The burden of proof lies on the plaintiff to establish his claim when not admitted in pleadings.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI

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ON THE 25 OF SEPTEMBER, 2025 MISC. PETITION No. 5072 of 2025 NASIR KHAN Versus RAISA BI AND OTHERS Appearance:

Shri Kamal Singh Rajput - Advocate for the petitioner.

ORDER Present petitioner, being the original plaintiff has approached this Court invoking the provisions of Article 227 of the Constitution of India, assailing the order dated 25.08.2025 (Annexure-P/5) passed by the Fifth Civil Judge, Senior Division, Khandwa (M.P.) rejecting the application filed by the petitioner under Order 18 Rule 1 of the Code of Civil Procedure [hereinafter referred to as 'CPC'] seeking a direction to call upon the defendants to lead evidence first.

2. The present petition has been preferred at the instance of the original plaintiff of the plaint; the respondents are the original defendants. The petitioner had preferred a suit bearing RCS-A No.46 of 2022 in the court of Fifth Civil Judge, Senior Division, Khandwa (MP) claiming declaration of title and permanent injunction in respect of land bearing khasra No.90/2 area admeasuring 0.03 decimal situated at Village-Khandwa, Mali City, Anand Nagar, District-Khandwa [hereinafter referred to as 'the suit property']. After filing of the suit, summons were issued and the respondents have marked their appearance, filed written statement and denied the averments made in the plaint.

3. After framing of issues, though, before commencement of the trial, the petitioner had moved an application under Order 18 rule 1 of CPC on the ground that prior to the present suit, in an earlier suit bearing No.15-A/2022 filed by Smt. Jamila Khatun, Anis Fatma and Suraiya Begam against the petitioner, the petitioner had filed a counter civil suit wherein the respondents Signature Not Verified have made averments regarding the suit property to the extent of admission of ownership of the petitioner over the suit property. By way of said application, a prayer had been made to direct the respondents/defendants to start the evidence in compliance to the provisions of Order 18 rule 1 of the CPC in light of estoppel and mixed question of law. The application was opposed by the respondents/defendants by filing reply on the ground that the present suit has been filed by the plaintiff pretending himself to be the owner of the suit property as the original owner, namely, Bashir Mohammad has given Bakshish to the plaintiff/petitioner. The application was vehemently opposed also on the ground that the plaintiff has failed to produce any document regarding Bakshish and thus, the burden to prove his ownership over the suit property, is upon the plaintiff.

4. The learned trial Court, vide impugned order dated 25.08.2025, has dismissed the application stating that the base of filing the present suit is the bakshish said to have been given by the original owner of the suit property; although, in the plaint, it has been stated that the suit property is in possession of the plaintiff, but the possession and bakshish are different; the plaintiff has failed to produce any document regarding grant of Bakshish and thus, the same was granted orally, therefore, looking to the provisions of Section 102 of the Indian Evidence Act , the burden to prove his ownership, lies upon the plaintiff. The aforesaid observations of the trial Court have given cause of action to the plaintiff/petitioner to file the present petition.

5. Learned counsel for the petitioner has assailed the impugned order submitting that the same suffers from patent illegality. The provisions of Order 18 Rule 1 of CPC are to facilitate fair trial and proper adjudication of issues. If admission is proved, then the provisions of Order 18 Rule 1 of CPC come to play. It is argued that once admission is on record, then the burden shifts to the defendants as per Section 102 o