Full Judgment Text
2024 INSC 498
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5038 OF 2012
RAM @ RAMDAS SHESHRAO
NEHARKAR … Appellant (s)
VERSUS
SHESHRAO BABURAO NEHARKAR
AND OTHERS … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
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1. Aggrieved against the judgment passed by the High
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Court , the plaintiff is in appeal before this Court. The appellant/
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plaintiff had filed the suit for partition and separate possession
of the suit property. It was claimed that his mother Padminibai
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2024.07.09
18:07:20 IST
Reason:
1 Judgment dated 24.11.2009 passed in Second Appeal No. 14 of 2009
2 High Court of Bombay, Bench at Aurangabad
3 Regular Civil Suit No. 224 of 1994
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had married with the respondent no. 1/defendant no. 1, and he
was born from that wedlock. At the time of filing of the suit, the
appellant was 35 years of age. Along with his alleged father, his
wife and two sons were also impleaded as defendants.
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2. The Trial Court decreed the suit and directed for
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grant of 1/5 share to the appellant/plaintiff accepting the
contention raised by the appellant/plaintiff that there was
marriage between the respondent no. 1/defendant no. 1 and
Padminibai, and that the appellant/plaintiff was born from that
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wedlock. The First Appellate Court upheld the judgment and
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decree of the Trial Court vide judgment dated 13.08.2008 . In a
challenge made by the respondents/defendants, the High Court
reversed the judgment and decree of the Trial Court and the
First Appellate Court and dismissed the suit filed by the
appellant/plaintiff.
3. The contention raised by learned counsel for the
appellant/ plaintiff was that the High Court should not have
entered into the arena of re-appreciation of evidence led by the
parties while hearing the second appeal. The Trial Court as well
4 Court of Joint Civil Judge (J.D) at Kaij, District Beed
5 Court of Ad-hoc District Judge -3, at Ambajogai, District Beed
6 Regular Civil Appeal No. 126 of 1998
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as the First Appellate Court had concurrently found that the
appellant/plaintiff had been able to establish his case about the
marriage of respondent no. 1/defendant no. 1 with Padminibai
and that the appellant/plaintiff was born from that wedlock. The
findings by the High Court deserve to be set aside.
4. After hearing learned counsel for the
appellant/plaintiff, in our opinion, no case is made out for
interference in the present appeal. From the perusal of the
judgment of the High Court, it is evident that the relevant facts
to establish the factum of marriage of mother of
appellant/plaintiff with respondent no. 1/defendant no. 1 were
not considered by the Trial Court as well as the First Appellate
Court. There were large scale discrepancies in the evidence led.
The marriage was sought to be established by the
appellant/plaintiff only by leading oral evidence. The material
witness namely Padminibai, the so called mother of the
appellant/plaintiff, who had allegedly married the respondent
no. 1/defendant no. 1, was not produced in support of his case
by the appellant/plaintiff.
5. Further, the suit was filed by the appellant/plaintiff
nearly 16-17 years after he had attained majority. Prior to that
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he never raised any claim against respondent no. 1/defendant
no. 1 if according to him he was his father. The High Court has
also noticed the fact that Padminibai, who is claimed to be the
mother of the appellant/plaintiff had re-married claiming that
the same was solemnized after she was abandoned by
respondent no. 1/defendant no. 1. From the pleadings and oral
evidence it was sought to be established, as if the marriage
was a child’s play. Firstly, the appellant/plaintiff has not been
able to establish that there were any matrimonial relations
between the respondent no. 1/defendant no. 1 and Padminibai.
Secondly, even if there was any marriage, nothing is pleaded as
to whether there was any divorce before she re-married. It has
also come in record that the appellant/plaintiff had been
residing in village Surdi, where Padminibai was living with her
husband Rudrappa .
6. In a suit filed for partition and separate possession
claiming that the appellant/plaintiff was the son of respondent
no. 1/defendant no. 1, born from his marriage with Padminibai,
very heavy burden was on the appellant/plaintiff to prove this
fact, when the factum of marriage was denied by the
respondent no. 1/defendant no. 1, as he was married to
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Sheshbai (respondent no. 4/defendant no. 4). From the
evidence led by the appellant/plaintiff, he had failed to
discharge that burden. The High Court had rightly reversed the
findings recorded by the Trial Court and the First Appellate
Court, being perverse.
7. For the reasons mentioned above, we do not find any
merit in the present appeal. The same is accordingly dismissed,
with no order as to costs.
……………….……………..J.
(C.T. RAVIKUMAR)
……………….……………..J.
(RAJESH BINDAL)
New Delhi
July 9, 2024.
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