IMPORTANT POINT
Right to begin is to be determined by rules of evidence.

B.R. SaranGi, J.—This application has been filed challenging the order dated 8.10.2012 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Civil Suit No. 110/2011 rejecting the application of the plaintiff-petitioner under Order 18 Rule 1, C.P.C.

2. The fact of the case is that the petitioner being the plaintiff filed Civil Suit No. 110/2011 in the Court of learned Civil Judge (Senior Division), Bhubaneswar for partition of the suit land by metes and bounds. The suit land is the joint undivided property of the family and the same has not been partitioned by metes and bounds between the parties. The plaintiff-petitioner claims half share in the suit land alongwith her children.

3. The defendant-opposite parties on being noticed appeared through their counsel and filed their written statement denying the plaint allegations. They pleaded specifically in paragraph-8 of the written statement that after the death of Madan Mohan his properties were partitioned among his three sons and the .same have been recorded separately vide Mistake No. 147 and 563 and accordingly Settlement ROR vide Khata No. 19 recorded in the name of Anathabandhu and Khata No, 11 recorded in the name of Antrajyami and Prafulla. Though some properties were recorded jointly in the name of Anathabandhu, Antrajyami and Prafulla, yet the same were also partitioned and the parties are in separate possession.

4. Taking into account the averments made in paragraph-8 of the written statement, the plaintiff-petitioner stated that the defendant-opposite parties have taken a plea of prior partition in the written statement and therefore, he filed an application vide Annexure-3 under Order 18, Rule1 C.P.C. to direct the defendant-opposite parties to lead their evidence first.

5. Defendant-opposite parties filed objection to the said application filed by the plaintiff-petitioner under Order 18, Rule 1 C.P.C. Learned Civil Judge (Senior Division), Bhubaneswar after hearing the parties passed the impugned order dated 08.10.2012 rejecting the application filed by the plaintiff-petitioner. Hence this writ petition.

6. Mr. Baug, learned counsel for the plaintiff-petitioner strenuously urged that since there is prior partition as per the pleadings averred in paragraph-8 of the written statement, the burden lies on the defendants to establish such prior partition. Therefore as per the provisions contained under Order 18, Rule 1 C.P.C., the defendant-opposite parties should begin first and the learned Court below while rejecting the application has committed gross error in stating that the contention of the present plaintiff-petitioner that the defendants pleaded previous partition of the suit property has been denied by the defendant-opposite parties which is based on wrong factual matrix. Rather it is contrary to the pleadings made in paragraph-8 of the written statement. To substantiate his contention he has relied upon the judgment of this Court in the case of Purastam alias Purusottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992(1) OLR 72. where in it is held that in a suit for partition on the ground of joint family property if the defendants plea is of previous partition then defendant has to begin adducing evidence and the right to begin is an integral part of a suit for which reliance is placed on Balkrushna Kar and another v. H.K. Mahatab, ILR (1954) Cut. 165.; Baidhar Behera and others v. Pranabandhu Moharatha, ILR 1966 Cut. 51.; Debara Barik v. Surya Kumar Dev & another, ILR 1979 Cut. 879.; Sudarsan Mohapatra and another v. Prasanna Kumar Mohapatra, 1990(1) OLR 153.

7. Mr. Mahadev Mishra, learned Counsel for the defendants-opposite parties stated that where the parties have not admitted the prior partition, in that case burden lies on the party who should begin to approach the Court by filing the application meaning thereby it is the plaintiff-petitioner who has the right to begin as the burden lies on him to establish the co