Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 531 (MAD)

K. Shanmugha Gandhi v. K. Venugopal & Others

2009-02-12

G.RAJASURIA

body2009
Judgment : This civil revision petition is filed against the order dated 31. 2006 passed in I.A.No.21 of 2006 in O.S.No.9 of 2005 by the Additional District and Sessions Judge, Gobichettipalayam. Inveighing the order dated 31. 2006 passed in I.A.No.21 of 2006 in O.S.No.9 of 2005 by the Additional District and Sessions Judge, Gobichettipalayam, this civil revision petition is focussed. 2. The nutshell facts absolutely necessary and germane for the disposal of this revision petition would run thus:- The respondent herein, as plaintiff, filed the suit O.S.No.2853 of 2007 before the District Judge, Erode, seeking the following reliefs: (a) for partition of schedule 1 and 4 of the suit properties fully described in the schedule here under into 6 equal shares and for separate possession of one such share to the plaintiff; (b) for partition of schedule 2 and 3 of the suit properties fully described in the schedule here under into 18 equal shares by metes and bounds and with reference to good and bad soil and for separate possession of 7 such contiguous shares to the plaintiff." The 5th defendant/revision petitioner entered appearance and filed his written statement. When the suit was ripened for trial, it appears I.A.No.21 of 2006 was filed by the plaintiff under Order 18 Rule 1 read with Section 151 of C.P.C. seeking the following relief: "to direct the 5th respondent to begin his case and thereby render justice." The lower Court also directed the 5th defendant to adduce evidence at the first instance during trial. 3. Being aggrieved by and dissatisfied with the said order, this revision is focussed by the 5th defendant on various grounds inter alia contending that throwing to winds the basic principle of law that the burden of proof is on the plaintiff to prove his case, the lower Court simply directed the D5 to adduce evidence, on the sole ground that D5 relied upon a Will. 4. Heard the learned counsel for the petitioner. Though the respondents were served and their names also are found printed in the cause list, nonetheless there is no representation for the respondents. 5. The perusal of the records would display and disclose, convey and demonstrate that the lower Court simply misdirected itself on the sole ground that D5, who pleaded based on the Will-dated 4. 1994 should prove his case. 5. The perusal of the records would display and disclose, convey and demonstrate that the lower Court simply misdirected itself on the sole ground that D5, who pleaded based on the Will-dated 4. 1994 should prove his case. No doubt, the propounder of the Will alone should prove the genuineness of the Will, in accordance with law. But it does not mean that the plaintiff is absolved from proving his case at the first instance. 6. The bare perusal of Sections 101 and 102 of the Indian Evidence Act would clearly indicate and spot light that the burden of proof is on the plaintiff to prove the case. As per Order 18 Rule 1 of C.P.C. the plaintiff alone should commence the trial; however, there is an indication in the said provision that if 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, then only the defendant has the right to begin. .7. In this case, the plaintiff filed the plaint alleging that he is entitled to partition of the suit properties in respect of the items mentioned therein as the son of the deceased propositus, namely, Krishnasamipillai; D5 is the brother and D1 is the mother and defendants 2 to 4 are the sisters of the plaintiff. Whereas, D5 filed the written statement admitting the relationship among the parties to the proceedings, but contending that the plaintiffs claim relating to schedule III of the properties is not correct. As such, it is just and proper to extract hereunder the relevant portion of paragraph 8 of the written statement of D5, for ready reference. ."8. . . . .The plaintiff suppressed the material fact as if only 67 cents has been allotted in resurvey number 68/1 to his father under the partition deed dated 26. 1980. The sale consideration of the said transaction was totally utilised by the plaintiff for his personal debts and this defendant did not questioned the same because the plaintiff seems to be an eldest son of the family. 1980. The sale consideration of the said transaction was totally utilised by the plaintiff for his personal debts and this defendant did not questioned the same because the plaintiff seems to be an eldest son of the family. Hence, the plaintiffs suit for partition with regarding the schedule III of the property is not correctly be described in the suit and the purchasers of the aforesaid sale has to be impleaded as party to the proceedings, otherwise, the suit has been dismissed on that score that non-joinder of necessary parties." .8. In paragraph 10 of the written statement of the 5th defendant he would contend that the deceased Krishnasamipillai executed the Will bequeathing the first schedule of the property in favour of D5 and the Schedules II and III in favour of the plaintiff, an excerpt from it would run thus:- ."10. . . . . . As a matter of fact the father of the plaintiff and this defendant executed a will dated 4. 1994 in a sound disposing state of mind out of his free and volition under which he bequeathed the Schedule I of the plaint property in favour of this defendant and the schedule II and III of the plaint property in favour of the plaintiff. The testator died on 29. 1996. The said will is the last testament of the testator." 9. As such it is crystal clear that it is not a case where the defendant admitted the case of the plaintiff in toto, but he came forward with a contentious case. Without adhering to the factual circumstance, in a cryptic order, the lower Court simply assumed as though the burden of proof is on D5 to prove his case at the first instance. To say the least the order of the lower Court is illegal and it is set aside and consequently, the I.A. is dismissed. The plaintiff should adduce evidence at the first instance. Accordingly, the trial Court shall proceed with the trail as expeditiously as possible. 10. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.