Sri.Ravi B.Patil., learned counsel for the petitioner and

Sri.Ganesh S.Kalburgi., learned counsel for the respondent

No.1 have appeared in person.

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For the sake of convenience, the parties shall be

referred to as per their ranking and status before the Trial

Court.

The brief facts are these:

The Plaintiff Dr.Neelesh S/o.Vilasrao Deshmukh filed a

suit against his father Sri.Vilasrao S/o.Sadasivrao Deshmukh

and brothers & sisters and also against the purchaser seeking

the relief of Partition and Separate Possession by allotting 1/6^th

share to him in respect of land bearing Sy.No.48 measuring 11

Acres 1 Guntas situated at Bachpalli Village, Aurad-B Taluk, on

the file of Senior Civil Judge, Aurad-Bidar District in

O.S.No.57/2013.

After the issuance of a notice, defendants 2 to 5 and 7 &

8 filed their written statements. Defendant No.6, the purchaser

of the suit schedule property, also filed a detailed written

statement and denied the plaint averments. Based on the

pleadings, the Trial Court framed the Issues.

During the pendency of the suit, the plaintiff moved an

application seeking a direction to the sixth defendant to lead

the evidence first as per Order 18 Rule 1 and Section 102 of

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the Evidence Act. The sixth defendant filed his objections to the

said application. The Trial Court vide order dated 25.10.2019

considered the application and called upon the sixth defendant

to begin with evidence at first and ultimately fixed the date for

evidence of the sixth defendant on 31.10.2019. This order is

called into question in this Writ Petition on several grounds as

set out in the Memorandum of Writ Petition.

Learned counsel for the petitioner and respondent

No.1 have urged several contentions.

Sri.Ravi B.Patil., learned counsel for the petitioner

submits that the order passed by the Trial Court is opposed to

the well-settled principles of law and facts.

Next, he submitted that the suit is one for partition and

separate possession. The plaintiff has contended that the suit

schedule property is ancestral and joint family property. He has

also sought for nullity of the sale transaction. Hence, the

burden is on the plaintiff to prove the claim. He also submitted

that the defense taken by the sixth defendant will not assist the

plaintiff to seek the relief of partition in respect of the suit

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schedule property. Therefore, the Trial Court has committed a

mistake in allowing the application.

A further submission is made that the Trial Court has

misinterpreted the specific provision i.e., Order 18 Rule 1 of

CPC.

Learned counsel vehemently contended that Order 18

Rule 1 of CPC specifically contemplates that the plaintiff has the

right to begin unless the defendant admits the facts alleged by

the plaintiff and contends 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 begin, therefore it is the

defendant who has the right begin.

Sri.Ravi B.Patil., in presenting his arguments strenuously

urged that in the present case, the sixth defendant has

specifically denied the plaint averments and he has not

admitted the facts pleaded by the plaintiff. Hence, the Trial

Court has erred in applying order 18 Rule 1 of CPC.

Lastly, he submitted that viewed from any angle, the

order passed by the Trial Court is bad in law. Hence, the same

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is liable to be quashed. Accordingly, he submits that the Writ

Petition may be allowed.

Sri.Ganesh

S.Kalburgi.,

learned

counsel

for

respondent No.1 justified the order passed by the Trial Court.

Next, he submitted that the plaintiff has filed a suit for

partition contending that the suit schedule property is an

ancestral and joint family property. The nature of the property

has been admitted by the sixth defendant.

A further submission is made that taking note of the

material propositions put forth by the parties, the Trial Court

has framed