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2016 DIGILAW 1208 (ORI)

Pradip Patra v. Seenta Patra

2016-12-07

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 18.4.2014 passed by the learned Civil Judge (Sr.Division), Khurda in Civil Suit No.197 of 2012, whereby and whereunder, the learned trial court rejected the application of the plaintiff under Order 18 Rule 1 CPC for a direction to the defendants 6, 7 and 17 to begin first. 2. The petitioner as plaintiff instituted the suit in the court of the learned Civil Judge (Sr.Division), Khurda for partition of the suit schedule land and for declaration that the R.O.R. is illegal and void and for permanent injunction impleading the opposite parties as defendants. Pursuant to issuance of summons, the defendants 6 and 7 entered appearance and filed a joint written statement. Defendant no.17 also filed the written statement. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 C.P.C. for a direction to defendant no.17 to begin first. Defendant no.17 filed objection. The learned trial court came to hold that defendant no.17 has not taken any specific plea of previous partition. Held so, the learned trial court rejected the application. 3. Heard Mr.Baug, learned Advocate for the petitioner and Mr.Sarangi, learned Advocate for opposite parties 1 to 5 and 8 to 16. None appeared for others. 4. Linga Patra was the common ancestor of the parties except defendant no.7. In the written statement filed by defendants 6 and 7, it is stated that during the life time of Linga Patra, he amicably settled everything amongst his wife, sons and daughters. Hari Patra, being the eldest son, got the suit schedule land. Gopal Patra, father of the plaintiff and defendant no.7 purchased the suit schedule land by means of a registered sale deed on 3.10.1972. He alienated the suit land in favour of defendant no.17 with the consent of defendant no.6 to press his legal necessity. Defendant no.17 in her written statement took the same plea. 5. The seminal question that hinges for consideration before this Court is as to whether defendant no.17 shall begin first? 6. Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder: “1. Defendant no.17 in her written statement took the same plea. 5. The seminal question that hinges for consideration before this Court is as to whether defendant no.17 shall begin first? 6. Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder: “1. 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.” 7. In Balakrishna Kar and another Vrs. H.K.Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held that the right to begin is not the same as the adducing of evidence in support of a party's case. There is a distinction between the two. In Sudarsan Mohapatra and another v. Prasanna Kumar Mohapatra and others, 1990 (I) OLR 153, it is held that the party who would fail in case and leads no evidence has the right to begin. 8. In Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I)OLR 72, a Division Bench of this Court in para-5 of the report held thus : “5. In this case, the plaintiff sought partition alleging that the property was joint family property and had not been decided by metes and bounds. The defendant-petitioners placed a previous partition since 1960-61 to defeat the plaintiff’s suit. In view of the plea of the defendants that there was a previous partition, the learned Subordinate Judge called upon the defendants to begin. The plaintiff’s plea that the property was joint family property having been admitted by the defendants and the latter having pleaded previous partition, the defendants are to lose if neither party adduced evidence, the burden being on the defendants to prove previous partition. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal....” (Emphasis laid) 9. On the anvil of the decisions cited supra, the instant case may be examined. 10. As would be evident from the plaint, Hari Patra executed a registered sale deed in favour of Gopal Patra. Thereafter Gopal Patra executed a registered sale deed on 3.1.2011 in favour of defendant no.17. On the anvil of the decisions cited supra, the instant case may be examined. 10. As would be evident from the plaint, Hari Patra executed a registered sale deed in favour of Gopal Patra. Thereafter Gopal Patra executed a registered sale deed on 3.1.2011 in favour of defendant no.17. A prayer has been made for declaration that the same is illegal. In view of the specific stand of the defendants 6, 7 and 17 that Linga Patra amicably settled the land amongst his wife, sons and daughters, defendants 6, 7 and 17 have to begin first. Thus burden lies on defendants 6, 7 and 17 to prove previous partition. After defendants 6, 7 and 17 lead evidence in proof of previous partition, the plaintiff shall lead evidence in rebuttal. 11. The petition is allowed. No costs.