Vilas Fransis Shirsath vs Meri Francis Shirsath And Ors
2021 Latest Caselaw 10923 Bom

                                                                      sa-312-2021.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           SECOND APPEAL NO.312 OF 2021

                          VILAS S/O FRANSIS SHIRSATH
                                    VERSUS
                     SMT. MERI FRANCIS SHIRSATH AND ORS.

                                         ...
                      Mr. P. S. Dighe, Advocate for appellant.
               Mr. V. S. Bedre, Advocate for respondent Nos.3 to 5.
                                         ...

                                   CORAM        : SMT. VIBHA KANKANWADI, J.

                                   DATE         : 12.08.2021

ORDER :-


.        Present appeal has been filed by the original defendant

challenging the judgment and decree passed in Regular Civil Appeal

No.170 of 2017 by learned Adhoc District Judge-1, Ahmednagar thereby

the appeal filed by present respondents/original plaintiffs came to be

allowed on 16.07.2021. Present respondents original plaintiffs had filed

Regular Civil Suit No.358 of 2012 before the learned Joint Civil Judge

Junior Division, Rahuri for declaration and perpetual injunction. The

said suit came to be dismissed on 03.05.2017 and the original plaintiffs

had filed the said appeal, which then came to be allowed by the first

Appellate Court and, therefore, the original defendant has filed the

present second appeal.

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2. Heard learned Advocate Mr. P. S. Dighe for the appellant and

learned Advocate Mr. V. S. Bedre for respondent Nos.3 to 5.

3. It has been vehemently submitted on behalf of the appellant that

the learned Trial Judge had considered all the documentary as well as

oral evidence and held that the plaintiffs have failed to prove that they

are the only legal heirs left by one deceased Fransis Bhaga Shirsath and

the defendant is having no concern over the suit property. It was also

held that the plaintiffs have failed to prove that they are possessing the

suit property and their possession has been threatened by the defendant.

However, the learned first Appellate Court by reappreciating the same

evidence has come to contrary conclusion. It has been held that

plaintiffs have proved that they are the only legal heirs left by deceased

Fransis. Plaintiffs are entitled to the relief of declaration as well as

injunction thereby the status of the defendant being the son of deceased

Fransis has been negatived and, therefore, the case requires

consideration by formulating substantial questions of law.

4. Per contra, the learned Advocate appearing for respondent Nos.3

to 5 supported the reasons given by learned first Appellate Court and

submitted that the evidence was not properly appreciated by the learned

Trial Judge and, therefore, plaintiffs were required to file the first

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appeal. The evidence led by the defendant to prove that he is the son of

late Fransis and one Kaushalyabai cannot be considered, as the sister of

Kaushalyabai, who has been examined by the defendant, is unbelievable.

Though the birth certificate has been produced, it is also not reliable

because Fransis Bhaga Shirsath was Christian by community, however, in

the birth certificate it has been stated that Fransis Bhaga Shirsath is

Harijan by community and DW-5 Lilabai, who was the sister of

Kaushalyabai, has stated that her parents were Hindu by community.

The marriage between Fransis and Kaushalyabai has not been properly

established. All the documents which were produced by the defendant

and the oral evidence that was led by him has been duly considered by

the first Appellate Court and that evidence being fact cannot be raised as

substantial questions of law and, therefore, the case is not giving rise to

substantial questions of law. It cannot be also stated that the

appreciation of evidence by first Appellate Court is perverse.

5. At the outset, it is to be noted that plaintiffs contended that they

are the legal heirs of deceased Fransis Bhaga Shirsath, who was

Christian by community. He expired in the year 1982. Plaintiff No.1 has

stated that she got married prior to 1960 as per Christian rites. It is also

stated that the suit property was awarded as per Mahar Vatan Inaam

Class 6-B to their ancestors, thereby they have also stated that the suit

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property was ancestral property and Hindu joint family property of their

father. But then in view of Fransis getting married to plaintiff No.1 as

per Christian rites, the property has devolved on them after his demise.

It is contended that plaintiffs had moved application for getting their

name mutated to the suit land, however, it was objected by the

defendant. It is also contended that deceased Fransis used to reside at

Nashik and served in Ozar Mig Aeroplane Company for about 20 years.

Defendant has no concern with the deceased as well as plaintiffs.

According to plaintiffs, one Kamal Padmakar Shirsath posed defendant

as son of deceased Fransis in order to grab the suit property and got the

Mutation Entry No.549 sanctioned in his favour by taking disadvantage

of illiteracy of plaintiff No.1. Mother of the defendant was never

married to Fransis and when the obstruction was raised by the

defendant they filed suit. Defendant had put his written statement

denying the claim of plaintiffs and establishing his own status. He has

stated that deceased Fransis and his mother Kaushalyabai were married

and they used to reside at Nashik. Fransis used to get the suit land

cultivated through others. He is the only legal heir left by Fransis. It

has been further submitted that the defendant has produced his birth

certificate, electoral roll/voters list of the defendant and his family

members. All throughout his life, the defendant is known as son of

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Fransis Shirsath. He is enjoying the property since last more than 30

years. Fransis expired in the year 1982, however, the suit has been field

in the year 2012. This shows that plaintiffs have no concern with the

property and at any earlier point of time, they were never in possession

of the same. The defendant has also examined mother of deceased

Kaushalyabai to show that Kaushalyabai was married to Fransis.

Kaushalyabai expired when defendant was 2 to 3 years old and

thereafter, he has been brought up by his maternal uncle Bhagwan

Gajabapu Gaikwad. Thereafter, after the death of Fransis, the suit

property has devolved on the defendant as his son. Accordingly, the

Mutation Entry No.549 has been sanctioned. It was never challenged by

the plaintiffs and, therefore, the defendant is possessing the suit land

since last 30 years.

6. Though the learned Trial Judge has dismissed the suit, yet, the

first Appellate Court has appreciated the evidence once again which was

definitely within its powers to see whether the appreciation of evidence

by the learned Trial Judge is perverse. It was found by the learned first

Appellate Court that the plaintiffs have proved that deceased Fransis got

married to plaintiff No.1. They have produced evidence in respect of

death of Fransis i.e. original School Leaving Certificate of Fransis, then

School leaving certificate of the children born to plaintiff No.1 and

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Fransis. It appears that there is no dispute as regards the fact that

Fransis was serving in the Ozar Mid Aeroplane Company. Though

School Leaving certificate has been believed by both the Courts, taking

into consideration the documentary as well as oral evidence of the

plaintiffs, the learned first Appellate Court has come to the conclusion

that they are legal heirs of deceased Fransis.

7. Defendant had not only denied the claim of plaintiffs, but had put

specific defence that except him, there is no other legal heir left by

Fransis. He has produced his birth certificate on record at Exhibit-75

and it has been found that the said extract does not show the name of

defendant. Definitely, in the earlier times, there was no such column or

no insistence that the name should be written. Only the gender was

required to be written and the names of the parent were supposed to be

included. In Exhibit-75, it has been found by the first Appellate Court

that the name of the father/grandfather has been written as Fransis

Bhaga Shirsath and the religion has been shown as Harijan. In the

evidence of defendant, his birth date is stated to be 15.04.1956, but in

extract Exhibit-75, the year 1956 is hand written at the top of the extract

and the other anomalies have been noted by the first Appellate Court,

which are not considered by the Trial Court. In the cross examination,

the defendant has admitted that Fransis was Christian by religion, but

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his own school record as well as the other documents do not show that

Fransis has been shown as Christian. Even the school leaving certificate

of Fransis has been produced on record by the plaintiffs at Exhibit-45

and also produced by defendant as Exhibit-57, which shows his religion

as Christian. At the cost of repetition, it can be said that in the school

leaving certificate of the defendant, his religion has been mentioned as

Harijan. The testimony of DW-5 Lilabai, who claimed to be the sister of

Kaushalyabai - mother of the defendant, has been scrutinized by the

first Appellate Court and in categorical terms, she has stated that her

parents were not Bouddha by community. The question then arises,

under which provisions of law, the alleged marriage between Fransis and

Kaushalyabai would have taken place. Admittedly, the said alleged

marriage is not registered anywhere. If it would have taken place as per

the Christian religion, then it would have been in Church and the

Church record could have revealed the fact of marriage. No evidence in

such form has been produced by the defendant. Further, the other

evidence on record especially the oral evidence adduced by the

defendant has been mutually scrutinized by the first Appellate Court for

coming to the conclusion that the defendant has not proved his case.

8. The scope of the second appeal is limited in a sense only

substantial questions of law are required to be considered and in that

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process no doubt this Court can consider the evidence if it is shown that

the appreciation of evidence by the Lower Court/Lower Courts is

perverse. Reliance can be placed on the decision of the Hon'ble

Supreme Court in Ramathal Vs. Maruthathal and Ors., [(2018 18 SCC

303], wherein the issue considered was as to whether the High Court

was wrong in interfering with the question of fact in the Second Appeal.

The Hon'ble Supreme Court indicated in the said case that the restraint

against interference is not an absolute rule but when there is perversity

in findings of the Court which are not based on any material or when

appreciation of evidence suffers from material irregularity, the High

Court would be entitled to interfere on a question of fact as well.

Further, in P. Velayudhan and Ors. Vs. KurunGot Imbichia Moidu's son

Ayammad and Ors., [(1990) Supp. SCC 9] and Tapas Kumar Samanta

Vs. Sarbani Sen and Anr. [(2015) 12 SCC 523], it has been held that, in

a Second Appeal the High Court would not be justified in interfering

with the finding of fact made by the first Appellate Court since such

finding rendered would be based on evidence. On this aspect there can

be no doubt that the same is the settled position of law, however, as

aforesaid in Ramathal's case (Supra), the law has been interpreted that

this Court can consider the fats, if it is shown that the Courts below have

shown perversity in arriving at the finding by Lower Courts. Here, in

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this case, there is absolutely no perversity rather the perversity which

was committed by the Trial Court has been corrected by using its legal

powers by the first Appellate Court under Section 96 of the Code of Civil

Procedure and, therefore, no substantial questions of law are arising in

this case, as contemplated under Section 100 of the Code of Civil

Procedure. Hence, second appeal stands dismissed.

[SMT. VIBHA KANKANWADI, J.]

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