Jagat Narayan, J.
1. This is a revision application by one of the defendants against an order of the trial court allowing the plaintiffs to produce evidence in rebuttal of the evidence produced by the defendants on issues 3, 4 and 5.
2. The dispute is relating to the properties which formerly belonged to the late Maharaja Guman Singh, who was the grandson of Maharaja Takhat Singh, Ruler of Jodhpur State. Guman Singh had 3 sons, Narpat Singh, Amar Singh and Raghunath Singh, out of whom Narpat Singh is the eldest. Narpat Singh has a son Inderjit Singh. During the life-time of Guman Singh, Narpat Singh took a second wife against the wishes of his father and was disinherited by him and Inderjit Singh was appointed as his successor. After the death of Guman Singh, Inderjit Singh was regarded as a successor. Narpat Singh was then alive. Maji Sahiba Smt. Jawahar Kanwar was appointed as his guardian and Raghunath Singh was appointed as the manager of the estate.
3. The present suit was instituted originally by Raghunath Singh claiming one-fourth share in the properties on the allegation that Guman Singh, his wife, and his sons constituted a joint Hindu family. In his capacity as Manager Raghunath Singh had made various admissions in writing in which it was stated that Guman Singh's properties constituted an impartible estate which descended by the rule of primogeniture and that a family arrangement was made by Guman Singh during his life-time. These admissions went against the case set up in the plaint by Raghunath Singh. He asserted in the plaint that these admissions were obtained fraudulently from him. The suit was contested by Narpat Singh and Inderjit Singh. Amar Singh and Maji Sahiba Smt. Jawahar Kunwar who had originally been impleaded as defendants were transposed as plaintiffs.
4. On the pleadings of the parties the following issues were framed:--
(1) Whether the various admissions of the plaintiffs in the application for appointment of guardian of minor Rajkumar Inderjit Singh and in the various affidavits filed by the plaintiffs in support of the application were obtained by fraud and misrepresentation of facts as well as of law as pleaded in paras 6 and 7 of the plaint and as such the admissions in the applications and affidavits are not binding on the plaintiffs?
(2) Whether the plaintiffs are entitled to get 1/4th share each in the disputed property?
(3) Whether the parties to the suit are not members of a joint Hindu family nor they are governed by principles of Hindu Law?
(4) Whether the suit property is impartible and succession to the same is governed by law of primogeniture and if so whether the suit for a partition is not maintainable?
(5) Whether Maharaj Guman Singh Ji made a family arrangement of the property in dispute as pleaded in para 2 (b) and additional plea in para 4 of the written statement of defendant No. 1 and if so whether the family arrangement made is valid?
(7) Whether the family arrangement was acted upon by the plaintiffs and the plaintiffs by their acceptance and conduct are bound by it and are estopped from challenging the same?
(9) Whether the plaintiffs are in joint possession of the property in dispute? If not whether the suit is not maintainable without payment of ad valorem court-fee?
(10) Whether the suit is not maintainable unless the plaintiffs get a succession certificate and have their various admissions set aside?
(11) Is the suit barred by Section 47 of the Rajasthan Land Reforms and Resumption of Jagirs Act 1952 and by Section 13 of the Rajasthan Jagir Decisions and Proceedings Validity Act, 1955?
(12) Whether defendant No. 4 Rajkumar Inderjit Singh was declared successor of Maharaja Guman Singh Ji by Additional Collector, Jodhpur, by his order dated April 13, 1959, and if so whether the suit by the plaintiffs is barred?
(13) Whether the notification dated 26th March, 1949 published in Jodhpur Raj Patra dated April 2, 1949, not admissible in evidence as not having been registered and being without authority?
(14) What shall be relief?
The burden of issues 1 and 2 which are issues of fact was placed on the plaintiffs. The burden of proving issues 3 to 5, 7 and 12 was placed on the defendants. Issues 10, 11 and 13 are legal issues.
5. Issues 2, 3, 4 and 5 are overlapping.
6. The plaintiffs led evidence on issues Nos. 1 and 2. Now issue No. 3 is a comprehensive issue which covers issues Nos. 3, 4 and 5 also. The burden of proving issues 3, 4 and 5 was wrongly placed on the defendants by the trial Court. The plaintiffs having come forward with the case in that plaint that the rule of primogeniture did not apply, that the family of Guman Singh was a joint Hindu family and that there was no partition or family arrangement, the burden lay on them to prove these allegations.
7. On behalf of the plaintiffs 4 witnesses were examined on issues Nos. 1 and 2. Raghunath Singh plaintiff, P. W. 1 stated in his statement that succession to the property of Guman Singh was not governed by the rule of primogeniture, that the family was a joint Hindu family and that there was no partition or family arrangement. The remaining 4 witnesses also stated that there was no partition or family arrangement. Ratan Singh P. W. 5 even stated that Guman Singh used to say in his life-time that he will divide the property into 3 shares for his 3 sons. This part of the evidence of this witness cannot be treated as evidence under issue No. 1. What could be proved under issue No. 1 was that the admissions of the plaintiff in writing were obtained by fraud. Whether or not those admissions were correct was not the subject-matter of issue No. 1.
8. Issues were framed in the suit on 24-9-1962. At that time this High Court was not entertaining any revision against any interlocutory order, because of a ruling of a Bench of 5 Judges in Purohit Swaroop Narain's case, ILR (1953) 3 Raj 483 = (AIR 1953 Raj 1373 (FB)). The defendants therefore had no remedy to get the issues rectified.
9. After concluding their evidence on issues Nos. 1 and 2 the plaintiffs stated that they were reserving a right to produce evidence in rebuttal on issues the burden of proof of which lay on the defendants.
10. After the defendants had led their evidence the plaintiffs applied for permission to produce evidence in rebuttal or the evidence led by the defendants. This prayer was opposed by the defendants. The learned Additional District Judge overruled the objection saying that the evidence of the witnesses of the plaintiffs was given tinder issue No. 1 only. As I have shown above this is erroneous.
11. On behalf of the defendants it is contended that the correct interpretation of Order 18, Rule 3 is that before examining any witness the party leading evidence should expressly reserve his right to produce evidence on the issues the burden of proof of which lies on the opposite party. Reliance was placed on the decision in Motibhai v. Umedchand, AIR 1956 Sau 52. The question which arose in that case for decision was whether before the date on which the party leading evidence starts examining his witnesses he is required under Order 18, Rule 3 to state that he would reserve his evidence on the other issues.
However in that case the decision in Nanhey Raja v. Kedar Nath, AIR 1953 Vin Pra 34 was also considered, in which it was held as follows:--
'The law does not prescribe a stage at which a party should apprise the Court of its exercising the option under Order 18, Rule 3. But it is only reasonable that this should be done, if possible, before it begins, and in any case before the other party begins its evidence, so that it might clearly note that the first party has not really finished.'
12. And the opinion was expressed that Order 18, Rule 3 lays down that the party having a right to begin should exercise the option before he starts examining his witnesses. With all respect 1 am unable to subscribe to the view taken in the Saurashtra case. Order 18, Rule 3 runs as follows:--
'Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning, but the party beginning will then be entitled to reply generally on the whole case.'
13. It does not prescribe the stage at which the party leading evidence should apprise the Court of its exercising the option under Order 18, Rule 3. Although the Code contemplates that the party leading evidence should state his case, this is not done in actual practice. I am of the opinion that the provision under the above rule is sufficiently complied with if the party in question states before the other party begins its evidence that it is reserving its right to adduce evidence in rebuttal on the other issues. This it can do only if it has actually not led any evidence on those issues.
14. In the present case the issues were not correctly framed. The burden of proof of issue No. 2, which is a comprehensive issue, was placed on the plaintiffs and rightly so as pointed out by me above. But misunderstanding was caused by the framing of issues Nos. 3, 4 and 5 the burden of proof of which was placed on the defendants. If the issues had been correctly framed then the burden of proving these issues should have been placed on the plaintiffs. If they succeed in proving that the parties were members of a joint Hindu family, that the estate was not an impartible one and that there was no family arrangement during the life-time of Guman Singh then it would follow as a result of the decision of these issues that the share of the plaintiff Raghunath Singh was one-fourth.
15. On account of the incorrect framing of the issues the plaintiffs might have been misled in not producing all the evidence on the matters covered by issues Nos. 3, 4 and 5 initially. I accordingly allow them to produce further evidence on these issues. They are entitled to produce rebuttal evidence on issue No. 7. Thereafter the defendants will be entitled to produce rebuttal evidence on issues Nos. 3, 4 and 5 only.
16. The revision application is decided as indicated above.
17. In the circumstances of the case, I leave the parties to bear their own costs of this revision application.