( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 445 OF 1991 Sarubai w/o Babu Dhangar, R/o Village Deoni, Tq. Udgir, District Latur APPELLANT VERSUS 1. Vishwanath s/ Biru Dhangar, R/o Deoni, Tq. Udgir, District Latur. 2. Prabhu s/o Biru Dhangar, R/o Deoni, Tq. Udgir, District Latur. 3. Chandrammabai w/o Biru Dhangar R/o Deoni, Dist. Latur (Appeal abated against this respondent vide Registrar’s order dated 15-07-1992) 4. Lingubai w/o Lingappa Dhangar (Since this respondent died, her name is deleted) RESPONDENTS ..... Mr. B.N. Patil, advocate for the appellant. Mr. S.V. Chandole, advocate holding for Mr. V.G. Sakolkar, advocate for the respondents. ..... [CORAM : K.U. CHANDIWAL, J.] [DATE : 22nd April, 2010] ORAL JUDGEMENT : 1. On 25th October, 1991, on hearing the advocates, the appeal is admitted, on the grounds No. F, G, I, J, M ( 2 ) and O as substantial questions of law between the parties. The said grounds are as under. (F) The learned Additional Judge wrongly disbelieved the evidence of Mahadabai on the ground of her second marriage when the parties are belonging to Dhangar community in which second marriage is permissible, even otherwise the second marriage is not forbidden by law. (G) Inference drawn by the Additional District Judge that all the ground of not attending funeral of Babu by Mahadabai is wrong, because in many cases even close relatives cannot attend the funeral due to uncertain events. (I) The learned Additional District Judge wrongly disbelieved the documentary evidence on record i.e. voter’s list, certificate of Gram Panchayat, certificate of police patil, revenue record when it was not denied by the ( 3 ) respondents. (J) The learned Additional District Judge wrongly disbelieved the voter’s list on the ground that she is living in house No. 37 and not in No. 34 which is wrong, is helpless widow suffering from leprosy, driven out of the house. (M) It ought to have been held by the Additional District Judge that the Head Constable Vinayak is independent witness and his evidence is reliable as during investigation of accidental case of Babu, he found that the appellant is his wife. (O) The courts below wrongly applied strict cannons of evidence when the parties are vulgar villagers and particularly the appellant is suffering from leprosy and illiterate lady without having any monetary assistance to fight legal battle in courts. ( 4 ) 2. The appellant Sarubai claimed to be wife of Babu Dhangar and filed suit for partition and separate possession against Vishwanath, Prabhu, Chandrammabai and Lingubai, the family members from the branch of Biru. According to the plaintiff/appellant, one Lingappa was the original person in the family of the respondents. The respondent No. 4 is the widow of said Lingappa. Lingappa expired about fifteen years back, leaving behind him two sons, namely, Dashrah and Biru and six daughters. Dashrath had a son – Babu – and plaintiff/appellant is widow of said Babu. The respondent No. 3 is widow of Biru and mother of respondents No. 1 and 2. Biru and Dashrath are no more. Dashrath died prior to Lingappa. The appellant further contended, Babu committed suicide when he was member of joint family with the defendants. After death of Babu, the plaintiff/appellant lived in the family with the defendants as one of the members. There was no partition of ancestral property and, therefore, the appellant being the widow of Babu, the granddaughter- in-law of respondent No. 4, she is entitled for half share in the suit property and hence, she filed the above referred suit. ( 5 ) 3. The respondents denied status of the appellant with the family. It is specifically pleaded, Lingappa had only one son Biru and six daughters. There was no son by name Dashrath or Dashrath had a son by name Babu. They denied, plaintiff/appellant was wife of Babu. They contended, the appellant had no concern with the family of Lingappa. 4. In order to establish the status, the plaintiff has examined herself at Exh-22, she examined Mahadabai, her witness at Exh-23 and her mother at Exh-24. She examined Head Constable Vinayak at Exh-66 and one Nivarti is examined at Exh-67. It is canvassed by the appellant and her mother about the narration given hereinabove. 5. In order to substantiate these contentions, the documentary evidence in the form of voters’ list, certificate of Gram Panchayat, evidence of police patil was tendered. The Courts found, the police patil had in enquiry about death of Babu, recorded statements of few witnesses in terms of section 161/162 of the Criminal ( 6 ) Procedure Code and those statements were tried to be relied on by plaintiff/appellant. 6. Both the Courts rightly negated to rely and accept evidence of Police Constable Vinayak to prove such statement recorded in a criminal prosecution. The voters’ list indicates that the residence of the appellant is shown at house No. 37 while the respondents are shown to be residing in house No. 34. There is no explanation for this mist coming from anybody though the learned Judge has given reference about difference in the surname in the voters’ list and scenario of the appellant with the respondent. However, I agree to contentions of Mr. Patil that sometimes in villages, the parties refer their caste/s. 7. The revenue record to which reference was given by the appellant and not accepted by both the Courts, as referred by the learned first Appellate Court in paragraph No. 10 of its judgement, does not call for any interference. The Gram Panchayat certificate and certificate of Police Patil produced by the appellant ( 7 ) could not be acted upon as the issuing authorities did not step in. Nivarti, in his evidence at Exh-67, tried to support the appellant to be a widow of Babu. However, in the cross-examination, he accepted, Biru was the only sun of Lingubai. The witness has excluded any person by name Dashrath from the branch of Lingappa. Thus, the above referred documents could not establish status of the appellant to the family of Lingappa or the respondent.It is curious, the appellant stakes claim from the branch of Dashrath and rider falls to Babu. In the scenario, there is no error in appreciation of evidence by both the Courts. The substantial questions of law, referred hereinabove between the parties, would not subsist. Those indeed will not be substantial questions of law, to answer in favour of the appellant. There is no mistake by both the Courts. The second appeal sans merit. It is dismissed. No costs. [ K. U. CHANDIWAL ] JUDGE NPJ/sa445-91 ( 8 )