A defendant cannot be compelled to present evidence first when multiple defenses, including prior oral partition, are raised in a partition suit.

ORDER :

The second defendant in O.S.No.276 of 2022, on the file of the Third Additional District Court, Tirunelveli, has filed the above revision petition, challenging an order issued by the trial Court directing the second defendant to let in evidence first.

2. A perusal of the records reveal that the first respondent in the revision petition had filed the above said suit for the relief of partition and separate possession of her alleged 1/6 share in the suit schedule properties and in the accumulated rent collected from the buildings in the first and second schedule properties, which is shown as the third schedule property.

3. Both the suit schedule properties were the absolute properties of the father of the plaintiff and the defendants 1 to 5, namely, M.S.Chidambaram Nadar. He had died intestate leaving behind his wife Unnamalai Ammal and his sons and daughters. The wife of M.S.Chidambaram Nadar, namely, Unnamalai Ammal had also died intestate in October 2012. The plaintiff and the defendants 1 to 5 are each entitled to 1/6 shares of the properties. These facts are not disputed in the written statement filed by the second defendant.

4. The second defendant in his written statement had contended that he had borrowed bank loan to an extent of Rs.4,50,000/- for renovating the second suit schedule property. He had further contended that the property of Unnamalai Ammal is located in Pettai Sundara Vinayagar Temple, 18 sovereigns of jewels, bank deposit of Rs.4,04,000/- and Rs.10,00,000/- worth household items were left behind by the said Unnamalai Ammal. They have not been included in the partition suit. Similarly, the father of the plaintiff and the defendants 1 to 5 was the owner of 1.08 acres of Nanja land. This property has also not been included.Therefore, the suit is bad for partial partition.

5. The second defendant has further contended that the female legal heirs, namely, the plaintiff, the defendants 1, 3 and 5 have already orally relinquished their shares in the suit schedule property, 48 years back. In the said oral partition, the first item was allotted to the fourth defendant and second item was allotted to the second defendant. Since already partition has taken place, the present suit for partition is not maintainable.

6. The plaintiff had filed I.A.No.3 of 2024, under Order 18 Rules 1 and 2 of C.P.C. for a direction to the second defendant to start his evidence before the plaintiff side evidence. It is alleged in the said petition that after admitting relationship, shares and the character of the property, has taken the defence that already oral partition has taken place. In such circumstances, the second defendant alone has to be directed to let in evidence first.

7. The second defendant has filed counter contending that apart from oral partition, he has also taken a stand that the suit is bad for partial partition. The suit has been undervalued and proper Court fee has not been paid. The second defendant has further contended that suppressing various facts, the suit has been filed for partition. In such circumstances, the question of issuing a direction to the second defendant to begin the case does not arise.

8. The trial Court after considering the pleadings and submissions made on either side, has proceeded to allow the application on the ground that when the shares of the parties are admitted and the second defendant claims that already partition had taken place, the said fact has to be proved by the second defendant alone. Based upon the above said observations, the trial Court had directed the second defendant to begin the case. Challenging the same, the present revision petition has been filed by the second defendant.

9. According to the learned Counsel appearing for the revision petitioner, when several defences, apart from the plea of oral partition, have been taken, in such circumstances, the Court cannot issue a direction to the defendants to prove begin first. He further contended that the right to begin, i