A party is entitled to reserve his right to let in rebuttal evidence on an issue where the burden of proof is on the other party, even if he has already let in evidence on that issue, provided that the evidence let in does not touch on the issue.

The revision petitioner is the defendant in O.S. No. 332 of 1987 in the Court of District Munsif of Sirkuli. The respondent/plaintiff instituted that suit against him for recovery of possession of 62 cents of land in R.S. No. 153/11 of Thiruvengadu, Sirkali taluk. It is the case of the respondent/plaintiff that this part of the vacant site situate on the southern side of the defendant's house was allotted to him in the family partition. His farther permitted the revision petitioner defendant to put up a cattle shed and hay-rick therein on a charge of Rs. 2/- per month. In the agreement entered into between the parties on 1-7-1973 this permission was reiterated. In July, 1984 the compensation amount was enhanced to Rs. 50/- per year by mutual arrangement.

2. The revision petitioner resisted the suit contending that he came to occupy the land more than 60 years ago and eversince then he is in continuous enjoyment of the same. Except those portions over which hay-rick and cattle shed have been put up by him, the other part of the land is under cultivation. This cultivable extent was let out to one Chinnadurai by the father of the respondent plaintiff nearly 20 years ago. From then onwards Chinnadurai alone has been raising crops in this part of the land. The revision petitioner was only collecting the share of the income, realised by him from the said Chinnadurai as per the direction of the father of plaintiff and the arrangement was one of 'Waram'. The revision petitioner is all along remitting the value of the share due to the father of the respondent/plaintiff. The said Chinnadurai is a cultivating tenant within the meaning of Tamil Nadu Act 25 of 1955 and he is entitled to the protection under that Act. In view of the fact that the collection of rent on 'Waram' basis was being done by the revision petitioner, the agreement included the cultivable portion also to ensure due remittance of the share due to the father of the plaintiff. The suit without impleading Chinnadurai is bad for non-joinder of necessary parties.

3. Of the issues framed issue No.3 relates to the non-joinder of Chinnadurai.

4. The trial commenced on 25-3-1994 and the respondent/plaintiff examined himself as P.W. 1. In the chief examination he has stated that it is not correct to say that his father had let out the disputed property to Chinnadurai for the purpose of cultivation. The said Chinnadurai never enjoyed any portion of the suit property. Chinnadurai never paid 'Waram'. Neither the revision petitioner nor Chinnadurai has any right or interest in the suit land. There is no such person as Chinnadurai. P.W. 1 was recalled and cross-examined on 14-6-1994. On 7-7-94 respondent/plaintiff filed a memo in the trial Court under O.18, R.3 and Section 151, C.P.C. reserving his right of adducing rebuttal evidence in respect of issue No.3 on non-joinder of Chinnadurai. On the next day, respondent filed a reply memo repudiating the right of the Plaintiff to reserve adducing rebuttal evidence on this issue. His plea was that since evidence covered by the option has already been let in by the plaintiff as P.W. 1, no further evidence by way of rebuttal is permissible. However the Court below allowed the memo and upheld the right of the plaintiff to let in rebuttal evidence on this aspect. The defendant assails this order in this revision petition.

5. Thiru S. Ramamurthi, learned senior counsel for the revision petitioner has first drawn my attention to the provisions of Order 18, Rule 3, C.P.C. which runs as follows:-

"Order 18, Rule 3. Evidence where several issues:- Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party, and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other