PARAMASIVAM Vs. ELUMALAI

JUDGEMENT

(1.) THIS civil revision petition is preferred against the fair and decretal order in I.A.No,295 of 2008 in O.S.No,42 of 2005 dated 04.09.2008 on the file of the Principal District Munsif, Villupuram allowing the application under Order 18 Rule 1 C.P.C.) Animadverting upon the order dated 04.09.2008, passed by the learned Principal District Munsif, Villupuram, in I.A.No,295 of 2008 in O.S.No,42 of 2005, this civil revision petition is focussed.

(2.) HEARD both sides.

(3.) A mere perusal of the lower Court's order, to say the least, is far from satisfactory as throwing to winds the basic principles of law governing adducing of evidence it passed such an order. The lower Court simply directed the defendant to adduce evidence at the first instance. The defendant no doubt places reliance on an agreement to sell under which he claims to be in possession of the property, whereas the case of the plaintiff is that he being the owner of the property and has been in possession and enjoyment of the same, in this bare injunction suit, inasmuch as the defendant disputes the possession of the plaintiff, it is the duty of the plaintiff to go into box first and adduce evidence to prove that as on the date of filing of the suit, he was in possession and enjoyment of the same. Simply because the defendant admitted that the plaintiff is the owner of the property and he and the defendant entered into an agreement to sell under which the defendant was put in possession, the onus or the initial burden would not be on the defendant. It is for the plaintiff only to prove his case at the first instance. The trial Court misdirected itself. Hence the order of the lower Court is set aside and it shall direct the plaintiff to adduce evidence first and thereafter the defendant is bound to adduce rebuttal evidence in support of his plea and his counter claim. Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.