: 1 : sa.321.2011 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.321 OF 2011 Pratap Murlidhar Mogal & anr. .. Appellants V/s. Jiyendra Rangnath Mogal & Ors. .. Respondents Mr.R.M. Hardas I/b P.N. Joshi for the Appellants None for the Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 9, 2011 P.C.: 1. The appellants were the plaintiffs before the trial Court. Their predecessor Murlidhar had filed a suit against the Defendant who was the brother of Murlidhar for possession of the suit property. Both the trial Court as well as the appellate Court have held that the plaintiffs were unable to prove their title to the suit land. They have held the plaintiffs’ case that Murlidhar had put the defendant in possession of the suit land in the year 1973 for a period of five years under an agreement and in exchange for being permitted by the defendant to draw water from the well in gat No.329 was not established. The Courts have held that the defendant had proved that the agreement relied on by the plaintiffs was null and void and that he was in possession of the suit : 2 : sa.321.2011 land as its owner. 2. Mr.Hardas, appearing for the appellants, has submitted that both the courts below have committed an error in accepting and relying on the evidence of defendant who had died during the pendency of the trial. According to him after the evidence of defendant was recorded, he was not available for cross-examination on account of his death and therefore his evidence ought not to have been discarded by the Courts. I have perused the impugned orders and in my view, this submission of Mr.Hardas cannot be accepted. The appellate Court has observed that although the defendant was not available for cross-examination, his oral evidence was not important as the documentary evidence was sufficient to establish that the defendant was in possession of the suit land as its owner. 3. In these circumstances, in view of the concurrent finding of facts recorded by both the Courts below, I see no reason to interfere with the same. No substantial question of law arises for determination in the Second Appeal. 4. Second Appeal is therefore dismissed. (SMT.NISHITA MHATRE, J.)