IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No. 16890 of 2010

======================================================

KISHORI PRASAD SINGH @ WAKIL SINGH S/O Late Bisho Singh R/O

Vill.- Kapasia Tola, Nauraga Pregana Malki, P.O. P.S. Distt.- Begusarai.

… … Defendants No.1 ... Petitioner

Versus

1.AKIL DEO PRASAD SINGH @ JAGDISH SINGH S/O Late Biso Singh

R/O Vill.- Kaparia, Post Thana Sub-Division Distt.- Begusarai

2.Nitia Kumar (Minor) S/O Akildeo Pd. Singh R/O Vill.- Kaparia, Post Thana

Sub-Division Distt.- Begusarai

3.Adarsh Kumar (Minor) S/O Akildeo Pd. Singh R/O Vill.- Kaparia, Post

Thana Sub-Division Distt.- Begusarai.

… … Plaintiffs … Opposite Party 1

st

Set

4.Most. Tara Devi Widow of Late Bisho Singh R/O Vill.- Kaparia Tola,

Nauranga Pargana Malki, Post P.S. Sub-Division, Distt.- Begusarai

5.Smt. Neelam Devi Widow of Amrendra Singh R/O Vill.- Mirjapur Chand,

P.S.- Barauni, Distt.- Begusarai.

… … Defendants … Opposite Party 2

nd

Set

6.Sheo Dulari Devi W/o Ram Kishun Choudhary R/O Vill.- Mehan, P.S.Sub-

Division- Balia, Distt.- Begusarai.

… … Defendant … Opposite Party 3

rd

Set

... ... Respondent/s

======================================================

Appearance:

For the Petitioner/s: Mr. M.N. Parvat, Sr. Advocate

Mr. Sanjiv Sharan, Advocate

Mr. Sanjay Kumar Mishra, Advocate

For the Respondent/s: Mr. Sanjeet Kumar, Advocate

Mr. D.N. Singh, Advocate

======================================================

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

ORAL JUDGMENT

Date:03.04.2023

The present writ petition has been filed for

setting aside the order dated 19.08.2010 passed

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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by the learned Sub-Judge-III, Begusarai in Title Suit

No. 163 of 2002, whereby and whereunder the

petition filed by the plaintiff i.e. the opposite

parties 1

st

set herein under Order 18 Rule 1 read

with Section 151 of the Code of Civil Procedure,

1908 has been allowed and the defendant no. 1 i.e.

the petitioner herein has been directed to adduce

the evidence first.

2.The brief facts of the case are that the

plaintiffs-opposite parties 1

st

set are stated to have

filed a title partition suit bearing Title Suit No. 163

of 2002, before the learned Court of Sub-Judge-III,

Begusarai inter alia praying therein for passing a

preliminary decree for partition of 1/4

th

share of the

plaintiff in the Schedule-B property of the plaint as

also for carving out separate patti of the plaintiff

whereupon preliminary decree be made final and

the plaintiff be put in possession of the suit

property by the process of the Court. The

defendant No.1- petitioner herein and others had

appeared in the aforesaid suit and filed their

written statement, controverting the facts

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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stated/alleged in the plaint and after settlement of

the issues, the case was fixed for adducing

evidence, however, it is the case of the petitioner

herein that the plaintiffs-opposite parties 1

st

set

took several adjournments for adducing evidence

but failed to do so and finally after a lapse of about

eight years filed a petition on 19.03.2010, under

Order 18 Rule 1 read with Section 151 of the Code

of Civil Procedure, 1908, inter alia praying therein

to direct the defendants to adduce evidence first.

The petitioner had filed a rejoinder to the said

petition dt. 19.03.2010, stating therein that the

provisions contained in Order 18 Rule 1 of the Code

of Civil Procedure is not attracted in the facts and

circumstances of the present case on account of

the defendant-petitioner and others having not

admitted the averments and allegations made in

the plaint by the plaintiffs, however, the Ld. Court

of Sub-Judge-III, Begusarai by the impugned order

dated 19.08.2010 has allowed the aforesaid

petition filed by plaintiffs-opposite parties 1

st

set &

has directed the defendant-petitioner & others to

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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adduce evidence first.

3. The learned senior counsel for the petitioner

has referred to the plaint, more particularly

paragraphs no. 3 to 5, which are reproduced herein

below:-

“3. That there was registered partition dated

1.8.1987 between Baidyanath Singh and his

sons on the first part and Late Biso Singh and

his sons on the other part by which registered

partition all the ancestral property as also the

lands purchased by Baidyanath Singh and

late Biso Singh were partitioned and separate

and exclusive pattis of the two branches were

carved out by which Schedule-I of the

partition deed was allotted to the share of

Baidyanath Singh and Schedule-B of the

partition dated 01.08.1987 was allotted to

Biso Singh the late father of the plaintiff and

defendant no.1 which Schedule-B of the

partition deed also described in Schedule-B of

the plaint is the subject matter of the

partition in this suit and since this suit is for

partition of the share of the property of Late

Biso Singh, therefore arraying of parties of

the heirs of Baidyanath Singh and his

properties is not at all necessary to give in

this suit.

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4. That it is relevant to mention that some

properties exclusively purchased by Late Biso

Singh from his own income in the names of

his two sons who were then minors whose

alias names were mentioned in two sale

deeds dt. 22.1.1974 and 10.8.71 over which

properties Late Biso Singh remained in

exclusive possession along with his two sons

the plaintiff and defendant no.1 which is

described as item no. 2 in Schedule-B

property of the plaint, that being the joint

family property of the parties and over all the

Schedule-B properties, the plaintiff have 1/4th

share and defendant no. 1 has 1/4th share

and defendant no. 4 has 1/4th share.

5. That since some time passed the attitude

of the defendant no. 1 has become some

what different and not congenial, he being

the elder brother of the plaintiff who has not

been agreeing to the genuine and proper

demand of the plaintiff to have the Schedule-

B properties partitioned and soon after the

death of late Biso Singh the father, there was

trouble for partition of homestead land for

which an arbitration was held in 1998 by the

panches who directed by an award dated

25.3.1998 both the plaintiff and defendant

no.1 to have share in the homestead as per

their award dated 25.3.1998 both the plaintiff

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and defendant no.1 to have share in the

homestead as per their award but that was

thwarted out by defendant no 1 and the

defendant no.1 did not agree to the award

given as aforementioned and the defendant

no. 1 in spite of several demands made by

the plaintiffs for partition of Schedule-B

properties of the plaint has not agreed to it

and has started making construction of house

over survey plot no. 29 under khata no. 24 at

Begusarai Mirganj, hence the necessity of this

suit for partition arose. The defendant no. 1

sold 2 kathas land of joint family property to

defendant 2nd party hence she made party to

the suit and her purchased land should be

adjusted in the share of the defendant no.1.”

4. The Ld. senior counsel for the petitioner has

submitted that the aforesaid averments have

categorically been rebutted by the defendant no.1-

the petitioner herein as would be apparent from

paragraphs no. 9 to 18 of the written statement,

which are reproduced herein below:-

“9. That all the allegations raised in the plaint

by the plaintiff are denied in its entirely save

and except those which are specifically

admitted in this written statement.

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10. That the allegations in para no. 1 and the

genealogical table has not been correctly but,

hence that is denied, this fact is true that Biso

Singh died leaving behind two sons out of

whom Kishori Singh alias Okil Singh alias

Jagdish Singh is the elder son and Akildeo

Singh having only name is the younger son

Akil Deo Singh having no alias name as

Jagdish Singh.

11. That the allegations in para no.2 in the

plaint has not been correctly put, hence that

is denied.

12. That the allegations raised in para no. 3 is

also denied as they were not been put

correctly. It may be submitted here, that

there was Registered partition dated 1.8.1987

between Baidyanath Singh and his sons on

the one side and Late Bisho Singh and his son

the other side and both the son of Sital Singh

got partitioned their ancestral property, but

the land of survey plot no. 291 were not

made subject to that partitioned deed, with

respect to the plot purchased from the

income of gift articles of defendant no.1. It

may be submitted that defendant no. 1 is the

elder son of late Bisho Singh who was born in

the year 1969 and as Late Bisho Singh was

leading business man and after a good lapse

of marriage, 1

st

son born on the occasion of

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First Chhathi, so many gift articles were

presented to defendant no.1, by all the

businessmen and that gift articles and the

Asharfi presented by Nanas and others, and

as Bisho Singh was a leading businessman so

he used the income of the gift articles in

business and after a good earning Late Bisho

Singh purchased land in Mouja-Mirganj and

Navranga in the name of defendant no.1 and

also in the name of Tara Devi, and as their

lands were purchased by Bisho Singh from

the gift articles presented by all the business

men to this defendant no.1 when he was a

little chap hence the land fully detailed

Mouja-Mirganj and Nauranga cannot be

subject matter of partitioned and that land is

out of presumption of Jointness and that

property shall be deemed to be the exclusive

property of the defendant no.1 This was the

main cause that the property of Nauranga

and Mirganj were not added in the partition

deed of dated 1.8.1987.

13. That as the lands purchased in the name

of defendant no. 1 and his mother from the

income of gift articles present to the

defendant no.1 came in existence prior to the

Registered partition of 1987 and if there

would have been otherwise matter the land

should not have been excluded from the

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partition deed.

14. That the allegations raised in para no. 4 of

the plaint are quite false and baseless hence

they are denied. It may be submitted here

that the sale deed dated 22.1.1974 and

10.1.1971, both the deeds are in the name of

defendant no.1, but not in the name of two

sons and it also may be mentioned here that

Late Bisho Singh has purchased some land

from his personal income out of Mouja-

Mirganj and Nauranga and the plots of Mouja-

Nouranga is the exclusive property of the

defendant no.1 and that has been purchased

from the sale proceed which were invested in

business by Late Bisho Singh and outcomes

of that investment in business. The land of

Mouja-Nauranga and Mirganj were purchased

and accordingly Late Bisho Singh during his

life time handed over land and house

standing over Mouja- Mirganj and Nauranga

to defendant no.1 and since 1990 defendant

no.1 is doing business their exclusively and

as such had given those portion of the house

and land of Mouja-Nauranga and Mirganj is in

possession of defendant no.1 as a rightful

owner in the knowledge of the plaintiff and

also defendant no.4 and 5 as during the life

time of Late Bisho Singh the plaintiff and Tara

Devi was ousted from the land of Mouja-

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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Nauranga and Mirganj so any right over these

portion of land as aforesaid the plaintiff or

defendant no.4 and 5 cannot claim and that

claim cannot be considered legally. And there

is no joint property of house over survey plot

no. 291 and there is no joint family property

specially in Mouja-Mirganj and Nauranga any

claim of partitioned over those plots cannot

be mentioned in any of the ways and the

claim of partitioned by plaintiff is forged and

fabricated.

15. That the allegations in para no.5 are quite

false and baseless hence those allegations

are denied in toto. It may be submitted here

that even after the death of his father, the

defendant no.1 tried to improve the condition

of plaintiff by giving them some money, and

all the dues and debts of his Late father was

paid by defendant no.1 having intention to

improve his younger brother and also was

helping to his sister defendant no. 5, who

were given the lands by his late father, so

that she cannot claim after the death of Bisho

Singh and over those portion, (sic) when

defendant no. 5 began to construct house this

defendant no. 1 gave her Rs. 50,000/- to the

defendant no. 5 and as the financial condition

of defendant no.1 became weak and he was

unable to discharge (sic) debt of his father,

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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so he sold 2 kathas of land, and by that

amount defendant no. 1 paid the debt of his

father, and also paid to his sister and younger

brother and mother. This helping attitude of

defendant no.1 was wrongly considered by

the plaintiff and they coming in collusion to

one together got plan to harm defendant no.1

this suit on false ground has been filed with

mischievous intention. It may be submitted

here again that all the property which was

acquired by the late father of plaintiff and

defendant no.1 and also defendant no. 5 and

husband of defendant no. 4 from his personal

acquisition has already been divided between

the plaintiff and defendant no.1, defendant

no.4 has already been given her share during

the life time of her father, so they are stopped

to claim to any share in the paternal property

and the land and house standing over survey

plot no. 291 is the gifted property as

aforesaid. So the specific plot cannot be the

subject matter of partition.

16. That it may be submitted that the

allegation of para no. 5 about the award of

the Arbitrators dt. 25.3.1998 is not in the

knowledge of this defendant no.1 and the

plaintiff put their strict proof thereof about

the award although it is clear that prior to the death

of Late Bisho Singh the property were divided in two

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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parts save and except the residential house as

all were residing there, and the house and

shop standing on survey plot no.291, and as

that land was purchased with the outcomes

of earnings during the first "Chhathi" of

defendant no.1, hence the same is the

exclusive property of defendant no. 1.

17. That it may be submitted here that there

is 1 katha 10 dhurs and 10 dhurkies of land

which were purchased by Late Bisho Singh

and has also been divided among the two

brothers half and half and in this way the

defendant no.1 had been allotted 1 katha 11

dhurs 15 dhurkies of land and plaintiff has got

only 6 dhurs and 13 dhurkies only, and other

lands save and except Mouja-Mirganj and

Nauranga were divided half and half during

the life time of Bisho Singh and that time Tara

Devi had no claim, and she was leaving with

her elder son defendant no.1, and the money

which was deposited in her name by

defendant no.1 as such the amount in fix

deposit is also the personal amount of

defendant no.1, hence that cannot be

withdrawn or claim by any one without the

consent of defendant no. 1 can (sic) it will

also be relevant to mention here that due to

the sudden illness of his father defendant no.

1 took his father in Indira Gandhi Medical

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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Institute on 13.8.1997 and getting the

absence of the defendant no.1 the plaintiff

brought money from Ratan Oil Mill having his

Head Branch 'Delhi amounting to Rupees

near about 27000/- which was the personal

property of defendant no.1 and defendant

no.1 also sold 120 bags of Andi amounting to

Rupees 74958/- and that was grabbed by the

plaintiff and when defendant no.1 demanded

sale amount of 120 Bags of Andi which was

the personal acquisition of his father and also

the half debt of his father which was paid by

the defendant no.1 except the consideration

amount of 2 kathas of land, then in that case

the suit has been filed only to give harm to

the defendant no.1. It may be also mention

that no portion of the land has been

purchased in the name of plaintiff no.1.

18. That the claim of partition and also the

cause of action thereof are all false and

baseless hence that are denied in toto.”

5. The Ld. senior counsel for the petitioner has

submitted that the claim put forth by the plaintiffs-

opposite parties 1

st

set have been denied by the

defendant no. 1-plaintiff in his written statement,

as aforesaid, hence there was no occasion for the

learned court below to have passed the impugned

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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order dated 19.08.2010, directing defendant no. 1

to adduce evidence first. In this regard, the learned

senior counsel for the petitioner has referred to a

judgment rendered by a coordinate Bench of this

Court in the case of Mohammad Jahangir vs.

Sajda Khatoon & Ors. , reported in 2007 (4)

PLJR 100, paragraphs no. 3 to 6 whereof are

reproduced herein below:-

“3. At this stage, the plaintiff filed an

application in terms of Order XVIII Rule 1 of

CPC which is reproduced as under:-

Right to begin:- The plaintiff has the

right to begin unless the defendant

admits the facts alleged by the plaintiff

and contends that 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.

4. On behalf of plaintiff-petitioner, it is

submitted that as the defendants had

pleaded to non-suit the petitioner, the

defendants must begin. In my view, the view,

as canvassed with reference to Order XVIII

Rule 1, is misconceived.

5. The general rule as to plead and prove is

that one who pleads must prove the

exception being where the pleading of one is

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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admitted by the adversary. In such an event,

the person pleading the fact is relieved of his

obligation to prove the pleading as it is

admitted. The rational of Order XVIII Rule 1 is

based on these two principles put together. It

is to be seen that once the defendant admits

the facts as pleaded by the plaintiff then the

plaintiff is relieved of proving his case. The

obligation would then normally travel to the

defendant to plead his case first. The

requirement of Order XVIII Rule 1 is first that

there should be an admission of facts by the

defendant as pleaded by the plaintiff which

facts in spite of admission would not entitle

the plaintiff to any relief or would disentitle

the plaintiff to any relief on a separate set of

facts pleaded by the defendant. Primarily,

there has to be first admission of facts by

defendant. Secondly, it would be seen that

this provision only gives a right to the

defendant to begin whether he exercises that

right or not the option is his. If Order XVIII

Rule 1 made it obligatory on part of the

defendant to begin then the section would be

worded otherwise. The section is only

conferring a right on the defendant but does not

make it obligatory, for if it was to operate as an

obligatory responsibility then it can simply be

drafted as 'defendant shall proceed" and not

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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"that the defendant has the right to begin".

The words would be "that the defendant had

the duty to begin".

6. In the present facts, it would be seen that

the defendants have made no admission to

the pleadings of the plaintiff. Defendants

have disputed the factum of the properties

being unpartitioned ancestral properties,

therefore, the plaintiff has to begin. In view of

the aforesaid, I find no infirmity in the

impugned order and this revision is, thus,

liable to be and is dismissed.”

6. Per contra, the Ld. counsel appearing for the

plaintiffs-respondents has submitted that the

petitioner herein has admitted the factum of

partition amongst the parties in paragraph no. 16

of the written statement filed in the aforesaid suit,

hence the defendant has the right to begin. In this

regard, the petitioner has referred to various

judgments rendered by various High Courts, which

are enumerated herein below:-

(i) 2018 AIR CC 59, rendered by the Hon’ble

High Court of Orissa at Cuttack.

(ii) Judgment dated 18.07.2022 passed by a

learned Single Judge of the Hon’ble Delhi High

Court in CS(OS) 587 of 2017.

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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(iii) 2016 (1) PLJR 319.

7. I have heard the learned counsel for the

parties and gone through the materials on record

as also perused the impugned order dated

19.08.2010. This Court finds from a bare perusal of

the plaint and written statement filed in the

aforesaid Title Suit No. 163 of 2002 that the

defendant no.1-petitioner has not only disputed

the award of the Arbitrator dated 25.03.1998,

regarding both the plaintiff and the defendant no.

1 having share in the homestead land but has also

disputed the factum of the suit properties being

unpartitioned ancestral properties, as is apparent

from the averments made in the written

statement, which have been reproduced herein

above in the preceding paragraphs. Thus, the

requirement of Order 18 Rule 1 of the Code of Civil

Procedure, to the effect that there should be

admission of facts by the defendant, as

alleged/pleaded by the plaintiff, which facts in

spite of admission would not entitle the plaintiff to

any relief or would disentitle the plaintiff to any

Patna High Court CWJC No.16890 of 2010 dt.03-04-2023

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relief on a separate set of facts pleaded by the

defendant, is not fulfilled in the present case and

moreover, this provision of Law only confers a right

on the defendant but does not make it obligatory,

inasmuch as if this Section had made it obligatory

on the part of the defendant to begin, then the

Section would have been worded otherwise. The

present case is squarely covered by the judgment

rendered by a coordinate Bench of this Court in the

case of Mohammad Jahangir (supra). Thus, this

Court finds that the impugned order dated

19.08.2010 passed by the Sub-Judge-III, Begusarai

in Title Suit No. 163 of 2002, directing the

defendant no. 1 i.e. the petitioner herein to adduce

evidence first, suffers from legal infirmity and is

contrary to the requirements of Order 18 Rule 1 of

the Code of Civil Procedure, hence is fit to be

quashed.

8. At this juncture, it would be relevant to refer to

the judgments referred to by the learned counsel for

the plaintiffs- opposite parties 1

st

set, as have been

noted herein below in the preceding paragraphs, to

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only state that the same are distinguishable in the

facts and circumstances of the present case.

9. Having regard to the facts and circumstances

of the case and for the reasons mentioned herein

above, I deem it fit and proper to set aside the

order dated 19.08.2010, passed by the learned

Sub-Judge-III, Begusarai in Title Suit No. 163 of

2002.

10. The writ petition stands allowed.

S.Sb/-

(Mohit Kumar Shah, J)

AFR/NAFR AFR

CAV DATE N/A

Uploading Date 24.08.2023

Transmission Date N/A