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2016 DIGILAW 882 (ORI)

Manjulata Bhoi v. Sabitri Sethi

2016-09-28

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This petition challenges the order dated 28.1.2016 passed by the learned Civil Judge (Senior Division), Puri in C.S No. 92 of 2014. By the said order, learned trial court rejected the application filed by the plaintiff under Order 18 Rule 1 CPC for a direction to the defendant to begin first. 2. The petitioner as plaintiff instituted the suit to set aside the sale deed dated 13.12.2013 in favour of defendant No. 2 and permanent injunction impleading the opposite party as defendant. The case of the plaintiff is that she is the adopted daughter of defendant No. 1. She was adopted on Akhi Trutiya day of 1981. Subsequently the deed of acknowledgment of adoption was executed on 27.8.2010. After the death of her mother, defendant No. 2 raised claim over Schedule-B property on the strength of sale deed said to have been executed by defendant No. 1 on 13.12.2013. The same is invalid, since no consideration was paid. Be it noted that the defendant No. 1 died during pendency of the suit. 3. Pursuant to issuance of summons, the defendant No. 2 filed a written statement-cum-counter claim praying for a declaration that the plaintiff is not the adopted daughter of defendant No. 1, deed of acknowledgment of adoption dated 27.8.2010 is illegal, the gift deed dated 27.8.2010 as void and permanent injunction. The case of the defendant No. 2 is that the deed of acknowledgment of adoption and gift deed executed in favour of the plaintiff are invalid documents. Defendant is in possession of the suit property. It is further stated that in the year 1968 on Akhi Trutiya day, her husband was adopted by defendant No. 1 and thereafter the deed acknowledging adoption was executed on 11.2.1987. 4. The plaintiff filed a written statement denying the assertions made in the counter claim. While the matter stood thus, the plaintiff filed a petition under Order 18 Rule 1 CPC praying for a direction to the defendant to begin first. It is stated that since the defendant has disputed her status and the gift deed, burden lies on the defendant to prove the same and, as such, the defendant should begin first. Defendant No. 2 filed an objection stating that the burden lies on the plaintiff to establish that she is the adopted daughter of defendant No. 1 and Neta Sethi. Defendant No. 2 filed an objection stating that the burden lies on the plaintiff to establish that she is the adopted daughter of defendant No. 1 and Neta Sethi. Learned trial court held that the burden lies on the plaintiff to prove that she is the adopted daughter of Halu Sethi. Held so, learned trial court rejected the application. 5. The sole question arises for consideration as to whether defendant shall begin first? 6. In Chamara Jhankar and others v. Banamali Jhankar and others, WP (C) No. 142 of 2010 disposed of on 18.4.2016, this Court held thus: “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. 9. 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 leads no evidence has the right to begin. 10. 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. 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.” 7. The instant case may be examined on the anvil of the decision cited supra. The plaintiff claims to be the adopted daughter of Halu Sethi deceased defendant No. 1 and Neta Sethi. Adoption results in changing the course of succession. The burden lies on the person who claims to have succeeded to the property by virtue of being adopted to a family. The plaintiff would fail in case no evidence is led. In view of the same, the plaintiff has to begin first. 8. The impugned order of the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. Accordingly, the petition is dismissed. No costs.