by the petitioners- defendants. It is submitted that as much as the respondent- plaintiff has claimed partition, it is for her to begin the trial; but, the court below, without recording any valid reason, ordered to lead evidence by the petitioners-defendants. On the other hand, it is submitted by learned counsel for the respondent-plaintiff that having regard to the issues farmed, burden is on the petitioners-defendants to commence the trial; as such the court below has rightly ordered to lead evidence. The learned counsel, in support of his submissions, referred to provisions under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 and Sections 101 and 102 of the Indian Evidence Act, 1872. As per the pleadings in O.S.No.3 of 2003, it appears, the court below has framed the following issues for trial: 1. Whether the defendants are the exclusive owners and possessors of the plaint schedule property? 2. Whether the plaintiff is entitled to claim partition of the schedule property? 3. To what relief? In view of the claim made by the respondent-plaintiff, there appears no reason to direct the petitioners-defendants to begin with the evidence. Even in case where burden lies on the other side, on some of the issues framed in the suit, the plaintiff has an option either to produce evidence on those issues or to reserve it by way of answer to the evidence produced by the other side, in view of the provision under Order XVIII Rule 3 CPC, but at the outset defendants cannot be called to lead evidence, having regard to all the issues framed in the suit. In view of the issue, namely whether the plaintiff is entitled to claim partition of the suit schedule property, the respondent-plaintiff has to lead evidence. I have perused the issues framed in both the suits. On a perusal of the said issues, it cannot be said that the burden lies on the petitioners-defendants to prove their case on all the issues framed in the said suits. The court below, without recording any valid reason, has recorded the memos filed by the respondent-plaintiff and ordered to lead evidence by the petitioners-defendants. For the aforesaid reasons, I am of the view that the order under challenge is liable to be set aside. Accordingly, the order dated 09-02-2009 is set aside. The civil revision petition is allowed to the extent indicated above. It is open to the respondent-plaintiff to lead evidence to prove her claim. No order as to costs. ____________________ R. SUBHASH REDDY, J. October 29, 2009 MRR