RAM @ RAMDAS SHESHRAO NEHARKAR Vs. SHESHRAO BABURAO NEHARKAR

JUDGEMENT

(1.) Aggrieved against the judgment(Judgment dtd. 24/11/2009 passed in Second Appeal No. 14 of 2009) passed by the High Court(High Court of Bombay, Bench at Aurangabad) the plaintiff is in appeal before this Court. The appellant/ plaintiff had filed the suit(Regular Civil Suit No. 224 of 1994) for partition and separate possession of the suit property. It was claimed that his mother Padminibai 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.

(2.) The Trial Court(Court of Joint Civil Judge (J.D) at Kaij, District Beed) decreed the suit and directed for grant of 1/5th 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 wedlock. The First Appellate Court(Court of Ad-hoc District Judge -3, at Ambajogai, District Beed) upheld the judgment and decree of the Trial Court vide judgment dtd. 13/8/2008(Regular Civil Appeal No. 126 of 1998). 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 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.