JUDGMENT : A.K. Rath, J. Challenging, inter alia, the order dated 30.11.2009 passed by the learned Civil Judge (Sr. Divn.), Boudh in C.S. No.30/05, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, learned trial court allowed the application of the plaintiff filed under Order 18 Rule 1 C.P.C. and directed the defendants to begin first. 2. The opposite party no.1 as plaintiff instituted the suit impleading the petitioners as well as opposite party nos.2 to 14 as defendants. The case of the plaintiff is that Dhoba Jhankar, common ancestor of the parties, was the recorded owner of an area of 5005 sq. ft. of homestead land appertaining to Sabik Khata No.289 in Mouza-Boudh Town and an area of Ac.4.51 dec. agricultural land vide Sabik Khata No.211 of Mouza-Boudhgarh. Dhoba died in or around the year 1960 and his wife Padma died in the year 1980. After death of Dhoba, his three sons were in separate mess and possession of suit schedule properties by mutual family arrangement. There was no partition of the suit schedule properties by metes and bounds. The defendant no.15 alienated an area of Ac.1.45 dec. of agricultural land to the outsiders. It is further stated that despite of the fact that the properties have not been partitioned by metes and bounds, the co-sharers have raised construction over the suit schedule land by demolishing old structures and consequently the plaintiff has suffered damage to the tune of Rs.20,000/- due to collapse of his house. With this factual scenario, the plaintiff instituted the suit for declaration of right, title and interest over the suit schedule land, for partition, for permanent injunction and for damages of Rs.20,000/-. 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 parties are living in separate mess and properties and have constructed their separate residential house since long. 4. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 C.P.C. praying for a direction to the defendants to begin first. The defendants filed an objection stating therein that in view of the pleadings of the parties, the plaintiff shall begin first. 4. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 C.P.C. praying for a direction to the defendants to begin first. The defendants filed an objection stating therein that in view of the pleadings of the parties, the plaintiff shall begin first. By order dated 30.11.2009, learned trial court allowed the application of the plaintiff filed under Order 18 Rule 1 C.P.C. and directed the defendants to begin first. 5. Heard Mr. S.K. Mishra, learned counsel for the petitioner and Mr. P.K. Nayak, learned counsel for the opposite party no.1. 6. The sole question that arises for consideration before this Court is as to whether 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 Balakrishna Kar and another Vs. H.K. Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held that it should therefore 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. 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 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. In paragraph 7 of the written statement, it is stated that Dhoba Jhankar during his life time partitioned the schedule landed properties amongst his three sons, who were in separate mess and properties of the suit schedule lands. Since then they have constructed separate residential houses within permanent structures on the land and the same are in their exclusive possession. In view of the categorical stand of the defendants that the suit property was partitioned, 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. There being no infirmity or perversity in the order dated 30.11.2009 passed by the learned Civil Judge (Sr. Divn.), Boudh in C.S. No. 30/05, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed. No costs.