Smt. Manorama Chhotray vs Sri Prafulla Kumar Chhotray and Another

Dr. B.R. Sarangi, J.—This application has been filed challenging the order dated 08.10.2012 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Civil Suit No. 110/2011 rejecting the application of the plaintiff-petitioner under Order 18 Rule 1, C.P.C.

The fact of the case is that the petitioner being the plaintiff filed Civil Suit No. 110/2011 in the Court of learned Civil Judge (Senior Division), Bhubaneswar for partition of the suit land by metes and bounds. The suit land is the joint undivided property of the family and the same has not been partitioned by metes and bounds between the parties. The plaintiff-petitioner claims half share in the suit land along with her children.

The defendant-opposite parties on being noticed appeared through their counsel and filed their written statement denying the plaint allegations. They pleaded specifically in paragraph-8 of the written statement that after the death of Madan Mohan his properties were partitioned among his three sons and the same have been recorded separately vide Mistake No. 147 and 563 and accordingly Settlement R.O.R. vide Khata No. 19 recorded in the name of Anathabandhu and Khata No. 11 recorded in the name of Antrajyami and Prafulla. Though some properties were recorded jointly in the name of Anathabandhu, Antrajyami and Prafulla, yet the same were also partitioned and the parties are in separate possession.

Taking into account the averments made in paragraph-8 of the written statement, the plaintiff-petitioner stated that the defendant-opposite parties have taken a plea of prior partition in the written statement and therefore, he filed an application vide Annexure-3 under Order 18, Rule - 1 C.P.C. to direct the defendant-opposite parties to lead their evidence first.

Defendant-opposite parties filed objection to the said application filed by the plaintiff-petitioner under Order 18, Rule, 1 C.P.C. Learned Civil Judge (Senior Division), Bhubaneswar after hearing the parties passed the impugned order dated 08.10.2012 rejecting the application filed by the plaintiff-petitioner. Hence this writ petition.

Mr. Baug, learned counsel for the plaintiff-petitioner strenuously urged that since there is prior partition as per the pleadings averred in paragraph-8 of the written statement, the burden lies on the defendants to establish such prior partition. Therefore as per the provisions contained under Order 18, Rule 1 C.P.C., the defendant-opposite parties should begin first and the learned Court below while rejecting the application has committed gross error in stating that the contention of the present plaintiff-petitioner that the defendants pleaded previous partition of the suit property has been denied by the defendant-opposite parties which is based on wrong factual matrix. Rather it is contrary to the pleadings made in paragraph-8 of the written statement. To substantiate his contention he has relied upon the judgment of this Court in the case of Purastam alias Purosottam Gaigouria and Others Vs. Chatru alias Chatrubhuja Gaigouria, where in it is held that in a suit for partition on the ground of joint family property if the defendants plea is of previous partition then defendant has to begin adducing evidence and the right to begin is an integral part of a suit for which reliance is placed on Balakrishna Kar and Another Vs. H.K. Mahatab, , Baidhar Behera and Others Vs. Pranabandhu Maharatha, , Debara Barik v. Surya Kumar Dev & another, >ILR 1979 Cut. 879, Sudarsan Mohapatra and another v. Prasanna Kumar Mohapatra, >1990 (I) OLR 153.

Mr. Mahadev Mishra, learned Counsel for the defendants-opposite parties stated that where the parties have not admitted the prior partition, in that case burden lies on the party who should begin to approach the Court by filing the application meaning thereby it is the plaintiff-petitioner who has the right to begin as the burden lies on him to establish the contention of partition. In order to substantiate his case, he has relied upon the judgment of this Court in the cases of Mirza Niamat Baig and Another Vs. Sk. Abdul Sayeed and Others, and AIR 2011 Orissa 190 .

In view of the above pleadings of the parties and after hearing their learned counsel, the sole question that emerges for consideration is who has got the right to begin under Order 18, Rule 1 C.P.C. The Order 18 Rule 1 of C.P.C. reads as follows:

Right to begin - 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.

This Court in the case of Chittaranjan Das v. Janaranjan Das & others, >84 (1997) CLT 296 held that plaintiff in all cases has the right to begin, exception being that when the defendant admits the facts and contends either in the point of law or on some additional facts alleged by the defendants the plaintiff is not entitled to any part of the relief which he seeks in the suit and in that event only the defendants is to begin. Therefore, in normal course, it is the plaintiff who in all cases has the right to begin. If the exception point takes into consideration, then in that case it is to be examined in the context of the case in hand whether the plaintiff is to begin or defendant is to begin. In paragraph-8 of the written statement it is specifically pleaded that after death of Madan Mohan his properties were partitioned among his three sons and that has been recorded separately vide Mistake No. 147 and 563 and accordingly Settlement ROR vide Khata No. 19 recorded in the name of Anathabandhu and Khata No. 11 recorded in the name of Antrajyami and Prafulla. Though some properties were recorded jointly in the name of Anathabandhu, Antrajyami and Prafulla, yet the same were also partitioned and the parties are in separate possession. The specific pleading in the written statement is that there was a prior partition amongst the sons of Madan Mohan, namely, Anathabandhu, Antrajyami and Prafulla. The plaintiff-petitioner belongs to the branch of Anathabandhu whereas the present defendant-opposite parties belongs to the branch of Prafulla. The reference made by the learned counsel for the petitioner in Purastam alias Purusottam Gaigouria and others (supra) wherein it is categorically held that the right to begin is an integral part of hearing. The party who would fail in case he leads no evidence has the right to begin. Similar view has also been taken in Balakrushna Kar and another, Baidhar Behera and others, Debara Barik, Sudarsan Mohapatra and another (supra). It has also been clarified in Sudarsan Mohapatra (supra) that right to begin is not the same as the adducing in support of a party''s case. There is a distinction between the two. Trial Court ought to call upon the plaintiff first to adduce evidence and in case he declines then to call upon the defendant to express whether he would begin his case. If neither party express their desire to begin the case first, trial Court to post the case for hearing arguments on the basis of pleadings and other admissible materials on record depending presumptions under the Evidence Act and other laws. The procedure has been clarified by the above judgment. The plaintiff-petitioner relies upon Purastam alias Purusottam Gaigouria and others (supra) in which the plaintiff alleged the property is joint family property and half not been divided by metes and bounds and the defendant pleaded previous partition to defeat the plaintiff''s suit. The plaintiff''s plea that the property was joint family property having been admitted by the defendant and the latter having pleaded previous partition the defendants are to lose if neither party adduced evidence, the burden being on the defendant to prove previous partition, it is right to call the defendant to begin first. In the present context, referring to paragraph-8 of the written statement of the defendant, Mr. Baug, learned counsel for the petitioner strenuously urged that since there is a pleading of prior partition of the property, the right to begin rests on the defendants and not with the plaintiff.

Mr. Mahadev Mishra, learned Sr. Counsel for the defendant opposite parties relies also upon Mirza Niamat Baig and another (supra) wherein it has been held 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. But factually it is stated that as the plaintiff has raised the question of fraud to have been practiced on him, it is he who should begin first as per the provisions contained in Order 18 Rule 1 C.P.C. and defendants shall adduce rebuttal evidence thereafter. He further relies upon Niranjan Nath and others (supra) wherein this Court has held that right to begin as provided under Order 18 Rule 1 of C.P.C. has nothing to do with the requirement of filing the examination-in-Chief on affidavit. Order 18, Rule 1 of C.P.C. refers to right of parties to begin whereas Order 18, Rule 4 of C.P.C. deals with the requirement to file affidavit as prescribed under the said Rule which caters to the convenience of the parties and is aimed at expeditious disposal of cases. Therefore, the procedure for adducing evidence in examination-in-chief as provided under Order 18, Rule 4 of C.P.C. cannot defeat rule of evidence conferring right to begin as provided under Order 18, Rule 1 C.P.C.

The judgments cited by Mr. Mahadev Mishra, learned Senior Counsel for the opposite parties in Mirza Nizmat Baig and another and Niranjan Nath and others mentioned supra are not applicable to the present context in view of the fact that both the cases have been decided on their own merits basing upon the facts of the respective cases. On the basis of the specific pleading made available in paragraph-8 of the written statement, the opposite party-defendants having raised the plea of prior partition, the burden lies with him to establish the same. Therefore, the reason assigned in the impugned order that though the contention of the plaintiff is that the defendants pleaded previous partition, the same has been denied by the defendant, not correct on the basis of the materials available in the record. However, it is observed in the impugned order "in the instant case defendants have admitted only some of the facts alleged by the plaintiff regarding earlier partition". Having come to such a finding the learned Civil Judge (Sr. Division), Bhubaneswar could not have rejected the application filed by the plaintiff-petitioner under Order 18, Rule 1 C.P.C. to call upon the defendants to begin and such decision of law decided by this Court in Purastam alias Purosottam Gaigouria and others (supra). Even though the said judgment was cited but the learned Civil Judge (Sr. Division), Bhubaneswar has not applied his mind in proper perspective and rejected the application filed under Order 18, Rule 1 C.P.C. to call upon the defendants to begin. In the instant case, defendants have admitted some of the facts alleged by the plaintiff regarding earlier partition. Therefore, the application under Order 18 Rule 1 filed by the plaintiff, could not have been rejected on a flimsy ground.

For the foregoing reasons, the impugned order so passed on 08.10.2012 by the Civil Judge (Senior Division), Bhubaneswar under Annexure-4 is hereby set aside, and it is directed that the defendant-opposite parties should begin with the proceeding in accordance with law to establish the earlier partition as admitted in paragraph-8 of the written statement.

With the above observation and direction, the writ petition is allowed. indicating the above.