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2016 DIGILAW 280 (ORI)

Ashok Kumar Rout v. Nanda Kishore Rout

2016-04-08

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. In this petition under Article 227 of the Constitution of India, challenge is made to the order dated 19.10.2009 passed by the learned Civil Judge (Sr.Division), Kendrapara in T.S.No.279 of 1999. By the said order, the learned trial court rejected application of the plaintiff filed under Order 18 Rules 1 and 2 C.P.C. for a direction to the defendants to begin first. 2. The petitioner as plaintiff instituted the suit for partition impleading the opposite parties as defendants. The case of the plaintiff is that during consolidation operation, suit schedule land was recorded in the name of plaintiff and defendant no.1 with a share note 8 ana 10 paise and one Kabi Rout having share of 7 ana 2 paise. Defendant no.2 by means of a registered sale deed no.2144 dated 25.4.1984 had purchased an area of A0.09.2½ links from Kabi Rout. Thereafter defendant no.2 alienated the land in favour of the plaintiff by means of a registered sale deed no.4797 dated 15.10.1984. The plaintiff and defendant no.2 filed their respective objection cases under Section 15(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 for separate recording. Since the parties were in joint possession, the Consolidation Authority recorded the entire suit land jointly in favour of the plaintiff and defendants 1 and 2 on 25.5.1985. Though in the order sheet, the plaintiff and defendant no.1 signed, but defendant no.2 refused to sign. The respective shares of the parties have been recorded in the final R.O.R.. Defendant no.2 unsuccessfully challenged the order dated 25.5.1985 passed by the A.C.O. in appeal, which was dismissed on 5.2.1987. In the year 1989, the plaintiff constructed a building on the western side of the suit land with consent of the defendants. Till yet the suit schedule land has not been partitioned by metes and bounds. 3. Pursuant to the issuance of summons, defendants entered contest and filed a comprehensive written statement. It is stated that the suit land originally belonged to Bai Swain. He died leaving behind his widow Tavi Bewa and adopted son Bhikari Swain. After death of Tavi Bewa, Bhikari Swain became the owner of the land. Tavi Bewa and her son sold an area of Ac.0.16 decimals out of Ac.0.20 decimals to defendant no.1, Anadi Charan Rout and Gobinda Charan Rout. He died leaving behind his widow Tavi Bewa and adopted son Bhikari Swain. After death of Tavi Bewa, Bhikari Swain became the owner of the land. Tavi Bewa and her son sold an area of Ac.0.16 decimals out of Ac.0.20 decimals to defendant no.1, Anadi Charan Rout and Gobinda Charan Rout. It is further stated that defendant no.1 filed a partition suit against his co-sharers and others for partition of Ac.0.17 decimals out of Ac.0.20 decimals appertaining to plot no.458 and other joint family properties in the court of the learned Sub-Judge, Kendrapara. In the final decree, Ac.0.12 decimals out of Ac.0.17 decimals was allotted to him from eastern side and Ac.0.05 decimals of land was allotted to Satyabhama and her minor son, the present plaintiff. Tavi Bewa, after death of her adopted son, to meet the legal necessity, executed an agreement for sale in favour of defendant no.1 in respect of Ac.0.03 decimals of land and delivered possession to him. Thereafter defendant no.1 is in possession of the land. It is further stated that Tavi Bewa on 20.2.1951 executed a sale deed in favour of one Kali Rout which had not been acted upon and no consideration was paid. The decision of the Consolidation Authority is contrary to the final decree passed in T.S.No.62/67. After death of Satyabhama, the plaintiff became the owner of Ac.0.05 decimals of land appertaining to plot no.458, which was allotted to Sayabhama. The order passed by the Consolidation Authority is illegal. In sum and substance, defendants took a plea of previous partition. 4. While the matter stood thus, the plaintiff filed an application under Order 18 Rules 1 and 2 C.P.C. praying therein for a direction to the defendants to begin first. The learned trial court rejected the said application. 5. Heard Mr. R.K. Kar, learned Advocate along with Mr. A.K. Barala, learned Advocate for the petitioner and Mr. P.K. Kar, learned Advocate for the opposite parties. 6. The question does arise as to whether the defendants shall begin first ? 7. Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder: “1. 5. Heard Mr. R.K. Kar, learned Advocate along with Mr. A.K. Barala, learned Advocate for the petitioner and Mr. P.K. Kar, learned Advocate for the opposite parties. 6. The question does arise as to whether the defendants 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 Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I) OLR 72, 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….” 9. The instant case may be examined on the anvil of the decision cited (supra). 10. On a bare perusal of the pleadings of the parties, it is evident that plaintiff claimed for partition of the suit schedule properties. The specific stand of the defendants is that the suit land has been allotted to the share of the plaintiff and defendants in T.S.No.62/67. In view of the authoritative pronouncement of this Court in Purastam alias Purosottam Gaigouria and others (supra), the defendants shall begin first. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal. 11. In view of the authoritative pronouncement of this Court in Purastam alias Purosottam Gaigouria and others (supra), the defendants shall begin first. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal. 11. In view of the analysis made above, the order dated 19.10.2009 passed by the learned Civil Judge (Sr.Division), Kendrapara in T.S.No.279 of 1999, the petition is allowed. The learned trial court is directed to conclude the hearing of the suit by end of July, 2016.