Sou. Ratnabai Lalasaheb Jadhav ... vs Balasaheb Digambar Jadhav And Ors
2021 Latest Caselaw 1720 Bom

                  Dusane                                    1/6                 5 wpst 7150.19.doc

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Bhalchandra                                  CIVIL APPELLATE JURISDICTION
G. Dusane

Digitally signed by                        WRIT PETITION (ST.) NO.7150 OF 2019
Bhalchandra G.
Dusane
Date: 2021.01.29
11:11:27 +0530



                       Sou. Ratnabai Lalasaheb Jadhav             ....   Petitioners
                       & Ors.

                               Vs.

                       Balasaheb Digambar Jadhav & Ors......               Respondents


                       Mr. Surel Shah for Petitioners.
                       Ms. Manisha Devkar i/by Shankar Katkar for Respondents.

                                                  Coram : NITIN W. SAMBRE, J.

Date : 27TH JANUARY, 2021 P.C.:

1. In a suit for partition being Regular Civil Suit No. 811 of

1999, the trial Court framed following Issues pursuant to the provisions

of Order 15 of Code of Civil Procedure.

"1 Do Plaintiffs prove that the suit properties are joint family properties of Plaintiff No.1 and Defendant No. 1?

2 Are Plaintiffs entitled to partition ? If yes, what is their share ?

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3. Are Plaintiffs are entitled to possession of their separate share ?

4 Is defendant No.8 entitled to partition? If yes, what is her share?

5 Is defendant No.8 entitled to possession of her separate share ?

6. Do Plaintiffs prove that Plaintiff No.2 received the share of Plaintiff No.1 by way of Will Deed dated 14/11/2000 ?

7. Do Plaintiffs prove that the sale deed dtd.

14/11/2000 is free from all the suspicious circumstances ?

8. Whether the suit is bad for non-joinder of necessary parties ?

9. Does defendant No.4 prove that there was already partition took place in the year 1950 between Plaintiffs and Defendants ?

10 Do Defendants prove that suit property 1249/2 is purchased property of defendant no. 1?

11 Are Plaintiffs entitled to mesne profit ?

12 What Order and decree ? "

2. On the aforesaid basis, the Plaintiff took out an application,

Exhibit 77 under the provisions of Order 18 of the C.P.C. thereby Dusane 3/6 5 wpst 7150.19.doc

claiming that since the defendants/petitioners have come out with a

defence of already existed partition, it is for the Petitioners to enter into

the witness box, which prayer is allowed vide order impugned dated

25th January 2019. As such, this petition.

3. The submissions of learned counsel for the Petitioners, Mr.

Surel Shah are, perusal of the issues framed demonstrate that only for

few issues, the burden is on the defendant no. 4, whereas majority of

the issues are required to be proved by the plaintiffs. He would then

invite attention of this Court to the provisions of Order 18 of the C.P.C.

so as to claim that in an enabling provisions, the defendants cannot be

directed by the Court to first enter into the witness box particularly

when the Plaintiff has right to began. He would support judgments of

this Courts in the matters of Bhagirath Shankar Somani and Another

Vs. Rameshchandra Daulal Soni and Another, reported in [2007 (5)

Mh,. L.J., page 508 and Haran Bidi Suppliers and another Vs. M/s V.M.

& Co.. Bhandara, reported in [2001 (4) Mh. L.J., page 112. and Gouri

Food Products, Nagpur Vs. Priya Trading Co., Nagpur, reported in

[2002(4) Mh. L.J., page No. 880.

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4. While countering aforesaid submissions, learned counsel

appearing for the Respondent-Plaintiff would urge that the issues

apparently demonstrate that it is for the defendant to prove that there

exist a partition and the defendant is also entitled for a separate share

particularly defendant No. 8. Drawing support of the judgment of this

Court, in matter of Sandip Sankarlal Kedia Vs. Smt. Pooja Sandip Kedia,

reported in AIR 2014 Bombay, page 26, the submissions are that the

trial Court was justified in ordering the defendants to began the

evidence. She would draw support from the observations made in

paragraph 51 of the judgment so as to claim that in Rule 2 of Order 18

makes it mandatory in the given situation to make the defendant to

enter into the witness box. As such, she sought dismissal of the

petitioner.

5. Considered rival submissions.

6. This Court has consistently held that the provisions of

Order 18 are enabling provision. The said order gives the plaintiff right

to began first qua recording of the evidence. As far as enabling Dusane 5/6 5 wpst 7150.19.doc

provisions thereunder is concerned, the Court is not vested with the

powers to direct the defendant first to enter into the witness box so as

to discharge the burden to prove certain issues.

7. Admittedly in the case in hand, majority of the issues are

required to be proved by the Plaintiff-Respondent and in a suit for

partition, the status of the parties to the suit is that of co-plaintiff.

8. In the aforesaid background, considering the law laid down

by this Court in the matter of Gauri Food Products (supra), it will be

appropriate in my opinion to direct the Respondent- Plaintiff to enter

into the witness box first pursuant to Order 18, Rule 1 CPC.

9. As such the impugned order dated 25th January, 2019

passed below Exhibit 77 is hereby quashed and set aside.

10. The Application Exhibit 77 stands rejected.

11. However, this Court will not preclude the trial Court from

appreciating the evidence of the parties qua the burden in regard to the

issue Nos. 10 and 11.

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11. The petition stands allowed in above terms.

( NITIN W. SAMBRE, J. )