Case Background
The dispute arises from Partition Suit No. 156 of 2017 filed before the court of the Sub Judge, Bagaha, in West Champaran district.
In that suit, the plaintiff claimed that there was unity of title and unity of possession between him and the defendants over the suit property. He claimed a 6/20 share and asked the court to pass a preliminary decree for partition and to carve out a separate takhta for his share.
The defendants entered appearance. A joint written statement was filed on behalf of defendant nos. 1 and 2. Defendant no. 5 filed a separate written statement.
In these written statements, the defendants took the stand that the partition suit was not maintainable because some necessary parties had not been added. They also stated that a partition had already taken place in the year 1988 with respect to certain properties. They specifically denied that a joint family and unity of title and possession still continued, saying that such unity had already ceased in 1988.
After studying these written statements, the plaintiff filed a petition on 09.12.2022 in the partition suit. He argued that from the defendants’ own pleadings, it was clear that there had been a partition in the family of his father and his sons in 1988 and therefore there was no longer unity of title and possession between the parties.
On this basis, the plaintiff requested the trial court to direct defendant nos. 1, 2 and 5 to adduce their evidence first. He treated the statements in the written statements as admissions and wanted the defendants to begin with their witnesses.
By order dated 06.04.2023, the learned Sub Judge, Bagaha allowed the plaintiff’s petition and directed defendant nos. 1, 2 and 5 to produce their witnesses on the next date.
Feeling aggrieved, one of the defendants approached the Patna High Court through Civil Miscellaneous No. 576 of 2023, seeking to set aside this order of the trial court.
What the Court Examined and Decided
The Patna High Court heard learned counsel for both sides. The core question before the Court was simple but important: in this partition suit, who should begin leading evidence, the plaintiff or the defendants?
The petitioner before the High Court was one of the defendants in the partition suit. His counsel explained the nature of the suit and the rival stands taken in the pleadings.
Counsel pointed out that it was the plaintiff who had approached the Sub Judge seeking a declaration that there was unity of title and unity of possession over the suit property and asking for partition and a separate takhta. The defendants, on the other hand, were disputing this claim.
The defendants’ written statements said that there had already been a partition in 1988 regarding certain properties. They denied that the joint family still continued or that there was unity of title and possession after that year. They also raised an objection that the suit was not maintainable because all necessary parties had not been impleaded.
Against this backdrop, counsel for the petitioner argued that under the Code of Civil Procedure, the normal rule is that the person who comes to court and makes a claim has to prove it. In other words, “one who pleads must prove.”
He submitted that in a partition suit like this, it is the plaintiff who is asserting that the family is still joint, that there is unity of title and possession, and that he has a 6/20 share. Therefore, the burden to begin the evidence should lie on the plaintiff, not on the defendants.
The legal debate centred around Order XVIII Rule 1 of the Code of Civil Procedure (C.P.C.), which deals with the “right to begin” when evidence is to be recorded.
The Court reproduced the text of Order XVIII Rule 1:
“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.”
On a plain reading, the rule says that usually the plaintiff begins. However, if the defendant admits the facts alleged by the plaintiff and only raises a legal objection or pleads some additional facts to show why the plaintiff is not entitled to relief, then the defendant may exercise a right to begin.
The counsel for the petitioner stressed two points flowing from this rule.
First, there must be an admission of the facts as pleaded by the plaintiff. Only when such admission exists, and yet the defendant says that on law or additional facts the plaintiff is not entitled to relief, can the defendant claim the right to begin.
Second, even in such a situation, it is only a “right” to begin, not a compulsory “duty” to begin. The defendant may choose to exercise it or may let the plaintiff go first.
To support these submissions, counsel relied upon the Patna High Court judgment in Mohammad Janangir @ Mohammad Jahangir Alam vs. Sajda Khatoon, reported in 2007 (4) PLJR 100. The High Court extracted paragraph 5 of that decision, which explains the rationale of Order XVIII Rule 1.
In that earlier case, the Court had held that the general rule is that the party who pleads must prove, and an exception arises only when the rival party admits the pleading. When there is such an admission, the party who pleaded the fact is relieved of proving it and the obligation shifts to the other side.
Paragraph 5 clarified that for Order XVIII Rule 1 to shift the right to begin, there must first be an admission of the facts by the defendant exactly as pleaded by the plaintiff. Secondly, the provision merely gives a right to the defendant to begin. It does not impose an obligation or duty. If it were meant to be mandatory, the section would have used language like “the defendant shall proceed” or “the defendant had the duty to begin,” instead of saying that he “has the right to begin.”
Counsel also pointed out that the judgment in Chandradeo Singh & Ors. vs. Moti Devi & Ors., reported in 1992 1 BLJR 280, was relevant on the same point.
Applying these principles to the facts before it, the Patna High Court closely examined the pleadings in the partition suit. The Court noted that the plaintiff had asserted unity of title and unity of possession and claimed a 6/20 share. The defendants had not admitted these facts. Rather, they had denied the subsistence of the joint family and unity of title and possession, saying these had ended with the 1988 partition.
Therefore, the basic requirement of Order XVIII Rule 1, that the defendant must admit the plaintiff’s facts, was not satisfied in this case. Without such admission, the case could not be treated as one where the defendants were bound to begin.
The Court emphasised that the “right to begin” under Order XVIII Rule 1 cannot be turned into a “duty to begin.” The defendants cannot be compelled by the court to lead evidence first merely because the plaintiff chooses to interpret some pleading as an admission.
The High Court held that since the plaintiff is the one who has asserted the claim and sought partition, he is required to lead evidence first. Only after the plaintiff has led his evidence would the defendants be called upon to adduce their evidence.
Accordingly, the Court found the trial court’s order dated 06.04.2023 to be legally unsustainable. By forcing defendant nos. 1, 2 and 5 to produce witnesses first, the Sub Judge had wrongly treated a discretionary “right” of the defendants as a binding “duty.”
The Patna High Court therefore set aside the impugned order passed in Partition Suit No. 156 of 2017.
At the same time, the Court clarified that the plaintiff may still exercise his option under Order XVIII Rule 3 of the C.P.C. This provision allows the party beginning the evidence to reserve his right to address evidence on some issues after the other side has produced its evidence.
With these observations and directions, Civil Miscellaneous No. 576 of 2023 was disposed of.
Why This Judgment Matters
This judgment is important for anyone involved in civil litigation, especially family partition cases.
First, it confirms that in normal circumstances, the plaintiff who files a case must lead evidence first. A defendant cannot be forced to start unless he has clearly admitted all the facts of the plaintiff’s case and only disputes the legal effect or adds separate facts.
Second, it warns that trial courts should not treat the defendant’s “right to begin” under Order XVIII Rule 1 as a compulsory duty. If courts misuse this rule, it can unfairly burden one side and disturb the basic rule that “who claims, must prove.”
Third, the case shows that even interim or procedural orders about the sequence of evidence can be corrected by the Patna High Court when they are contrary to law. This provides reassurance to litigants that procedural fairness will be protected.
For parties in partition suits in Bihar, the judgment makes it clear: if you file the suit claiming a share and joint status, you must be ready to bring your witnesses and documents first.
Legal Issues and Answers
- Issue: In a partition suit where the defendants deny the plaintiff’s claim of unity of title and possession, can the trial court direct the defendants to lead evidence first on the ground of alleged admissions in their written statements?
Answer: No. The Patna High Court held that the “right to begin” under Order XVIII Rule 1 C.P.C. is only a right, not a duty, and in the absence of clear admission of the plaintiff’s facts by the defendants, the plaintiff must lead evidence first. - Issue: Whether the order directing defendant nos. 1, 2 and 5 to produce their witnesses first in Partition Suit No. 156 of 2017 was valid?
Answer: No. The High Court set aside the order dated 06.04.2023 and directed that the plaintiff(s) should lead evidence first, subject to their option under Order XVIII Rule 3 C.P.C.
Cases Cited by the Court
- Mohammad Janangir @ Mohammad Jahangir Alam vs. Sajda Khatoon, 2007 (4) PLJR 100
- Chandradeo Singh & Ors. vs. Moti Devi & Ors., 1992 1 BLJR 280
Case Details
Case Number: Civil Miscellaneous Jurisdiction No. 576 of 2023
Case Title: Pradeep Kumar Pandey @ Dr. Pradeep Kumar Pandey vs. Alok Kumar Pandey & Ors.
Coram: Hon’ble Mr. Justice S. B. Pd. Singh
Citation: 2026 (3) PLJR 546
Date of Judgment: 08.05.2026
Court: High Court of Judicature at Patna
Advocates: Mr. Prerna Anand, Advocate, and Mr. Uday Shankar Singh, Advocate, for the petitioner; Mr. Chandra Kant, Advocate, for the respondents.
Nature of the Case: Civil Miscellaneous application challenging an interlocutory order in a partition suit regarding the sequence of evidence.
Impugned Order: Order dated 06.04.2023 passed by the Sub Judge, Bagaha in Partition Suit No. 156 of 2017 directing defendant nos. 1, 2 and 5 to produce their witnesses first.
Final Outcome: Impugned order set aside; plaintiff(s) directed to lead evidence first, with liberty to exercise option under Order XVIII Rule 3 C.P.C.; Civil Miscellaneous No. 576 of 2023 disposed of.
Link to judgement; https://patnahighcourt.gov.in/viewjudgment/NDQjNTc2IzIwMjMjMSNO-kNA–ak1–XZ18LjI=
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