In Pradeep Kumar Pandey @ Dr. Pradeep Kumar Pandey vs. Alok Kumar Pandey & Ors. (2026), Justice S. B. Pd. Singh of Patna High Court delivered a 7-page long judgement dated May 8, 2026, wherein, it set aside the impugned order dated April 6, 2023 passed in a Partition Suit of 2017 and directed the plaintiffs to lead their evidence first. However, he may exercise their option in terms of Order XVIII Rule 3 of C.P.C. 10. Accordingly, the instant Civil Misc. No. 576 of 2023 stands disposed of.
The Civil Miscellaneous Application was filed for setting aside the order dated April 6, 2023 passed in Partition Suit of 2017, whereby and whereunder the court below had allowed the petition filed by the plaintiff (Respondent No. 1) and directed defendant Nos. 1, 2 and 5 to produce their witnesses on the next date.
The plaintiffs had instituted Partition Suit in 2017 in the court of the Sub Judge, Bagaha, seeking a declaration that there exists unity of title and unity of possession between the plaintiff and the defendants over the suit property, wherein the plaintiff claims 6/20 share, and for passing of a preliminary decree for partition, followed by carving out a separate takhta of his share. It was also submitted that after appearance, a joint Written Statement was filed on behalf of Defendant Nos. 1 and 2, and a separate Written Statement was filed on behalf of Defendant No. 5, wherein it has been stated that the suit is not maintainable for non-joinder of necessary parties. It was also stated in the Written Statement that partition had already taken place with respect to certain properties in the year 1988, and the allegation regarding subsistence of joint family and unity of title and possession had been specifically denied on the ground that the same ceased in the year 1988 itself. It was also submitted that the plaintiff filed a petition on December 9, 2022 in a Partition Suit of 2017 stating therein that, upon perusal of the Written Statements filed by Defendant Nos. 1, 2 and 5, it was evident that partition in the family of the petitioner’s father and his sons had already taken place in the year 1988, and thus there was no unity of title and unity of possession between the parties. On this basis, the plaintiff prayed before the court for issuance of a direction to Defendant Nos. 1, 2 and 5 to adduce their evidence first, in view of the alleged admission in the Written Statements. The petition was allowed by the impugned order dated April 6, 2023, which is under challenge before the High Court.
The counsel for the petitioner/defendant submitted that under Order XVIII Rule 1 of the C.P.C., the right to begin is conferred upon the defendant, provided the case falls within the ambit of the said provision. Order XVIII Rule 1 of the C.P.C. reads: “1. Right to begin – The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents 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.”
The counsel for the petitioner/defendant also submitted that, ordinarily, the burden of proof lies upon the party who asserts a fact. But in this case, since the plaintiff had sought partition, the onus to begin the evidence lied upon the plaintiff and not upon the defendant. It was also submitted that the “right to begin”
envisaged under Order XVIII Rule 1 cannot be construed as a “duty to begin.”
The counsel placed reliance upon the judgment in Mohammad Janangir @ Mohammad Jahangir Alam vs. Sajda Khatoon, reported in 2007 (4) PLJR 100. Paragraph 5 of the said judgment is reads: “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 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 plead 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 the 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 “the defendant shall proceed” and not “ that the defendant has the right to begin”. The words would be “that the defendant had the duty to begin”.”
Justice Singh noted that the judgment in Chandradeo Singh & Ors. vs. Moti Devi & Ors. reported in 1992 1 BLJR 280 was also relevant. "8. On the anvil of the aforesaid principle, and upon perusal of the entire factual matrix of the case, it appears that the “right to begin” cannot be construed as a “duty to begin,” and the defendants cannot be compelled to adduce evidence first. Rather, it is the plaintiff who has asserted his
claim and sought partition; therefore, the plaintiff is required to lead evidence in the first instance, followed by the defendants."
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