SCA/12808/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12808 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SULEMAN MOHMED UMAR ALI CHHABU & 2 - Petitioner(s) Versus GULAM AHMED UMARJI ALI CHHABU THROUGH POA HANIF GULAM AHMED & 9 - Respondent(s) ========================================================= Appearance : MR S TRIPATHY for Petitioner(s) : 1 - 3. MR MM SAIYED for Respondent(s) : 1, None for Respondent(s) : 2 - 10. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/10/2008 ORAL JUDGMENT 1. Rule. Shri M.M. Saiyed, learned advocate waives service of notice of rule on behalf of the respondent No. 1 original plaintiff. Presence of SCA/12808/2008 2/5 JUDGMENT respondent Nos. 2 to 10 in the present Special Civil Application is not required and, therefore, Shri Tripathi, learned advocate for the petitioners seeks permission to delete the respondent Nos. 2 to 10, so far as the present Special Civil Application is concerned. Permission is accordingly granted. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners original defendant Nos. 1/1 to 1/3 have prayed for an appropriate writ, direction and/ or order quashing and setting aside the order passed by the learned 4th Additional Senior Civil Judge, Bharuch dated 9.7.2008 below Exh. 151 in Regular Civil Suit No. 45 of 1996, by which the learned trial Court has allowed the said application submitted by the original plaintiff No. 1 by directing the defendants more particularly, the petitioner herein to enter the witness box first and prove that properties are already partitioned. 3. Shir Tripathi, learned advocate appearing for the petitioners has vehemently submitted that impugned order passed by the learned trial Court SCA/12808/2008 3/5 JUDGMENT is absolutely illegal and contrary to the provision of the Code of Civil Procedure and the Evidence Act. It is submitted that normally the plaintiff has to first enter into the witness box to prove his case and thereafter the burden to prove other way round will be upon the defendants. It is submitted that even considering the issues and additional issues framed, plaintiff has to first prove and establish by leading proper evidence that the properties in question are the ancestral undivided properties and thereafter only the burden will be upon the defendants to prove that the partition has taken place and for that purpose plaintiff has to first enter into the witness box. 4. Shri M.M. Saiyed, learned advocate for the respondent No.1 has submitted that if plaintiff has to first enter the witness box, in that case it may be clarified issue No. 1 is divided into two parts one with respect to the property being ancestral undivided property and second is whether partition with respect to those properties has taken place or not. It is submitted that in view of the additional issue framed and the assertion on the part of the defendants that partition has already taken place, they will have to enter the witness box to prove that. However, he has also conceded that so SCA/12808/2008 4/5 JUDGMENT far as part of the issue No. 1 is concerned the burden would be upon the plaintiff to first enter witness box and prove by leading proper evidence that the properties for which the partition is sought are ancestral undivided properties. 5. Having heard the learned advocates for the respective parties and considering the original issue framed at Exh. 66 and additional issue and the impugned order, it appears that so far as issue No. 1 is concerned it can be divided into two parts (i) Whether the plaintiff proves that the properties for which the partition is sought are ancestral undivided properties and (ii) Whether the partition with respect to the said has taken place or not?. So far as the first part of the said issue is concerned the burden will be upon the plaintiff to prove that the properties are ancestral undivided properties and for that purpose plaintiff has to first enter the witness box and lead the evidence. Thereafter, so far as the second part of the first issue and the additional issue which is already framed i.e. whether partition with respect to the said properties has taken place or not? is concerned, the burden will be upon the defendants as the defendants are asserting that the partition has already taken place and for that purpose they have to enter witness box for that issue. Under SCA/12808/2008 5/5 JUDGMENT the circumstances, the impugned order passed by the learned trial Court passed below Exh. 151 is hereby modified to the extent that the issue whether the properties in question and/ or which properties are ancestral undivided properties, the burden will be upon the plaintiff and they have to enter witness box first and thereafter the onus will shift upon the defendants to prove that whether the partition has taken place or not and for that purpose only they have to enter the witness box. 6. With these, the present Special Civil Application is disposed of. Rule is made absolute to the aforesaid extent. (M.R.SHAH,J.) kaushik