Bombay High Court
Smt. Sangeeta Bhagwan Kamble vs Sakharam Maruti Kamble And Others on 5 September, 2022
Bench: Avinash G. Gharote
(1) 23.sa.211.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.211 OF 2022
Smt. Sangeeta Bhagwan Kamble
Vs.
Sakharam Maruti Kamble (Dead) 1-i) Smt. Panchasheela Devanand Borkar and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A. S. Moon, Advocate for appellant.
CORAM : AVINASH G. GHAROTE, J.
DATE : 05/09/2022
1. Heard Mr. Moon, learned counsel for the
appellant who submits, that the impugned judgment
dated 2.9.2013 passed by the learned trial Court (pg. 28)
and the judgment dated 15.7.2021 passed by the learned
Appellate Court are incorrect and are based upon an
incorrect burden of proof cast upon the plaintiff, and
therefore a substantial question of law arises.
2. The above contention has to be considered
in light of the suit which was filed. Regular Civil Suit
No.128 of 2011 was a suit filed by the wife (appellant)
claiming a declaration under Section 108 of the Evidence
Act that her husband Bhagwan Sakharam Kamble had
left the matrimonial house in 2003 and was not heard of
for more than seven years, and therefore sought a decree
of declaration to pronounce him as dead. In the suit, the
appellant examined herself at Exh. 17-C (pg.33 of the
(2) 23.sa.211.2022
paper book provided by the learned counsel for the
appellant) and stated that her husband had developed
illicit relations with one Shantabai Rathod with whom he
had eloped in the year 2003. Since he had not returned
back, on 16.11.2003 a complaint was lodged with Police
Station Deoli and in spite of search the husband of the
appellant was not found. It is further stated that since
the respondent nos. 1 and 2 had started harassing her
the appellant left the matrimonial home and since
12.3.2007 was residing with her parents at Yavatmal.
The statutory period under Section 108 of the Evidence
Act having expired the suit was filed.
3. PW-2 Narayan Sakharamji Kamble brother
of Bhagwan Kamble was also examined who deposed
that he had not seen Bhagwan Kamble, since 2003. On
behalf of the respondent DW-2 Vitthal Mahadev Gadge
was examined who deposed that approximately three
months prior to his evidence on Tuesday in the weekly
Bazar at Kalamb he had suddenly met Bhagwan Kamble
who after conversing with him for about 5 to 10 minutes
had went away. At that time, he was not aware of the
proceedings being filed and approximately 15 days
before his evidence when he had come to Deoli village
for meeting one Devibai sister of Bhagwan Kamble he
had informed her about meeting Bhagwan Kamble. In
his cross-examination, nothing has been brought
out except that he was deposing at the behest of Devibai.
(3) 23.sa.211.2022
Since the DW-2 has categorically stated about meeting
Bhagwan Kamble, in the weekly Bazar at Kalamb
approximately three months prior to his deposition, the
requirement of Section 108 of the Evidence Act insofar
as it casts a burden upon the respondent of proving that
Bhagwan Kambe was alive, stands satisfied, in view of
which, I do not see that there is any substantial question
of law involved in the present second appeal.
4. The Second Appeal is therefore dismissed.
No costs.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:07.09.2022
12:46
