This revision is directed against the order dated 05.07.2013 passed in the Memo filed by the plaintiff in O.S.No.161 of 2010 on the file of the learned District Munsif Court, Palladam, directing the plaintiff to begin the evidence to establish the plaint averments first.
2. The petitioner is the plaintiff and she filed the suit for partition of the suit properties into twelve shares and allot one such share to her and for possession of the same. The suit was resisted by the defendants by filing written statement.
3. Pending suit, the petitioner had filed Memo seeking direction on the respondents to begin the case and adduce evidence first. The said Memo was resisted by the respondents stating that since the suit is for partition, it is for the petitioner to prove that she is entitled to share in the suit properties on the date of opening of succession. It is also stated that the respondents were not liable to begin the evidence first.
4. Upon consideration of the rival submissions, the trial Court directed the petitioner to begin evidence to establish the plaint averments, especially the alleged joint possession and enjoyment of the suit property. Aggrieved by the same, the petitioner has filed the present revision.
5. I heard Mr.S.Gunalan, learned counsel for the petitioner. Despite service of notice, the respondents have not entered appearance. Perused the materials available on record.
6. Challenging the impugned order, the learned counsel for the petitioner submitted that the respondents have admitted the case of the petitioner qua relationship and the nature of the property, but denied the right of the petitioner on the plea of ouster. Therefore, the respondents have to begin the case first. He would submit that the trial Court ought to have accepted the Memo and directed the respondents to begin the case as per Order 18, Rule 1 C.P.C. In support of his submissions, the learned counsel relied upon the decision in Krishna Kumar and others v. V.Seethalakshmi and others, reported in CDJ 2013 MHC 859.
7. The Memo filed by the petitioner seeking direction on the respondents to adduce evidence first reads thus:
It is most humbly submitted that the plaintiff has filed this suit for partition and the defendants also filed detailed written statement and in the written statement the defendants admitted the relationship of the plaintiff and the defendants and also admitted the nature of the suit properties.
But in the written statement the defendants pleaded family arrangement and ouster and partial partition as their defence. Hence, the burden is only on the defendants to prove their contention of the written statement and as per law under Order XVIII Rule 1 of C.P.C. the defendants have to begin the case since they admitted the nature of the suit property and relationship between the parties. Hence the defendants have to begin the suit and adduce evidence first and latter only the plaintiff has to disprove the defence of the defendants.
Hence the defendants may be directed to begin the case and adduce evidence first. Hence, this memo may be received and recorded.
8. According to the petitioner, since the respondents pleaded family arrangement and ouster and partial partition, the burden was only on the respondents to prove their contention at the first instance as per the provisions under Order 18, Rule 1 C.P.C. To fortify his submission, the learned counsel relied upon the decision of this Court in Krishna Kumar and others v. V.Seethalakshmi and others, supra.
9. In Krishna Kumar and others v. V.Seethalakshmi and others, supra, the learned Single Judge of this Court held as under:
In this case too, the burden of proof lies on the party, who asserts a particular fact. The particular fact, which is asserted is, whether the property belonged to Narayana Asari absolutely. That fact has been asserted by the plaintiffs and also admitted by the defendants. Therefore, there is no burden of proof on the plaitiffs to prove that fact. Insofar as the onus of proof is concerned, it is held in that judgment, referred to above, that onus of proof by a party would cease, the moment, the opposite party admits the transaction. In this case, the onus of proof is on the defendants to prove the execution of the Will, that has been denied by the plaintiffs. Once defendants are able to prove the Will to the satisfaction of the court, the suit filed by the plaintiffs will be dismissed and there is no necessity to go into the further aspects of the matter, by letting evidence by the plaintiffs. Considering all these aspects, the Court below initially directed the defendants to lead evidence first and that was properly appreciated, while considering the Review Application. Further, I do not find any infirmity in the order passed by the Court below in the Review Application and there is no error apparent on the fact of record to interfere with the same.
10. In the facts and circumstances of the case, the learned Single Judge of this Court, in the above said decision observed that the condition stipulated in Order 18, Rule 1 I.P.C. since been satisfied and when the defendants pleaded right over the property under the Will, they will have to prove the Will and therefore, there was no infirmity in the order of the trial Court directing the defendants to lead evidence at first.
11. The decision in Krishna Kumar and others v. V.Seethalakshmi and others, supra, will not be applicable to the case on hand, for the reason that the very basis of joint possession alleged by the petitioner was denied by the respondents in the suit.
12. On a perusal of the plaint averments, it is seen that the petitioner is the daughter of the first respondent and sister of the other respondents and also they were the legal heirs of one Subbaiya Gounder, who was the husband of the first respondent. In her plaint, the petitioner had stated that after the demise of her father, she and the respondents succeeded the suit property and both the petitioner and the respondents were in joint possession and enjoyment of the suit properties. On a further perusal of the plaint, it is seen that the suit has been valued by the petitioner under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act and paid a fixed court fee of Rs.500/-.
13. On a perusal of the written statement, it is seen that the defendants have denied the joint possession and enjoyment of the petitioner, which is the basis for her case. Therefore, as rightly held by the trial Court, the petitioner who approached the Court averring that she is entitled to share in the suit properties, the initial burden lies on the petitioner first to establish her joint possession and enjoyment of the suit properties. There is no illegality and perversity in the order of the trial Court and the revision is liable to be dismissed.
14. In the result,
(a) the civil revision petition is dismissed by confirming the order passed in Memo filed in O.S.No.161 of 2010, dated 05.07.2013, on the file of the learned District Munsif Court, Palladam.
(b) the trial Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
23.02.2017 Note: Issue order copy on 01.10.2018 vs Index : Yes/No To The District Munsif, Palladam.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD) No.3493 of 2013 and M.P.No.1 of 2013 23.02.2017