Second Appeal No.437 of 2008

28th April, 2014

Petitioner Counsel: Mr S.L. KOTWAL

Cases Cited:
Vidyadhar Vs. Manikrao and anr, AIR 1999 SC 1441 [Para 7,8]

JUDGMENT

JUDGMENT :- 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 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 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 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 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.

Appeal dismissed.