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2017 DIGILAW 28 (ORI)

Tila Jena @ Tilottama Jena v. Sukhi Jena

2017-01-04

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This petition challenges the order dated 1.8.2014 passed by the learned Civil Judge (Sr. Division), Puri in C.S.No.163 of 2011. By the said order, the learned trial court rejected the application of the plaintiff-petitioner under Order 18 Rule 1 C.P.C. for a direction to the defendants to begin first. 2. One Indramani Jena instituted the suit for partition impleading opposite parties 1 to 3 as defendants. During pendency of the suit, he died, where after the petitioner and proforma opposite party no.4 have been substituted. The case of the plaintiff is that Halu Jena was the common ancestor of the parties. He has two sons, namely, Kalu and Indramani (Plaintiff). Defendants are the sons and daughters of Kalu. The suit schedule property originally was the intermediary estate of one Mani Gopal Das. Halu Jena was a tenant in respect of the suit land. After death of Halu Jena, his two sons remained in possession of the suit land. After promulgation of the Land Reforms Act, the plaintiff filed OLR Case No.2723 of 1974 before the Tahasildar, Puri for declaration of raiyat along with his brother. The Revenue Officer-cum-Tahasildar, Puri passed an order in favour of the tenant on 31.7.1975. But in the order-sheet, name of the plaintiff was omitted. The order was passed behind his back at the instance of Kalu Jena. He could not challenge the same. However, he is in possession of the suit land along with defendants. Though there is an amicable arrangement between the parties, but there is no partition of the suit properties by metes and bounds. Pursuant to issuance of summons, defendants 1 and 3 entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The specific case of the defendants is that Mani Gopal Das was the land owner of the suit property. He inducted Kalu Jena as tenant. Kalu Jena was in cultivating possession of the suit land since 1962 and was paying rent. In OLR Case No.2723 of 1974, Kalu Jena was declared as a raiyat. The plaintiff has no semblance of any right, title and interest in the suit property. It is further stated that Halu Jena died in the year 1960 leaving behind his two sons, namely, Kalu Jena and Indramani Jena and two daughters. After his death, there was a partition of ancestral property in the year 1961. The plaintiff has no semblance of any right, title and interest in the suit property. It is further stated that Halu Jena died in the year 1960 leaving behind his two sons, namely, Kalu Jena and Indramani Jena and two daughters. After his death, there was a partition of ancestral property in the year 1961. The defendant no.2 took the same stand in her written statement as that of defendant nos.1 and 3. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 C.P.C. for a direction to the defendants to begin first. The learned trial court rejected the application. 3. The sole question hinges for consideration before this Court as to whether defendants shall begin first ? 4. Order 18, Rule 1 C.P.C., 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.” 5. In Balakrishna Kar and another Vrs. H.K.Mahatab, AIR 1954 ORISSA 191, the Division Bench of this Court in paragraph-5 of the said report held as follows:- “(5). 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. It is open to the plaintiff to say that although he has the right to begin he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence, but the plaintiff should make this statement before the defendant is called upon to adduce evidence. Unfortunately, the Court below has confused the issue and has called upon the defendant to open his case even before the plaintiff went into the box or testified to the truth of his story. We are clearly of opinion that the order of the learned Subordinate Judge is erroneous and must be set aside.” 6. In Baidhar Behera and others Vrs. We are clearly of opinion that the order of the learned Subordinate Judge is erroneous and must be set aside.” 6. In Baidhar Behera and others Vrs. Pranabandhu Maharatha, ILR 1966 Cut.51, it is held that the rule in the first instance enjoins an obligation of the right to begin on the plaintiff but the same is subject to certain riders. When the controversy usually starts between the parties as to who has the right to begin it is incumbent upon the Court to decide the controversy. The determination of the question as to which party has a right to begin is an integral part of the hearing itself. 7. In Chittaranjan Das Vrs. Janaranjan Das and others, 84 (1997) CLT 296, it is held that the plaintiff in all cases has the right to begin, exception being that when the defendant admits the facts and contends either in the point of law or on some additional facts alleged by the defendants the plaintiff is not entitled to any part of the relief which he seeks in the suit and in that event only the defendant is to begin. The same view was taken in the case of Smt. Manorama Chhotray Vrs. Sri Prafulla Kumar Chhotray and another, 2014 (I) OLR-575. 8. Admittedly, in OLR Case No.2723 of 1974, the Revenue Officer-cum-Tahasildar, Puri declared Kalu Jena as raiyat. The plaintiff asserts that he instituted the suit along with Kalu Jena, but inadvertently his name was omitted. He could not challenge the said order. The suit schedule property was the subject matter in OLR Case. The plaintiff has to prove that he has instituted the OLR Case No.2723 of 1974 along with Kalu Jena and the order of the Revenue Officer-cum-Tahasildar, Puri is an infraction of the principles of natural justice. In view of the same, the order passed by the learned trial court can not be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India. Accordingly, the petition is dismissed. No costs.