1. The plaintiff is the petitioner against an order by which plaintiffs application in terms of Order XVIII Rule 1 of CPC for a direction to the defendants to begin the case has been refused. Heard the learned counsel for the plaintiff-petitioner.

2. The matter arises out of a Partition Suit. The plaintiff claims certain properties to be ancestral properties which had not been subject matter of partition earlier and sought partition. The defendants in the written statement challenged the facts in the pleadings. They asserted that there had been a previous family partition and, as such, the properties were not unpartitioned ancestral properties. They denied the right of the plaintiff to seek partition in respect of all the properties.

3. At this stage, the plaintiff filed an application in terms of Order XVIII Rule 1 of CPC which is reproduced as under:

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 b