Bombay High Court
Shri. Mahadev Nathoba Choudhari vs Shri. Baliram Hari Mhatre on 28 November, 2022
Bench: Nitin W. Sambre
(1)-SA-509-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.509 OF 2022
WITH
Digitally
signed by
INTERIM APPLICATION NO.10402 OF 2022
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
AND
2022.11.28
09:45:24
+0530 SECOND APPEAL NO.508 OF 2022
Shri. Mahadev Nathoba Choudhari ..Appellant
Versus
Shri. Baliram Hari Mhatre ..Respondent
Mr. Balasaheb Deshmukh, for the Appellant in both Appeals.
Ms. Anjali Helekar i/by Rajendra Parwani, for the Respondent.
CORAM : NITIN W. SAMBRE, J.
DATE : 24th NOVEMBER, 2022
P.C.
1. When the matter is called out, counsel for the appellant
submits that efforts to settle the matter moved by the respective
counsels for the parties are not fruitful and as such, this Court may
pass appropriate order in the matter. This Court has already
dictated the facts and the rival submissions on 18 th November, 2022.
As such, this Court proceeds to record the reasons and the outcome
of the appeal.
2. Mr. Balasaheb Deshmukh, counsel appearing for the
appellant has claimed that DW-1, the witness of the defendant, a
lawyer by profession has failed to produce Power of Attorney though
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(1)-SA-509-22.doc.
he has claimed so in the examination-in-chief. As such, according to
him, DW-1 was not a competent witness. It is also claimed by him
that DW-1, a lawyer has appeared for the defendant and as such
ought not to have been examined himself in the matter.
3. The aforesaid contentions which are covered in grounds
(a) to (d), in my opinion, are liable to be rejected for the following
reasons. That the DW-1 became a lawyer in 2013 and has placed his
appearance for defendant in a suit which was initiated in 2014
along with his senior lawyer. Apart from this fact the said witness
has not signed any pleadings or actively participated in the conduct
of the case, at least same is not established by the appellant by
placing on record supporting material to that effect.
4. The relationship of DW-1 with that of defendant as son
and father is not disputed by the appellant. It is also not in dispute
that the DW-1 is a lawyer by profession. The fact remains that DW-1
has not produced Power of Attorney on record though he has stated
so in the examination-in-chief. However, DW-1 has continued to
examine himself as a witness of defendant being his biological son.
There is no embargo on the right of a lawyer in his independent
capacity as son of defendant No.1 to examine himself as witness. At
least such case is not contested by the appellant during the course of
hearing of the suit or at the time of recording of evidence. Even the
appellant has failed to establish the mode and manner in which the
witness of the defendant has spoiled or damaged the case in the
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(1)-SA-509-22.doc.
capacity of lawyer or conflict of interest between defendant and his
son. As such, the aforesaid grounds, in my opinion, do not warrant
any consideration in the form of substantial questions of law and as
such are liable to be rejected.
5. The fact remains that the appellant has accepted the
dismissal of his suit, however, by way of aforesaid grounds has only
assailed the judgment impugned to the extent of directing removal
of encroachment by the appellant/original plaintiff.
6. The fact remains that the appellant/plaintiff has claimed
his right over the property by virtue of adverse possession. It was
appellant's duty to establish the same which he has failed to and his
ownership by virtue of perfecting his title by way of adverse
possession is not proved by him. Once the appellant has failed to
prove his ownership over the suit property by way of adverse
possession, he has not taken any alternate plea of being in
possession by virtue of any lawful mode. In that view of the matter,
both the Courts below have proceeded to appreciate the case and
recorded findings that the appellant has encroached on the land of
the respondent and accordingly passed the decree of removal of
encroachment which appears to be in tune with pleadings and
findings recorded.
7. Apart from above, after the issues were re-casted, it was
for the appellant to claim before the Court below for permission to
BGP. 3 of 4
(1)-SA-509-22.doc.
lead additional evidence, if any, which he has failed and rather tried
to blame the Court below for not inviting to lead evidence.
8. In the aforesaid background, I hardly see any reason to
infer that the appeal involves any substantial question of law which
warrants consideration.
9. The present appeal which is against concurrent findings
is devoid of merit and same stands dismissed.
10. In view of dismissal of appeal, interim application also
stands disposed.
[NITIN W. SAMBRE, J.]
BGP. 4 of 4
