Orissa HC Rejects Bid To Make Defendant Begin Evidence In Partition Suit, Says Adoption Burden Does Not Automatically Set Trial Sequence

The petitioner brought a partition suit concerning properties claimed to be ancestral.

He claimed to be the natural son of Late Sudam Charan Mohanty; Defendant No. 5 pleaded that the petitioner was adopted by Late Rabindranath Mohanty.

Before evidence commenced, the petitioner applied under Order XVIII Rule 1 CPC for a direction that Defendant No. 5 begin, arguing that the defendant bore the burden of proving adoption.

The Trial Court rejected the application on 7 April 2026, prompting this petition under Article 227 of the Constitution.

Order XVIII Rule 1 CPC gives the plaintiff the ordinary right to begin, subject to the exception where the defendant admits the plaintiff’s alleged facts but relies on law or an additional fact to resist relief.

The sequence of evidence must be determined with reference to the pleadings and issues; the burden of proving a particular issue does not invariably determine who must commence the entire trial.

Under Section 102 of the Evidence Act, the burden lies on the party who would fail if neither side adduced evidence; the party asserting adoption bears the burden of establishing that affirmative plea.

Order XIV CPC requires issues to be framed on material propositions affirmed by one party and denied by the other.

The Court relied on Jami Venkata Suryaprabha v. Tarini Prasad Nayak, (2024) 12 SCR 646, for the principles governing the right to begin and the Court’s discretion to sequence evidence.

Article 227 supervisory interference is limited to jurisdictional failure, patent error, or manifest injustice.

The Court treated Defendant No. 5’s adoption plea as an affirmative plea, not a mere denial, and held that the burden of proving it could not be shifted to the petitioner merely because he was the plaintiff.

It nevertheless distinguished the burden on a particular issue from the sequence of the entire trial and said that sequencing should be assessed by reference to the pleadings and issues.

The judgment’s reasoning is internally inconsistent: paragraph 26 states that the impugned order “requires reconsideration” and directs the Trial Court to determine sequencing afresh, while paragraphs 28–30 find no ground for interference and dismiss the petition.

However, paragraph 26 directs the Trial Court to reconsider the sequencing of evidence in light of the pleadings, framed issues, and burden concerning the adoption plea.

The operative dismissal and that direction are not reconciled in the judgment.