Bombay High Court
Appellants : 1. Smt Kunda Wd/O Mahadeo ... vs Respondent : Haribhau Son Of Husan ... on 28 April, 2014
Author: A. P. Bhangale
Bench: A. P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 437 of 2008
Appellants : 1. Smt Kunda wd/o Mahadeo Supare, aged about
45 years, Cultivator, resident of Mz. Chanoda,
Tahsil Umred, District Nagpur
2. Nitin son of Mahadeo Supare, aged 22 years
3. Sachin son of Mahadeo Supare, aged 20 years
4. Jitendra son of Mahadeo Supare, aged 19 years
5. Varsha d/o Mahadeo Supare, aged about 23 years
All residents of Mz Chanoda, Tahsil Umred,
District Nagpur
versus
Respondent : Haribhau son of Husan Supare, aged about 35
years, Cultivator, resident of Chanoda, Tahsil
Umred, District Nagpur
Mr S. L. Kotwal, Advocate for appellants
None appears for respondent
Coram : A. P. Bhangale, J
Dated : 3rd March 2014
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Judgment
1. This appeal is filed by the appellant (original plaintiff) against
the judgment and order dated 09.04.2008 passed by Ad-hoc District Judge-
1, Nagpur in Regular Civil Appeal No. 389 of 2004 which was dismissed.
The said appeal arose from the judgment and order dated 12.12.2000
passed by the Civil Judge, J. D. Nagpur District Nagpur in Regular Civil Suit
No. 109 of 1995. The suit was decreed along with mesne profits and costs.
2. Narayan Supare had three sons Hussia, Bisan and Mahadev.
The family owned ancestral property at village Ibrahimpur, Chanoda and
Hiwara with House property at Chanoda. Field at Chanoda was acquired
for construction of Dam and compensation was paid. The dispute is in
respect of the agricultural land Gat no. 103 situated at village Nandra.
According to the appellants, the suit property was purchased on
14.05.1982 under the registered sale deed in the name of Mahadev Supare
(predecessor-in-title on behalf of the plaintiffs) from Kavadu Tanba Bhat.
The defendant was aged about 9 years at that time. The suit property was
cultivated by the respondents. The respondents failed to give share of the
respondents after death of Mahadev Supare in the year 1992. The
appellants had filed the suit for the relief of partition and mesne profits.
3. The prayer in the suit was for partition, separate possession
and mesne profits. Trial Court's findings were that the suit property is
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proved as joint family property. The suit was decreed.
4. First appellate court reversed the decreed and allowed the
appeal.
5. This appeal was admitted on the substantial question of law as
to whether the first appellate court is right in treating the suit property as
joint Hindu family property which could have been subjected to partition in
the year 1985.
6. On behalf of the appellate, it is submitted that the trial court
had rightly exercised the discretion to pass the decree. Defendant did not
enter in the witness box to depose in support of the defence in the Written
Statement. The onus was upon the defendant which he did not discharge.
Therefore, adverse inference for not leading the evidence ought to have
been drawn against the defendant.
7. Learned counsel for appellant relied upon the decision of the
Hon'ble Supreme Court in Vidyadhar v. Manikrao and anr reported in AIR
1999 SC 1441. The Apex Court has held in the above case that when a
party does not appear in the witness box and does not offer himself to be
cross-examined by the other side, a presumption can be drawn that the
case set up by him is false. Presumption under Section 114 of the Evidence
Act is that if a party does not enter into the witness box, an adverse
presumption has to be drawn against that party. Defendant had abstained
from the witness box and had not made any statement on oath in support
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of his pleading set out in the Written Statement. An adverse inference has,
therefore, to be drawn against him. The decree passed by the trial court
was based upon this principle and the first appellate court was not justified
to interfere with it.
8. On behalf of the respondent, none appeared though served.
From the impugned judgment it appears that the learned first appellate
judge appreciated the admissions given by the appellant no. 1 Kunda in her
oral evidence that the joint family possessed the property at various places
Ibrahimpur, Nandura, Chanoda. The property at Chanoda was acquired for
canal and compensation amount was received. Her husband Mahadev had
received the share in the compensation amount for the acquired land. The
property was acquired by using the funds of the joint Hindu family.
Findings were based on the evidence recorded. The plaintiff would stand
or fall on own legs. No fault can be found with the defendant if he decides
for not entering in the witness box particularly when the defendant had by
his Written Statement made the defence clear to the plaintiffs and also
cross examined the plaintiff Kunda eliciting her admissions in her cross-
examination which were sufficient by themselves to decide the fate of the
suit claim. Normally speaking, there is merit in contention that the suit
should succeed when the defendant had not cared to enter the witness box
to depose the truth. The party who does not care to enter witness box
runs a great risk of presumption being drawn against him as referred to in
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Vidyadhar's case (supra), a party on whom burden of proving certain issue
lies runs the risk by withholding itself from entering into the witness-box.
However, presumption under Section 114 of the Indian Evidence Act, 1872
is rebuttable. The section spells discretion "may presume" discretionary for
the Court to act on statutory presumptions. Normal rule is that, when a
party abstains himself from giving substantial evidence, adverse inference
can be drawn against it. But in the present case, though as argued in
support of the appeal, the defendant did not choose to enter the witness
box in order to prove the defence contention in Written statement, the
defendant was not required to step in the witness-box to defeat the suit
claim. Admissions were already elicited by defence by means of cross-
examination of the plaintiff's witness Kunda. Her admissions given in the
course of her cross-examination were vitally supportive of the case put up
by way of defence in Written Statement. The normal rule is that the
plaintiff has to stand or fall on his own legs and he cannot always be
entitled to take the advantage of the fact that the defendant in his wisdom
chose not ot lead oral evidence from witness-box in the case. The
defendant may be guided by the good discretion to withhold himself if the
plaintiffs have failed to discharge the onus of proof that lay upon them in
the battle of litigation. Thus, his testimony was felt necessary by the
defendant for decision of the case according to law. Taking into
consideration all the facts and circumstances of the case and the evidence
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led in the case, I am of the view that the question of law and facts
considered by the 1st appellate court were rightly answered against the
plaintiffs. The findings recorded by the 1st appellate court were based on
the evidence led on record as final court of facts. No interference would be
justified in the second appeal by this Court to brush aside the findings
recorded by learned 1st appellate Judge. It is not rule of thumb in all cases
that the defendant must enter in the witness box and give his testimony. In
a given case like the one in hand, the testimony of the defendant may not
be necessary when the evidence led by the plaintiff by itself is sufficient to
nonsuit the plaintiffs. The expression "may presume" indicates judicial
discretion to be used by a presiding officer of the trial Court in given facts
and circumstances of the case.
9. In the result, there is no merit in this appeal, which is
accordingly dismissed, but in the facts and circumstances of the case, there
will be no order as to costs.
ORDER
The appeal is dismissed. Impugned judgment and order is confirmed. No order as to costs.
A. P. BHANGALE, J joshi ::: Downloaded on - 05/05/2014 23:44:38 :::