( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ SECOND APPEAL NO.98 OF 2009 SECOND APPEAL NO.98 OF 2009 SECOND APPEAL NO.98 OF 2009 IN IN IN CIVIL APPEAL NO.108 OF 2004 CIVIL APPEAL NO.108 OF 2004 CIVIL APPEAL NO.108 OF 2004 IN IN IN REGULAR CIVIL SUIT NO.72 OF 2000 REGULAR CIVIL SUIT NO.72 OF 2000 REGULAR CIVIL SUIT NO.72 OF 2000 Pandurang Govind Kadam and Ors. ..Appellants V/s. Prabhakar Sitaram Kadam and Ors. ..Respondents ...... Mr. Amol B. Desai for the appellant Mr. C.G. Gavankar i/by Arfan Sait for respondent No.1 ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 8th April, 2009 DATED : 8th April, 2009 DATED : 8th April, 2009 P.C.: P.C.: P.C.: 1. The appellants herein instituted suit in the ( 2 ) Court of learned Joint Civil Judge, Junior Division, Ratnagiri and that suit was decreed in favour of the appellants by judgment and decree dated 8th September, 2004. The appeal came to be preferred against this judgment and decree by some of the respondents and that is how the Appeal No.108 of 2004 came to be decided by the learned District Judge-1, District Ratnagiri by judgment and decree dated 6th October, 2008. The learned District Judge-1 allowed the appeal and dismissed the suit against which the second appeal is filed. 2. After having heard learned Counsel on both the sides, it is clear that the learned Appellate Judge has arrived at conclusion in paragraph 18 that the appellants could not produce before the Court single document to show that the property namely the agricultural lands or houses were recorded in the name of Govind that is predecessors in title of the appeal or Govind and Sitaram. The learned Appellate Judge came to the conclusion that those points were decided by the learned Trial Judge in a wrong manner. 3. The learned Counsel in the appeal contended that no evidence is placed before this Court by any of the respondents. In so far as this aspect is concerned, it is required to be mentioned that if the ( 3 ) respondents were advised as not to lead evidence on the basis of record merely because they have not stepped into the witness box, cannot be considered against them. It was left to the descrition of the respondents. The respondents could have been blamed in not entering into witness box provided the evidence of the appellants was of such a nature that burden would have shifted on them. Before this Court, appellants could not show that the property in regard to which partition was sought was the joint family property. If this is the position, surely the findings given by learned District Judge cannot be faulted. 4. Judgment in the case of U.R. Virupakshaiah U.R. Virupakshaiah U.R. Virupakshaiah V/s. Sarvamma and Anr. reported in the case of 2009 V/s. Sarvamma and Anr. reported in the case of 2009 V/s. Sarvamma and Anr. reported in the case of 2009 AIR SCW 968 AIR SCW 968 AIR SCW 968 was cited to contend that if the respondents have not examined any witness adverse inference be drawn against the respondents. The principle referred to by the learned Counsel for the appellant cannot be disputed. However, it cannot be applied to the facts of this case. The appellants have not discharged the burden cast on them and hence the burden did not shift. If this is the position, respondent cannot blame for not stepping into the witness box. ( 4 ) 5. Judgment in the case of Vidhyadhar V/s. Vidhyadhar V/s. Vidhyadhar V/s. Manikrao and Anr. reported in 1999 (3) SCC 573 Manikrao and Anr. reported in 1999 (3) SCC 573 Manikrao and Anr. reported in 1999 (3) SCC 573 was cited to contend that it is a mistake to rely upon inadmissible evidence. In the present case the appellants could not show as to which evidence is inadmissible and inadmissible evidence has been accepted by any of the Courts below. 6. The learned District Judge has considered the matter from all angles and has given good reasons at paragraph 30 to show that the learned Trial Judge was wrong in passing the order. No interference is required in the entire matter. Hence, appeal is to be dismissed at the stage of admission. Hence, the following order:- ORDER ORDER ORDER . The appeal is dismissed at the stage of admission with no order as to costs. . Civil Application No.425 of 2009 is dismissed in view of the dismissal of the appeal with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)