Bombay High Court
Bapurao Shivaji Suryawanshi Died ... vs Shankar Shivaji Shahu Suryawanshi And ... on 23 July, 2025
2025:BHC-AUG:19506
917-SA-156-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 156 OF 2022 WITH
CIVIL APPLICATION NO. 4122 OF 2022
IN SA/156/2022
Bapurao Shivaji Suryawanshi Died Through Lrs. Kondabai
Paurao Suryawanshi And Ors.
VERSUS
Shankar Shivaji Shahu Suryawanshi And Ors.
***
• Mr. S. R. Bagal, Advocate for the Appellants
• Mr. P. R. Katneshwarkar, Senior Advocate i/by Mr. A.
A. Fulfagar, Advocate for the Respondents
***
CORAM : R. M. JOSHI, J
DATE : JULY 23, 2025
PER COURT :
1. This Appeal under Section 100 of the Code of
Civil Procedure takes exception to the concurrent
findings recorded by the Trial Court and First
Appellate Court in RCS No. 555/2003 and RCA No. 8/2018
respectively.
2. Parties are referred to as 'Plaintiff' and
'Defendant' for the sake of convenience.
3. Plaintiff - Shankar filed suit being RCS No.
555/2003 seeking partition and separate possession of
his 1/3rd share in the suit properties. It is
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specifically contended that suit properties are
ancestral joint family properties of Plaintiff and
Defendants. It is his further case that he was born to
Shahuji @ Shavaji, his father and Sakhubai, his mother
around 48 years ago. It is claimed that Sakhubai died
in the year 1972. It is further claimed that at the
time of death of Shavaji, Plaintiff was about 15 to 16
years of age. It is specifically stated in the plaint
that Plaintiff was given 1/3rd share in the grain
cultivated. The cause of action is spelt out in the
plaint stating that till the death of Satvaji the said
1/3rd share was given to the Plaintiff and when the
Plaintiff has sought partition of the suit properties,
the same was denied.
4. Defendants appeared before the Trial Court and
filed written statement denying the case sought to be
made out by the Plaintiff about he being son of
Shavaji. There is also denial of the fact that Shavaji
married to Sakhubai. The other contentions sought to be
raised by the Plaintiff are also denied. The tenability
of the suit is challenged on the ground that all the
properties of Shavaji are not included in the suit.
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5. After filing of the written statement,
Defendants failed to appear before trial Court to
contest the suit further. Plaintiff - Shankar examined
himself at Exh. 15. He has deposed in accordance with
his plaint so also it is specifically claimed that
there was a marriage between Shavaji and Sakhubai i.e.,
mother of the Plaintiff. To support his oral evidence,
he placed reliance on the death certificate of Sakhubai
indicating name of her husband as Shavaji. Reliance is
also placed on school leaving certificate indicating
that Shavaji is father of the Plaintiff. The said
contention of the Plaintiff and the evidence on record
went unchallenged as he was not cross-examined. The
Defendants obviously failed to lead any evidence. The
Trial Court by judgment dated 07.09.2015 decreed the
suit by holding that the Plaintiff is son of Shavaji
and Sakhubai. The said findings are recorded
essentially on the ground that the evidence led by the
Plaintiff has gone unchallenged.
6. This judgment and decree passed by the Trial
Court was assailed before the First Appellate Court in
RCA No. 08/2018. Before the First Appellate Court the
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Defendants though sought remand of the suit for giving
an opportunity of hearing and leading evidence to the
Defendants. The First Appellate Court however upheld
the impugned order before it and hence, this Second
Appeal.
7. Learned Counsel for the Defendants/Appellants
submits that the Trial Court has committed error in
casting burden upon the Defendants to prove that their
father Shavaji was not married to Sakhubai i.e. mother
of the Plaintiff. It is his submission that the burden
ought to have been placed on the Plaintiff to prove
that there was such marriage. It is his submission by
relying upon the judgment of the Hon'ble Supreme Court
in case of Bant Sing and Anr. vs. Niranjan Singh (D) by
Lrs. and Anr. 2008 AIR (SC) 1512 that the issue of
validity of the marriage between Shavaji and Sakhubai
ought to have been considered by the Courts below
keeping in mind the provisions of Section 50 of the
Evidence Act. It is his submission that for want of
examining any witness who has attended the marriage, it
cannot be held that there was a valid marriage between
these persons. It is his further submission that the
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burden of proof would always be on the Plaintiff and
since the same has wrongly placed on the Defendants, it
becomes a substantial question of law. To support these
submissions, he placed reliance on the judgment of
Supreme Court in case of Rangammal v. Kuppuswami and
Anr, AIR 2011 SC 2344. It is further argued that all
the joint family properties are not included in the
suit and hence, on that count alone suit ought to have
been dismissed by the Trial Court. Finally, it is
submitted that there was error committed by the
Advocate for the Defendants in not causing appearance
before the Trial Court and this has resulted into their
non appearance and non contesting of the suit. He,
therefore, seeks remand of the suit before the Trial
Court. In support of these submissions, he placed
reliance on following judgments: Ram alias Ramdas
Sheshrao Neharkar vs. Sheshrao baburao Neharkar and
Others, (2024) 7 SCC 512 & Ariane Orgachem Private
Limited vs. Wyeth Employees Union and Others, (2015) 7
SCC 561.
8. Learned Senior Counsel appearing for the
Plaintiff/Respondent submits that this is not the case
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wherein the judgment has been passed on the basis of
incorrect issue framed by the Trial Court. According to
him, though the issue framed is not happily worded,
however, Plaintiff has discharged his initial burden of
proving the marriage between the Shavaji and Sakhubai
and that he is their son. It is his contention that
apart from the oral evidence of the Plaintiff, there is
corroborative statement in the form of school leaving
certificate of Plaintiff so also death certificate of
his mother i.e., Sakhubai. It is his submission that
since the evidence led by the Plaintiff had gone
unchallenged, there occurred no occasion for the
Plaintiff to lead evidence to substantiate his case any
further. It is his submission that in so far as non
inclusion of the house property is concerned, there is
explanation provided in the evidence by the Plaintiff,
which has not been challenged by the Defendants.
According to him, in order to entertain an Appeal under
Section 100 of the CPC, there ought to exist a
substantial question of law and in absence thereof, the
Appeal cannot be entertained.
9. At the outset, it needs to be recorded that
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the Appellants/Defendants after filing written
statement failed to cause appearance before the Trial
Court and that has resulted into Plaintiff being not
cross-examined. Thus, at first instance it was
obligatory on the part of the Defendants to show to the
First Appellate Court that as to the reason for which
they could not cause appearance before the Court below.
Though it is sought to be argued now that on account of
mistake of the Advocate the appearance is not caused,
there is no such ground raised before the First
Appellate Court. Now it cannot be allowed to be argued
that the ground now sought to be raised of the mistake
of the Advocate should be presumed to have been taken
up before the First Appellate Court. Needless to say
that unless the party provides a satisfactory reason
for non appearance before the Court, it is to be held
responsible for the outcome thereof. Here in this case,
for want of any specific plea being raised before the
First Appellate Court showing sufficient reason for non
appearance, now it cannot be permitted for the
Defendants to say that their non appearance has
occurred on account of the mistake of the Advocate.
Thus, contention of the Counsel for the
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Defendants/Appellants sans merit and deserves no
consideration.
10. No doubt, in appropriate cases where the
outcome of the suit is on account of the incorrect
framing of the issue, it can become a substantial
question of law. Here in this case, Plaintiff has led
his evidence and has practically discharged the initial
burden upon the him to prove his case. The onus,
therefore, even otherwise, shifted on Defendants. They
however have failed to cause appearance before trial
Court after filing of the written statement and have
chosen not to cross-examine the Plaintiff. The evidence
of the Plaintiff thus went unrebutted.
11. Now question arises as to whether it would be
open for the Defendants now to claim that the prejudice
is caused to them on account of their absence without
justifying the absence itself. Though the issue framed
by the Trial Court was not happily worded, however, as
a matter of fact Plaintiff led the evidence and
discharged initial burden on him. Perusal of order
impugned does not show that the suit has been decreed
solely on the ground that Defendants failed to
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discharge the burden, wrongly placed upon them. The
trial Court has duly considered the un-controverted
oral evidence of Plaintiff supported by documentary
evidence and accepted the same. Thus, for want of the
decision of the suit only for the reason that the
Defendants have not led evidence, it cannot lead
inference that there exists a substantial question of
law in this present Appeal.
12. As far as the judgment cited in case of
Rangammal (supra), the Hon'ble Supreme Court has held
that the substantial question of law will arise while
appreciating the question of burden of proof. A burden
of proof is misplaced on a particular party and
recording findings in a particular way has been done,
then it vitiates the judgment. It is so observed in
paragraph 20 indicating that it has happened so in the
said matter. As far as present case is concerned, the
evidence of the Plaintiff has gone unchallenged,
initial burden is, therefore, duly discharged by
Plaintiff. The onus obviously has to shift upon the
Defendants to prove otherwise. Perusal of the impugned
judgment also does not indicate that the Trial Court
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was swayed away with the fact that burden casts upon
the Defendants. The judgment clearly indicates that the
Trial Court has considered the evidence led by the
Plaintiff and accepted the same in view of the
supporting documentary evidence. In respectful view of
this Court, the above cited judgment has no application
to the present case.
13. Perusal of the impugned judgment and order
passed by the Trial Court indicates that the Trial
Court has duly considered the oral evidence of the
Plaintiff, which is duly supported by the documentary
evidence on record. Since such evidence has gone
unchallenged, no fault can be found that with the Trial
Court if such evidence is accepted and is made a basis
for passing of the judgment.
14. As far as Section 50 of the Evidence Act is
concerned, it deals with relevancy of opinion on
relationship. This provision permits a Court to form
opinion as to the relationship of one person to
another. Such existence of relationship can be opined
from conduct of any person, who has special means of
knowledge. It must be relevant to take note of proviso
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to the said section, which makes such opinion not
sufficient to prove a marriage in a proceeding under
the Indian Divorce Act and in a prosecution under
Section 494, 495, 497 and 498 of the Indian Penal Code.
Thus, opinion formed by a Court in respect of
relationship even on the basis of oral evidence would
be sufficient. The documentary evidence to substantiate
such fact has not been excluded from consideration.
Here in this case, it is not only oral evidence of the
Plaintiff to establish that he was born in the year
1957 and marriage of his mother is performed prior
thereto. There is cogent documentary evidence to
support his case. His date of birth is duly proved from
the school leaving certificate so also the name of
father and mother. The death certificate of his mother
Sakhubai indicates that her husband was Shavaji. Thus,
this is not the case wherein there is only oral
statement led by the Plaintiff in respect of marriage
of the parents but the same is duly corroborated by the
documentary evidence on record. It would be too harsh
to call upon the Plaintiff to prove the marriage of his
parents, which has taken place around 50 years ago.
More particularly, when the Defendants have not
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challenged the evidence of the Plaintiff, no fault can
be found with the findings recorded by the Trial Court
about accepting the relationship between the parties.
15. The Hon'ble Supreme Court in case of Ram alias
Ramdas Sheshrao Neharkar (supra) has dealt with the
provision of Section 50 of the Evidence Act. A bare
perusal of the said judgment indicates that the
discrepancies in the evidenced led with regard to the
marriage was not considered. Moreover, there was no
evidence placed on record with regard the alleged
marriage between the parties. Considering the facts of
the said case, it was held so. As far as present case
is concerned, there is undisputed evidence of the
Plaintiff supported by the cogent documentary evidence.
16. So far as the issue of non joinder of the
other properties of the joint family is concerned, the
same has been duly explained by the Plaintiff in his
evidence. The said explanation is sufficient to keep
the other properties out of the suit, more particularly
when the Plaintiff does not claim any share and
provides reason for its non inclusion.
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17. As far as the issue of limitation is
concerned, first of all no issue of maintainability of
the suit has been raised on the point of limitation,
which is not pure question of law but mixed question of
facts and law. Apart from this, the pleadings in the
plaint clearly indicate that the suit was not filed
immediately after death of father, the reason that the
Plaintiff was given 1/3rd share in the agricultural
yield for years together and only after the same was
stopped and when the partition was denied cause of
action accrued for him to file the suit. Merely because
the suit has been filed after long years of attaining
majority by that itself it cannot be said that suit is
barred by limitation.
18. As a result of above discussion, it can be
said that without justifying the absence before the
Trial Court, now the Defendants are intending to seek
the remand of the suit on grounds set out in memo of
Appeal. Needless to say that without justifying the
absence before trial Court and without raising any plea
as to what prevented them to appear before trial Court
in the Appeal before the First Appellate Court, it
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would not be open for the Appellants to claim so in the
Second Appeal. Apart from this, there is absolutely no
material on record to hold that on account of the
mistake of the Advocate, Defendants failed to contest
the suit. Thus, it cannot be assumed that their non
appearance is outcome of mistake on the part of their
Advocate.
19. In view of above discussion, this Court is of
the considered view that there is no substantial
question of law involved in this Appeal. Accordingly,
Appeal stands dismissed. Pending Civil Application(s),
if any, stand disposed of.
(R. M. JOSHI, J.)
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