NIRANJAN NATH Vs. RABINDRA NATH SHARMA

JUDGEMENT

(1.) In this writ application, pe-titioners have assailed the legality of order dated 8-10-2010 passed by the learned Civil Judge (Sr. Divn.), Jagatsinghpur in Title Suit No. 74 of 2002 rejecting their petition under Order 18, Rule 1 of the C.P.C. to direct the opposite parties to adduce their evidence before petitioners' adduce their evidence.

(2.) Petitioners are the plaintiffs and oppo-site parties are the defendants in Title Suit No. 74 of 2002 which is a suit for partition. Plaintiffs' case is that parties to the suit rep-resent three branches of the joint family through Sankar, Basu and Bhasi, the grand-sons of Laxman alias Trilochan, the common ancestor. Plaintiffs are descendants of Basu and Bhasi whereas defendants are descen-dants of Sankar. It is pleaded by the plain-tiffs that, since there was increase in the num-ber of family members, for convenience Basu and Bhasi were living separately in mess and residence without partition by metes and bounds of the suit properties over which there is unity of title and possession. In their writ-ten statement defendants Have resisted the claim of partition. When the suit was pend-ing for hearing, after settlement of issues, defendants filed petition under Order 18, Rule 1 of the C.P.C. in response to which the impugned order was passed.

(3.) It was contended by the learned coun-sel for the petitioners that in reply to plain-tiffs' assertion that suit properties were joint family properties, defendants have categori-cally pleaded in their written statement at Paragraph 15 (f) that there has already been previous partition among Sankar, Basu and Bhasi. In such circumstances, defendants are obliged to begin the hearing in view of pro-visions under Order 18, Rule 1 of the C.P.C. In support of his contentions learned coun-sel for the petitioners placed reliance on the decision of this Court in Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 1 OrissaLR 72.