Bombay High Court
Uttam Shankar Shikare vs Gitabai Shankar Shikare And Another on 28 July, 2025
2025:BHC-NAG:7474
1 19-sa-564-06j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 564 OF 2006
Uttam S/o. Shankar Shikare
Aged about 50 years, Occ. Agriculturist,
R/o. Bansi, Tahsil Pusad, Dist. Yavatmal. . . . APPELLANT
// V E R S U S //
1. Smt. Gitabai Wd/o. Shankar Shikare,
Aged about 67 years, Occ. Nil,
R/o. Belgavan, Tq. Pusad, Dist Yavatmal.
(Dead)
2. Bandu S/o. Deorao Hudekar,
Aged about 45 years, Occ. Agriculturist,
R/o. Bansi, Tq. Pusad, Dist. Yavatmal.
3. Sukhdeo Ramji Natkar,
Aged about 61 years, Occ. Agriculturist,
R/o. Deshmukh Nagar, Pusad,
Tah. Pusad, Dist. Yavatmal.
(Amended as per Courts order dated
04.10.2024 and 12.11.2024) . . . RESPONDENTS
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Shri Pruthviraj S. Chawhan, Advocate for appellant.
Shri Vishwa Gadbaile h/f. Shri K. S. Narwade, Advocate for respondent
nos. 1 and 2.
Shri V. A. Lohiya h/f. Shri D. R. Khapre, Advocate for respondent no. 3.
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CORAM :- M. W. CHANDWANI, J.
DATED :- 28.07.2025
ORAL JUDGMENT :-
Heard.
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2. The Second Appeal challenges the judgment and order
dated 13.07.2005 passed by the Additional District Judge, Pusad in
RCA No. 27/2004, whereby the judgment and decree dated
16.04.2004 passed by the Trial Court in RCS No. 9/2001 in favour of
the appellant came to be set aside by dismissing the suit filed by the
appellant.
3. The brief facts of the case necessary for disposal are as
under:-
i) The appellant claiming himself to be the son of Shankar
Shikare, who died in the year 1997, filed a suit alleging that after the
death of his father- Shankar, he and his mother- respondent no. 1
become the owners of the suit property. His mother i.e. respondent
no.1, executed a Gift Deed dated 24.04.2000 in favour of respondent
no. 2 in respect of the entire suit property including his share.
Therefore, he prayed for declaration that the Gift Deed dated
24.04.2000 is not binding on him and sought his share in the suit
property by effecting partition of the suit property.
ii) Respondent no. 1 has came up with a case that she and
her husband- Shankar are not the parents of the appellant i.e. the
appellant is not their son. She contented that the appellant is the son
3 19-sa-564-06j.odt
of Bhaurao Shikare, the brother of Shankar. Respondent no. 1 and her
husband had no children of their own. Therefore, they had a feeling of
love and affection towards the appellant and they also maintained him.
She claimed that after the death of her husband- Shankar, she inherited
the entire suit property but the Trial Court wrongly decreed the suit of
the appellant without considering the fact that the appellant had no
interest in the suit property. The matter was then carried in appeal
before the Additional Sessions Judge (ASJ), Pusad by respondent no.
2, the donee of the suit property. Learned ASJ, Pusad allowed the
appeal by setting aside the decree passed by the Trial Court and
dismissed the suit of the appellant. Therefore, the appellant is before
this Court in Second Appeal.
4. This Court by order dated 10.01.2008 framed the
following substantial question of law :-
"Whether the judgment of first appellate court suffers from
perversity because of the fact that it did not consider the
evidence of School Leaving Certificate to be enough and the
other evidence available under Section 50 of the Indian
Evidence Act on record ?"
5. It is required to be noted here that the appeal came to be
dismissed for want of prosecution on 14.06.2018. Meanwhile,
respondent no. 2- donee of the suit property sold the said property to
respondent no. 3 by a registered Sale-Deed dated 04.01.2020.
4 19-sa-564-06j.odt
Thereafter, the appeal came to be restored on 04.10.2024. On the
application of the appellant, respondent no. 3 was added as a party
respondent in this appeal being transferee of the suit property.
6. Mr. Chawhan, learned counsel appearing on behalf of the
appellant submitted that the First Appellate Court did not consider the
School Leaving Certificate (SLC) of the appellant. According to him,
the said SLC clearly mentions the name of the father of the appellant
as Shankar Shikare, which has been duly considered by the Trial Court.
The First Appellate Court ignored this valuable document and also the
evidence of other witnesses who, in categorical terms have deposed
that the appellant is the son of Shankar. According to him, the entry in
the official record of the school has presumptive value but that has not
been considered by the First Appellate Court. Ignoring this principle of
law, the First Appellate Court has allowed the appeal by dismissing the
suit. To buttress his submission, he seeks to rely upon the decision in
the case of Madan Mohan Singh and others Vs. Rajni Kant and
another1 wherein, in para nos. 18 to 20, the Hon'ble Supreme Court
has held as under:-
"18. Therefore, a document may be admissible, but as to
whether the entry contained therein has any probative value
may still be required to be examined in the facts and
circumstances of a particular case. The aforesaid legal
proposition stands fortified by the judgments of this Court in
Ram Prasad Sharma Vs. State of Bihar [AIR 1970 SC 326], Ram
Murti Vs. State of Haryana [AIR 1970 SC 1029], Dayaram Vs.
1 (2010) 9 SCC 209
5 19-sa-564-06j.odt
Dawalatshah [AIR 1971 SC 681], Harpal Singh Vs. State of H. P.
[AIR 1981 SC 361], Ravinder Singh Gorkhi Vs. State of U.P.
[(2006) 5 SCC 584], Babloo Pasi Vs. State of Jharkhand [(2008)
13 SCC 133], Desh Raj Vs. Bodh Raj [AIR 2008 SC 632] and
Ram Suresh Singh Vs. Prabhat Singh [(2009) 6 SCC 681]. In
these cases, it has been held that even if the entry was made in
an official record by the concerned official in the discharge of
his official duty, it may have weight but still may require
corroboration by the person on whose information the entry has
been made and as to whether the entry so made has been
exhibited and proved. The standard of proof required herein is
the same as in other civil and criminal cases.
19. Such entries may be in any public document, i.e. school
register, voters' list or family register prepared under the Rules
and Regulations etc. in force, and may be admissible under
Section 35 of the Evidence Act as held in Mohd. Ikram Hussain
Vs. The State of U.P. [AIR 1964 SC 1625] and Santenu Mitra Vs.
State of W. B. [AIR 1999 SC 1587].
20. So far as the entries made in the official record by an
official or person authorised in performance of official duties are
concerned, they may be admissible under Section 35 of the
Evidence Act but the court has a right to examine their probative
value. The authenticity of the entries would depend on whose
information such entries stood recorded and what was his
source of information. The entry in school register/school
leaving certificate require to be proved in accordance with law
and the standard of proof required in such cases remained the
same as in any other civil or criminal cases."
7. Conversely, Mr. Gadbaile, learned counsel appearing on
behalf of respondent nos. 1 and 2 vehemently submitted that
respondent no. 1 and deceased-Shankar were issueless. Just because
they felt love and affection towards the appellant, as he was their
nephew and they were maintaining him, that does not mean that the
appellant is the son of deceased- Shankar and respondent no. 1.
According to him, the appellant's witness in his cross-examination has
admitted the fact that deceased- Shankar and respondent no. 1 were
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issueless. He further submitted that the SLC has not been duly proved
by examining the official from the school by whom the said certificate
came to be issued. According to him, this aspect has been duly
considered by the First Appellate Court and hence, he sought rejection
of the appeal.
8. Shri Lohiya, learned counsel appearing on behalf of
respondent no. 3 submitted that the suit property has been purchased
by respondent no. 3 after the Second Appeal came to be dismissed in
default and before the restoration of the same. Therefore, the doctrine
of lis pendens cannot be applied to his case and therefore, the suit
against respondent no. 3 would not survive and the appellant has to
file a fresh suit against respondent no. 3 for seeking any relief that he
wants. To buttress his submission, he seeks to rely upon the decision
of the Division Bench of this Court in the case of Primella Sanitary
Products Pvt. Ltd. Vs. Gurudas Vishwanath Sinai Gaitonde 2 wherein in
para nos. 85 and 86, it has been held as under:-
"85. I am, with respect, unable to agree with the learned
Judge insofar as he holds that the doctrine of lis pendens would
apply to sales after a suit is dismissed and before it is restored.
The learned Judge stated that he failed to see any reason for
holding that between the date of dismissal of the suit under
Order IX Rule 2 of the Code of Civil Procedure and the date of
its restoration, the lis pendens did not continue. The reasons for
holding to the contrary do not appear to have been before or
furnished to the learned Judge, I apprehend that if this
proposition is accepted, it could cause enormous difficulties and
injustice to innocent third parties. Worse, still it would, as I will
demonstrate, leave the title to properties uncertain in perpetuity.
2 2010 (7) Mh.L.J. 104
7 19-sa-564-06j.odt
It would arm the unscrupulous with a weapon of oppression of a
permanent and indestructible nature.
86. Firstly, it is necessary to distinguish between a dismissal
of a suit on merits and the filing of an appeal therefrom, from a
dismissal of a suit for default and the restoration thereof
pursuant to an application for the same after the period
prescribed for such an application. An appeal is a continuation
of the suit. The appellant has a statutory right of appeal if it is
filed within the prescribed period. I do not wish to make any
observation about cases where the appeal is filed after the
period of limitation and the delay is condoned by the Court.
Such cases are entirely different from cases where the Court has
to consider the effect of lis pendense on transactions which
occur between the date of the dismissal of the suit for default
and the date of presentation of an application for restoration
especially when made after the period prescribed for such an
application. Once an application for restoration is made,
different considerations would apply which I will deal with
shortly. But, between the period of the dismissal of a suit and an
application for restoration, the provisions of section 52 and
principle analogous thereto cannot apply."
9. Having heard the learned counsels for the respective
parties and having gone through the judgments of the Trial Court, the
First Appellate Court and the record and proceedings, it transpires that
the appellant has examined himself and two other witnesses in his
support who have deposed that the appellant is the son of deceased-
Shankar. Apart from that, respondent nos. 1 and 2 have examined two
witnesses who have deposed contrary to the appellant and his
witnesses by stating that the appellant is not the biological son of
deceased- Shankar and respondent no. 1.
10. It appears that the Trial Court, by relying on the SLC
(Exh.35) was much impressed with the entry made therein showing
8 19-sa-564-06j.odt
Shankar Shikare as the father of the appellant and relied upon the
version of the appellant and his witnesses to hold that the appellant
has proved that he is the son of respondent no. 1 and deceased-
Shankar. Consequently, the Trial Court held that the appellant also
inherited the suit property equally with respondent no. 1. Accordingly,
the Trial Court decreed the suit by holding that the Gift Deed dated
24.04.2000 is not binding on the appellant. Whereas, the First
Appellate Court observed that the appellant is not the son of deceased-
Shankar and respondent no. 1 by holding that the SLC has not been
properly proved and mere submission of the SLC will not be sufficient
to prove paternity. Consequently, the First Appellate Court set aside
the decree passed by the Trial Court and non-suited the plaintiff.
11. Both the sides and their witnesses have deposed contrary
to each other with regard to the paternity of the appellant. However,
perusal of the cross-examination of Kishan Dongare, the witness of the
appellant, reveals that he has admitted the fact that deceased- Shankar
did not have any biological son and he felt love and affection towards
the appellant. This admission of his own witness demolishes the case
of the appellant with regard to his claim that he is the biological son of
deceased- Shankar, more particularly when nothing has been brought
on record with regard to the entry in the Gram Panchayat record
showing that the appellant was born to respondent no. 1. Hence, the
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First Appellate Court has rightly given weightage to the evidence of the
mother/respondent no. 1, who otherwise would not have deposed
against the appellant had he been her son. Therefore, the First
Appellate Court has rightly considered this aspect while non-suiting
the appellant.
12. So far as the submission of the learned counsel for the
appellant that the SLC depicts Shankar Shikare as the father of the
appellant is concerned, undoubtedly no witness has been examined by
the appellant; hence, I am in agreement with the findings of the First
Appellate Court that merely exhibiting the document does not amount
to proving the contents of the document. No doubt, the entry in the
school register and the SLC having presumptive value as held in the
case of Madan Mohan Singh (supra) relied upon by the learned
counsel for the appellant but such presumption arises only when its
contents have been proved in absence of examination of the officials of
the school. It cannot be said that, mere exhibition of the document
will prove the document and the contents thereof. Therefore, the case
of Madan Mohan Singh (supra) will not come to the rescue of the
appellant.
13. Lastly, as stated above, the suit property has been
transferred to respondent no. 3 on 04.01.2020 whereas the appeal
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came to be dismissed for want of prosecution on 14.06.2018 and
restored on 04.10.2024. The sale-deed was executed in the
interregnum period. The sale-deed cannot be said to be hit by Section
52 of the Transfer of Property Act, 1882 in wake of the decision of the
Division Bench of this Court in the case of Primella Sanitary Products
Pvt. Ltd. (supra). Therefore, on this count also the appeal cannot be
allowed.
14. Resultantly, the appeal is sans merits and it is dismissed.
(M. W. CHANDWANI, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 01/08/2025 17:14:20
