ORDER

1. This writ petition by the plaintiffs in O.S. No.44 of 2020 is directed against the impugned order passed on I.A. No.8 dated 02.12.2023 whereby the said application in I.A. No.8 filed by the petitioner—plaintiff under Order XVIII Rules 1 to 3 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for direction to the defendant Nos.1 to 3 to adduce evidence, prior to the commencement of evidence by the petitioner—plaintiff, was dismissed by the Trial Court.

2. A perusal of the material on record will indicate that the petitioner-plaintiff therein has instituted the instant suit in O.S. No.44 of 2020 against the respondents—defendants for declaration, partition and separate possession and for other reliefs in relation to the suit schedule immoveable properties.

3. The respondents—defendants have subsequently instituted one more suit in O.S. No.41 of 2021 against the plaintiff herein for declaration of title and permanent injunction and both the suits have been clubbed and are being disposed of together.

4. At the stage of evidence, the petitioner—plaintiff filed the instant application inter alia contending that the burden of proving the claim rests on the respondents—defendants and not upon the petitioner-plaintiff and consequently, the respondents—defendants are to be directed to commence the evidence in their suit prior to the petitioner—plaintiff adducing the evidence in the suit filed by him.

5. The said application having been contested by the respondents—defendants, the Trial Court proceeded to pass the impugned order rejecting the application, on the main ground that the suit in O.S. No.44 of 2020 filed by the petitioner—plaintiff had been instituted prior to institution of O.S. No.41 of 2021 by the respondents—defendants, and consequently, since the earlier suit was instituted by the petitioner—plaintiff, it was for him to adduce the evidence before the respondents—defendants adduce the evidence on their behalf.

6. While coming to the said conclusion, the Trial Court has held as under:

“ ORDERS ON I.A.No.8 I.A.No.8 an application U/o 18 rule 1 to 3 R/w sec.151 of CPC filed by the plaintiff to direct the defendant No.1 to 3 to lead their evidence, prior to the evidence of plaintiff. The said application is supported by memorandum of facts.

On the other hand, the defendants filed objection.

Heard both sides. Perused the material on record.

It is submitted by the plaintiff that, O.S.No.44/2020 filed by plaintiff for the relief of declaration and partition. O.S.No.41/2021 filed by the defendant for the relief of declaration of title and permanent injunction. Both suits were clubbed together. In both suits issues were also framed. It is submitted by the plaintiff that, the plaintiff averred that, suit schedule properties are the ancestral and joint family properties and he is entitled for the share. On the other hand, the defendants taken contention already partition taken place and schedule properties fallen to their share and it is self acquired properties. Hence, the burden is upon the defendants to prove their case. Hence, prays to direct the defendants to lead evidence.

On the other hand, the defendants filed objection. It is the case of the defendant is that, joint family does not exist between the plaintiff and defendants. They have already got divided their properties. Issue No.1 framed putting burden upon plaintiff to prove their case. Under such circumstance, the plaintiff has to lead evidence before the evidence of defendant. The defendant is unable to disclose the defence. Hence, the application filed by the plaintiff is not maintainable. Hence, prays to dismiss the application.

On perusal of the records, it is to be noted that, in both suits parties and properties are one and the same. The relief claimed in O.S.No.44/2020 is for declaration and partition. On the other hand, O.S.No.41/2021 filed for the relief of declaration of title and permanent injunction.

It is to be noted, the plaintiff in O.S.No.44/20