1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 37 of 2011 Balu Hemla Rathod vs. Vitthal Jiwala Rathod and others. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or directions Court's or Judges order or Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Shri H.R.Dhumale,Advocate for appellant.. CORAM: A.B.CHAUDHARI, J. DATED: 10th March, 2011. Mr.Dhumale, the learned counsel for the appellant, argued that there is a finding recorded by the courts below that the plaintiffs could not prove by concrete evidence that they were forcibly dispossessed by the appellant. Despite this position, according to him, the courts below have held that the possession was wrongfully taken by the appellant and therefore decree was passed. He further argued that the fact that the appellant is in possession for a long time, is enough to protect the possession. He further argued that the evidence that was tendered by the appellant/defendant about allotment of suit land to the appellant/defendant in partition ought to have been preferred or accepted by the courts below rather than that of the plaintiffs. He relied on decisions of the Apex Court in the case of Maria Colaco and Another ..vs.. Alba Flora Herminda D'souza and 2 others, reported in (2008)5 Supreme Court Cases 268 and in the case Krishnan ..vs.. Backiam and another reported in (2007) 12 Supreme Court Cases 190. Having heard the learned counsel for the appellant and having gone through impugned judgment, suffice it to say that the following portion(in para 10) from the appellate Court's judgment clearly gives an idea as to why they preferred to accept the case of the plaintiffs. “10.. Except oral evidence adduced by the defendant, there is nothing to show that the suit land was allotted to the defendant in the partition and it is in his possession since last 20 years to 22 years. The evidence adduced by the plaintiffs is supported by entries in the revenue records and, therefore, the evidence on record from the side of the plaintiffs is more probable than oral evidence of the defendant. The witnesses examined by the defendant are his close relatives and, therefore, they may be interested to support defendant. Had it been a fact that in oral partition, the suit property was allotted to share of defendant, there may be entry to that effect in the revenue record. It is improbable to believe that a person who in possession of the suit property for a period of more than 20 years, would not take care to observe the 3 entry in the revenue record and he would believed the words of a person like Jivala.” From the above, it is clear that the Courts below have in all preponderance of probabilities held that the possession of the title was with the plaintiffs and illegal dispossession thereof by the appellant. These findings are based on evidence. The Courts below have found that the evidence tendered by the plaintiffs was better and liable to be preferred as against the evidence tendered by the defendant. In my opinion, these are purely the questions of facts and merely because any other view could be possible and in view of the fact that the Courts below have acted with the rule of preponderance of probabilities, I do not think it fit to interfere with the findings of fact. The decisions cited above by the learned counsel for the appellant are of no assistance to him. For the above reasons, I decline to interfere with the findings recorded by the Courts below. The Second Appeal is dismissed in limine. JUDGE Andurkar