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2017 DIGILAW 793 (ORI)

Benudhar Swain v. Nilamani Swain

2017-07-26

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. By this application under Article 227 of the Constitution, challenge is made to the order dated 2.11.2016 passed by the learned Civil Judge (Senior Division), Puri in C.S.No.319 of 2002, whereby and where under, the learned trial court allowed the application of the plaintiffs under Order 18 Rule 1 C.P.C. and directed the defendants to begin first. 2. The opposite parties as plaintiffs have instituted the suit for partition impleading the petitioners as defendants. According to the plaintiffs, out of thirteen lots of schedule-B property, Lot Nos.1 to 7 and 13 are the ancestral properties. Lot No.8 was purchased in the name of defendant no.1 out of joint family funds. Lot No.9 property was purchased in the name of defendant no.2 (present petitioner no.2) out of joint family funds. Lot Nos. 10, 11 and 12 were purchased in the name of defendant no.3 out of joint family funds. Lot Nos.1 and 8 of schedule-B property were purchased by the father. The Will through which defendant no.2 got properties, was not executed by the father. The said Will is a fraudulent one. Their father was not in a fit state of mind to execute such deed. 3. The defendants filed written statement and contended that Lot Nos.1 to 7 of schedule-B property were the self-acquired properties of the father of the plaintiffs and defendant no.1. Lot No.8 is the self-acquired property of defendant no.1. Lot No.9 is the self-acquired property of defendant no.2. Lot No.10 is the self-acquired property of defendant no.3. Lot No.3 has been recoded in the name of Ananta Parida and others. Lot No.7 was acquired by the father in an auction sale. He executed a Will on 2.8.1992 in favour of defendant No.2. Lot Nos.1, 3 (part) and 4 to 6 of schedule-B property were also the self-acquired properties of the father. He executed three Wills in favour of defendant no.2 in respect of the same. R.S.A No.254 of 2000 is pending in respect of a part of lot No.3. While the matter stood thus, the plaintiffs filed an application under Order 18 Rule 1 C.P.C. for a direction to the defendants to begin first. The defendants filed objection. The learned trial court allowed the same. 4. Heard Mr.Ajit Kumar Tripathy, learned Advocate for the petitioners and Mr.Ashok Mohanty, learned Senior Advocate along with Mr.B.K.Nayak, Advocate for the opposite parties. 5. The defendants filed objection. The learned trial court allowed the same. 4. Heard Mr.Ajit Kumar Tripathy, learned Advocate for the petitioners and Mr.Ashok Mohanty, learned Senior Advocate along with Mr.B.K.Nayak, Advocate for the opposite parties. 5. Mr.Tripathy, learned Advocate for the petitioners submitted that there is no presumption that family, because it is joint, possessed joint family property and in a suit for partition, if a party claims that any particular item of property, held by an individual member, is a joint family property, then burden of proof rests upon the party who asserts the same. He further submitted that the presumptive doctrine available in respect of the properties acquired in the name of male member, is not available in case of property standing in the name of female member. He further submitted that burden lies upon the person who asserts that a particular property is joint family property to establish that fact. He further submitted that right to begin is to be determined by the rules of evidence. As a general rule the party on whom the burden of proof rests should begin. In no case plaintiff can be allowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plaintiff in the suit. The words “facts alleged”, occurring in Order 18 Rule 1 C.P.C., mean all the material facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin. He relied on a decision of the apex Court in the case of Mst.Rukhmabai Vs. Lala Laxminarayan and others, AIR 1960 SC 335 as well as on the decisions of this Court in the case of Mirza Niamat Baig and another Vs. Sk.Abdul Sayeed and others, 2008 (II) OLR-566, and Satyabadi Behera and others Vs. Bidyadhar Behera and another, 2015(II) CLR-649. 6. Per contra, Mr.A.Mohanty, learned Senior Advocate for the opposite parties submitted that right to begin is not the same as the adducing of evidence in support of a party’s case. He further contended that the plaintiffs sought for partition pleading inter alia that the property was joint family property and not partitioned by metes and bounds. 6. Per contra, Mr.A.Mohanty, learned Senior Advocate for the opposite parties submitted that right to begin is not the same as the adducing of evidence in support of a party’s case. He further contended that the plaintiffs sought for partition pleading inter alia that the property was joint family property and not partitioned by metes and bounds. The defendants pleaded that Lot 8, 9 and 10 are the self-acquired properties of defendants 1, 2 and 3 respectively. Father had executed a Will in favour of defendant no.2 in respect of Lot No.7 and Lot No.1, 3(part) and 4 to 6 of schedule-B property. In view of the same, the defendants should begin first. 7. The seminal question that hinges for consideration before this Court as to whether the defendants shall begin first? 8. 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.” 9. In Balakrishna Kar and another Vs. H.K.Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held 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. 10. 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. 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….” 11. On the anvil of the decisions cited (supra), the instant case may be examined. The assertion of the plaintiffs is that the suit schedule properties are the joint family property and have not been partitioned by meats and bounds. The defendants assert that Lot Nos.8, 9 and 10 properties are the self-acquired properties of defendants 1, 2 and 3 respectively. Father had executed a Will in favour of defendant no.2 in respect of Lot No.7 and Lot Nos.1, 3 and 4 to 6 of schedule-B property. In view of the categorical stand of the defendants that Lot No.7 and Lot Nos.1, 3 and 4 to 6 of schedule-B property are the self-acquired properties of the defendants, the defendants shall begin first. Only when the defendants lead some evidence in proof of their case, the plaintiffs shall be obliged to lead evidence in rebuttal. 12. As held by this Court in the case of Balkrishna Kar and another (supra), right to begin is not the same as adducing evidence in support of a party’s case. There is a distinction between two. Thus all the decisions cited by Mr.Tripathy, learned Advocate for the petitioners are distinguishable on facts. 13. In the wake of the aforesaid, the petition, sans merit, is dismissed. No costs.