HIGH COURT OF ORISSA: CUTTACK. W.P.(C) NO.19305 OF 2010 In the matter of an application under Article 227 of the Constitution of India. ------------ Niranjan Nath and others ……. Petitioners. -Versus- Rabindra Nath Sharma and others ……. Opposite Parties For petitioner : M/s. S.Mohanty, B.Mohanty, S.Pattnaik and B.Moharana. For Opp. Parties : M/s. A.P.Bose, R.K.Mohanta, P.K.Sahoo and A.K.Panda PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL ------------------------------------------------------------------------------------------- Date of argument – 21.12.2010 :: Date of judgment - 14.01.2011 ------------------------------------------------------------------------------------------- B.K.PATEL, J. In this writ application, petitioners have assailed the legality of order dated 8.10.2010 passed by the learned Civil Judge (Sr.Divn.), Jagatsinghpur in Title Suit No. 74 of 2002 rejecting their petition under Order 18, Rule 1 of the C.P.C. to direct the opposite parties to adduce their evidence before petitioners’ adduce their evidence. 2. Petitioners are the plaintiffs and opposite parties are the defendants in Title Suit No. 74 of 2002 which is a suit for partition. Plaintiffs’ case is that parties to the suit represent three branches of the joint family through Sankar, Basu and Bhasi, the grand sons of Laxman @ Trilochan, the common ancestor. Plaintiffs are descendants of Basu and Bhasi whereas defendants are descendants of Sankar. It is pleaded by the plaintiffs that, since there was increase in the number of family members, for convenience Basu and Bhasi were living separately in mess and residence without partition by metes and bounds of the suit properties over which there is unity of title and possession. In their written statement defendants have resisted the claim of partition. When the suit was pending for hearing, after settlement of issues, defendants filed petition under Order 18 Rule 1 of the C.P.C. in response to which the impugned order was passed. 3. It was contended by the learned counsel for the petitioners that in reply to plaintiffs’ assertion that suit properties were joint family properties, defendants have categorically pleaded in their written statement at paragraph-15 (f) that there has already been previous partition among Sankar, Basu and Bhasi. In such circumstances, defendants are obliged to begin the hearing in view of provisions under Order 18, Rule 1 of the C.P.C. In support of his contentions learned counsel for the petitioners placed reliance on the decision of this Court in 2 Purastam alias Purosottam Gaigouria and others vs. Chatru alias Chatrubhuja Gaigouria :1992 (I) OLR 72. In reply, it was submitted by learned counsel for the opposite parties that there is no quarrel over the proposition that when, in a suit for partition, defendants adopt the plea of previous partition, it is the defendants who are to begin adducing of evidence. It was, however, argued that in the present case the learned trial court on careful perusal of the pleadings of the defendants arrived at a finding of fact to the effect that the defendants have not pleaded previous partion of the entire joint family properties by metes and bounds. In such circumstances, the plaintiffs were rightly directed to adduce evidence first. Relying upon decision of this Court in Mirza Niamat Baig and another vs. Sk.Abdul Sayeed and others : 2008 (II) OLR 566, it was contended that where defendants admit only some of the facts alleged by the plaintiffs, and not all the material facts, it is for the plaintiffs to begin adducing of evidence. Learned counsel for the opposite parties also contended that by the time application under Order 18, Rule 1 of the C.P.C. was filed, plaintiffs had already filed affidavit evidence as required under Order 18, Rule 4 of the C.P.C. Therefore, it has to be construed that plaintiffs have already adduced part of their evidence for which defendants cannot be asked to adduce evidence in the midst of trial. 4. Dealing with the contentions made by the learned counsel for the parties to the effect that filing of affidavit evidence by the plaintiffs 3 under Order 18, Rule 4 of the C.P.C. amounts to beginning of adducing of evidence in terms of Order 18, Rule 1 of the C.P.C. for which the plaintiffs cannot be permitted to ask the defendants to begin the evidence first, it may be observed that right to begin as provided under Order 18, Rule 1 of the C.P.C. has nothing to do with the requirement of filing the examination-in-chief on affidavit as prescribed under Order 18, Rule 4 of the C.P.C. Order 18, Rule 1 of the C.P.C. refers to right of parties to begin. Order 18, Rule 4 of the C.P.C. requiring the parties to file affidavit caters to the convenience of the parties and is aimed at expeditious disposal of cases. Procedure for adducing evidence in examination-in- chief as provided under Order 18, Rule 4 of the C.P.C. cannot defeat rule of evidence conferring right to begin as provided under Order 18, Rule 1 of the C.P.C. Similar view has been taken by Delhi High Court in Kamal Kumar Modi and another vs. Krishan Saigal : AIR 2003 Delhi 349. 5. Order 18 of the C.P.C. regulates “hearing of the suit and examination of witnesses”. Rule 1 thereunder provides for “right to begin”. It reads: “The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.” 6. In the present case, plaintiffs as well as defendants admit that suit properties originally belonged to their common ancestor. Plaintiffs assert that defendants have pleaded prior partition in the 4 written statement at paragraph-15 (f). In course of hearing, it was contended by the learned counsel for the petitioners that defendants have pleaded prior partition also at paragraph-10 also of the written statement. It appears that paragraph-10 of the written statement contains defendants’ response to paragraph-6 of the plaint. At paragraph-6 it has been pleaded that since the suit properties were/are coparcenary joint undivided qua dwelling house, the parties are jointly possessing the same having their residential house, kitchen garden, threashing floor, tank etc. and over a portion they have got their ancestors’ tombs. While denying such averments at para-10 of the written statement the defendants have admitted that Sankar, Basu and Bhasi have separated in mess residence and property much prior to 1930 Sabik Settlement operations. However, while describing the true facts of the case at paragraph 15(f) of the written statement the defendants have pleaded: “That according to mutual arrangement and convenience amongst Sankar, Basu and Bhasi they had amicably partitioned the bari lands appertaining to plot No. 1108 and 1108/2285 and in this amicable partition side. Basu Nath possessed A0.04.05 dec. from middle and Bhasi Nath possessed the remaining A9.04 from southern side of the above Bari plots.” Thus, the defendants do not appear to have set up a clear case of prior partition of the entire suit properties by metes and bounds. 5 Paragraph-15 (f) of the written statement refers to amicable partition of bari land only. 7. As has been reiterated in Purastam alias Purosottam Gaigouria and others vs. Chatru alias Chatrubhuja Gaigouria (supra) whenever defendants take the plea of previous partition in a suit for partition they have to begin the adducing of evidence. However, in order to attract provisions under Order 18, Rule 1 of the C.P.C. directing defendants to begin the adducing of evidence, the defendants are required to admit all the material facts averred in the plaint and have to set up a clear case either in point of law and or on some additional facts alleged by the defendants which would disentitle the plaintiffs to any part of the relief claim in the suit. 8. In Mirza Niamat Baig and another vs. Sk.Abdul Sayeed and others (supra) it has been pointed out by this Court that a person who sets the law in motion and seeks a relief before the Court, must necessarily be in a position to prove his case and get the relief moulded by the law. The right to begin is to be determined by the rules of evidence. It was held : “As a general rule, the party on whom the burden of proof rests should begin. In no case, the plaintiff can be allowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plaintiff in the suit. In the wording “unless the defendant admits the facts alleged” occurring in Order 18, Rule, C.P.C., the word “facts” means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin.” 6 9. In the present case, upon scrutiny of the pleadings, it has been held by the learned trial court that the defendants have not pleaded specifically that there was a previous partition by metes and bounds. Upon reference to materials on record and principles of law adverted to above, I find no justification to interfere with such finding of fact recorded in the impugned order by invoking writ jurisdiction. 10. On perusal of the pleadings, there appears no scope to hold that defendants in the present case have admitted all the material facts averred in the plaint. There is dispute and basic difference between the parties with regard to their genealogy also. Defendants have denied the genealogy as pleaded by the plaintiffs. Plaintiffs plead that parties are descendants of Laxman @ Trilochan through his grand-sons Sankar, Basu and Bhasi. On the basis of such assertions 1/3rd share of the joint family properties has been claimed by original deceased-plaintiff no.1 and 1/3rd share of the joint family properties has been claimed by plaintiff nos.2 to 4. Defendants have pleaded the plaint genealogy to be wrong, incorrect and without any basis. Defendants’ stand is that parties are descendants of their common ancestor Dasarathi Nath who left behind two sons, namely, Rama Nath and Laxman Nath. According to them, plaintiffs are descendants of Laxman Nath whereas defendants are descendants of Rama Nath. Therefore, on the face of it plaintiffs’ claim of 2/3rd share over the suit properties is denied by the defendants. 7 11. In view of the above discussions, I find no merit in the contentions raised on behalf of the petitioners. Therefore, the writ, being without merit, is dismissed. ………………….. B.K. Patel, J. Orissa High Court, Cuttack, The dated 14th January,2011/Sethy 8