(1) WP. 5823.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5823 OF 2010 Mohd. Mashiuddin S/o Jahiruddin Inamdar .. PETITIONER VERSUS Mohd. Bashiruddin S/o Mohd. Jahiruddin and ors. .. RESPONDENTS Mr. Laxmikant Patil, Advocate for the Petitioner ... CORAM : V.R. KINGAONKAR, J. DATED : 13TH JULY, 2010 ORAL ORDER:- 1. Heard learned counsel. 2. The following issues were framed in the suit bearing R.C.S. no. 284 of 2006: " ISSUES 1. Do defendants no.1 and 2 prove that partition of the suit land had been effected between defendant no.1 and plaintiffs? 2. Is plaintiff entitled to partition and separate possession of suit land? If yes, what would be his share? (2) WP. 5823.2010 3. Does defendant no.5 prove that he is bonafide purchaser for value? 4. What Order and Decree?" 3. The learned Civil Judge directed by the impugned order dated 29.12.2009 that the petitioner shall adduce evidence firstly. Contention of the counsel for the petitioners is that such direction cannot be issued inasmuch as right to begin is governed by Order 18 Rule 1 of the Code of Civil Procedure - "The plaintiff must adduce evidence in the first instance". The right to begin is given to a party on whose shoulder the burden of proof is placed. The provision of Order 18 Rule 1 of the Code of Civil Procedure cannot be isolatedly read. It has be considered alongwith section 101 and 102 of the Evidence Act. The litmus test is as to who would fail, if no evidence is adduced. In the present case it is an admitted fact that the properties are joint and the partition cannot be claimed. The defendants 1 and 2 i.e. the petitioners further allege that the (3) WP. 5823.2010 suit land had been partitioned earlier. So, if the earlier partition is not proved, it goes without saying that the plaintiff may not adduce any further evidence and therefore by virtue of section 101 and 102 of the Evidence Act there may be a decree in his favour. The notice issued regarding bonafide purchase is required to be proved by defendant no.5 and burden thereof is not on the plaintiff. 4. In this view of the matter, no interference is called for. Petition disposed of. Sd/- [V.R. KINGAONKAR, J.] arp