1 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 365 OF 2010 WITH CIVIL APPLICATION NO. 1439 OF 2008 IN SECOND APPEAL NO.365 OF 2010 WITH SECOND APPEAL NO.334 OF 2010 WITH CIVIL APPLICATION NO. 1441 OF 2008 IN SECOND APPEAL NO. 334 OF 2010 WITH SECOND APPEAL NO. 335 OF 2010 WITH CIVIL APPLICATION NO.1397 OF 2008 IN SECOND APPEAL NO.335 OF 2010 Balasaheb Dada Magdum and Ors. ...Appellants/ Applicants (Org.Plaintiffs) Vs. Jaykumar Anna Magdum & Anr. ...Respondents (Org.Defendants) ----- Mr.N.J. Patil for Appellants ----- 2 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) CORAM: V.M. KANADE J. DATED: 28TH JANUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellants. 2. The Appellants are the Original Plaintiffs and they filed three suits against the Defendants alleging that they had encroached upon the property of the Plaintiffs to the extent mentioned in the respective plaint. The Defendants filed their written statement and denied the allegations made by the Plaintiffs. The Plaintiffs examined two witnesses. PW-2 was the Cadastral Surveyor, who was appointed as a commissioner and examined as such. The Trial Court on the basis of the statement of the PW-2, held that the Plaintiffs have proved their case of the encroachment and partly decreed 3 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) the suit. In appeal, however, the Appellate Court did not accept the testimony of the PW-2 and held that the Plaintiffs have not proved their case and dismissed the suit. 3. Shri Patil, the learned counsel appearing on behalf of the Appellants has tendered a draft of substantial question of law which he has formulated, which reads as under: “1) Whether the judgment and decree of the learned appellate court justifiable or legal reversing the judgment and decree passed by the trial court, when particularly an adverse presumption has been drawn by the learned trial court against the defendant, who does not present himself for cross-examination, and refuses to enter the witness box in 4 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) order to refute allegations made against him in the plaint and or to support his pleading in his written statement and particularly when he has not challenged the court commissioner’s report.” He submitted that in the grounds of appeal, the grounds do not formulate the substantial questions of law. He submitted that the Trial Court had drawn an adverse inference against the Defendants since they have not examined any witness. However, the Appellate Court did not consider the said adverse inference which was drawn by the Trial Court. In support of the said submission, he relied on the judgment of the Apex Court in the case of Ishwar Bhai C. Patel Alias Bachu Bhai Patel Vs. Harihar Behera and Anr. [(1999) 3 Supreme Court Cases 457] and submitted that adverse presumption must be drawn against the Defendants, 5 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) who do not present themselves for cross examination and refused to enter the witness box in order to refute the allegations made against them and / or to support the pleadings made in the written statements. 4. It is not possible to accept the submissions made by the learned counsel for the Appellants. Perusal of the order passed by the Trial Court does not disclose that any adverse presumption is drawn by the Trial Court and, therefore, it cannot be said that the Appellate Court had erred in overlooking the said finding of the Trial Court. Apart from that, the First Appellate Court in First Appeal is entitled to re- appreciate the evidence and record its own finding and substitute its own view to the view taken by the Trial Court. Secondly, the Defendants in their discretion may examine themselves as witnesses or decide not to examine themselves or any other person 6 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) as their witness, if they feel that the Plaintiffs have not proved their case. In such cases the question of drawing adverse presumption would not arise. The Supreme Court in a judgment in case of Ishwar Bhai C. Patel (supra) on which the reliance is placed by the learned counsel for the Appellants had observed in the facts of the case that having not presented himself for cross examination, adverse presumption had to be drawn. In the said case, the Respondent No.1 therein had an account in the Central Bank of India and his father Respondent No.2 was authorized to operate the said account. It was also admitted fact that from this account, the amount was advanced to the Appellant by the Respondent No.2 and on the suggestion of the Respondent No.2, issued a cheque to the Appellant which was encashed. The Apex Court, therefore, observed that since this fact had not been controverted 7 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) by the Appellate, who did not enter the witness box to make the statement on oath filed the statement of the Defendant No.2 adverse inference was liable to be drawn. In my view, the ratio of the said judgment will not apply to the facts of the present case. The Defendants had nowhere admitted in any place that they encroached upon the said land and had given any other admission. The question of drawing adverse inference merely because they did not enter the witness box does not arise. The Trial Court, therefore, had not drawn such adverse interference as alleged by the Appellants. Therefore, there is no merits in the submissions made by the learned counsel for the Appellants. The First Appellate Court has given cogent reasons why it was not possible to accept the evidence of PW-2 and, therefore, has held that the Plaintiffs have not established the encroachment. Therefore, no substantial question of law 8 (SA 365 of 2010 with CAS 1439 of 2008 with CAS 1441 of 2008 in SA 334 of 2010 with CAS 1397 of 2008 in SA 225 of 2010) is raised in these appeals. Second Appeals are dismissed. Civil Applications do not survive and are also disposed of. (V.M. KANADE J.)