Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 225 (ORI)

Basanti Patra v. Ramamani Mohapatra

2016-03-21

A.K.RATH

body2016
JUDGMENT : Dr. A.K. Rath, J. The petitioners have challenged, inter alia, the order dated 24.09.2001 passed by the learned District Judge, Balasore-Bhadrak, Balasore in C.R. No.9 of 2001. By the said order, the learned District Judge dismissed the revision and confirmed the order dated 19.2.2001 passed by the learned Civil Judge (Sr. Divn.), Balasore in T.S. No.139 of 1998, whereby and whereunder the application filed by the plaintiffs under Order 18 Rule 1 C.P.C. was allowed and the defendants have been called upon to begin first. 2. Opposite party nos.1 and 2 as plaintiffs instituted the suit for partition and permanent injunction impleading the petitioners and opposite party nos.3 to 9 as defendants. The dispute pertains to the land appertaining to Khata No.14, Plot No.261, area Ac.0.19 dec. of mouza-Raipur in the district of Balasore. The plaintiffs assert that the said plot belongs to Madan Barik and Netra Barik. Since the dissension cropped up in the family, they were in separate mess and estate prior to major settlement operation. Madan was in possession of an area Ac.0.14 dec. of land out of Ac.0.19 dec. whereas Netra was in possession of rest Ac.0.5 dec. After the death of Madan, his sons-defendant nos.4, 5 and 6, to press their legal necessity, alienated an area of Ac.0.07 dec. each in favour of the plaintiff nos.1 and 2 by means of two registered sale deeds for valid consideration. After execution of sale, possession was delivered to them. When the plaintiffs tried to construct boundary wall, the defendant nos.1 and 2 obstructed to the same. With this factual scenario, the suit has been filed. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that after publication of major settlement record-of-right, there was a partition between Madan and Netra. The suit property fell in the share of Netra. Netra sold an area of Ac.0.05 dec. on 2.1.1981 to Prahallad Sahoo and Ratnakar Sahoo for a valid consideration. Thereafter, Prahallad and Ratnakar sold the same on 9.1.1995 to defendant nos.2 and 3. After purchase, the defendant nos.2 and 3 constructed their house thereon. It is further stated that after the death of Netra, defendant no.7 on 3.5.1996 sold an area of Ac.0.05 dec. each to defendant nos.1 and 2 by means of registered sale deeds for valid consideration. 4. After purchase, the defendant nos.2 and 3 constructed their house thereon. It is further stated that after the death of Netra, defendant no.7 on 3.5.1996 sold an area of Ac.0.05 dec. each to defendant nos.1 and 2 by means of registered sale deeds for valid consideration. 4. While the matter stood thus, the plaintiffs filed an application under Order 18 Rule 1 C.P.C. praying for a direction to the defendant nos.1 and 2 to begin first. Learned trial court relying on the decision of this Court in the case of Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I) OLR 72 came to hold that the onus lies on the defendants to establish their plea of previous partition. Held so, learned trial court allowed the application. The defendant nos.1 and 2 unsuccessfully challenged the same before the learned District Judge, Balasore-Bhadra, Balasore in Civil Revision No.9 of 2001, which was eventually dismissed. 5. Heard Mr. Soumya Mishra, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the petitioners and Mr. Niranjan Panda, learned counsel for the opposite party nos.1 and 2. 6. The sole question that arises for consideration before this Court is as to whether defendant nos.1 and 2 shall begin first ? 7. 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.” 8. In Balakrishna Kar and another Vrs. H.K.Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held that it should there fore be borne in mind 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. 9. 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. 9. In Purastam alias Purosottam Gaigouria and others (supra), the 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….” 10. On the anvil of the decisions cited supra, this case may be examined. On an anatomy of the pleadings of the parties, it is evident that while the plaintiffs assert that Madan was in possession of the suit schedule land by way of amicable settlement and after his death, his legal heirs alienated the land in favour of the plaintiffs, the defendants assert that by way of partition the suit property fell to the share of Netra. Netra alienated a part of the suit land to one Prahallad Sahoo and Ratnakar Sahoo. Prahallad and Ratnakar alienated the land in favour of the defendant nos.2 and 3. Thereafter, after death of Netra, the defendant no.7 alienated the rest of the land in favour of the plaintiffs. Thus it cannot be said that the defendant nos.1 and 2 have admitted the case of the plaintiffs. The plaintiffs will fail, in case no evidence is adduced by the parties. Reliance placed upon by the courts below in the case of Purastam alias Purosottam Gaigouria and others (supra) is totally misplaced. The core issue is whether the property belonged to Madan or Netra. 11. The plaintiffs will fail, in case no evidence is adduced by the parties. Reliance placed upon by the courts below in the case of Purastam alias Purosottam Gaigouria and others (supra) is totally misplaced. The core issue is whether the property belonged to Madan or Netra. 11. The Constitution Bench of the Supreme Court in the case of Islamic Academy of Education and another v. State of Karnataka and others, AIR 2003 SC 3724 has restated the well settled principle of precedent. The apex Court held that a judgment, it is trite, is not be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. It is further held that a decision is an authority for what it decides and not what can be logically deducted there from. 12. In the wake of the above, order dated 24.09.2001 passed by the learned District Judge, Balasore-Bhadrak, Balasore in C.R. No.9 of 2001 as well as the order dated 19.2.2001 passed by the learned Civil Judge (Sr. Divn.), Balasore in T.S. No.139 of 1998 are hereby quashed. The learned trial court shall conclude the hearing of the suit by end of June, 2016. The petition is allowed. No costs.