1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.138 OF 2006 Smt.Sulabai W/o.Ganu Girmal & Ors. .. Appellants V/s Smt.Gourabai Ganpati Girmal & Ors. .. Respondents WITH SECOND APPEAL NO.137 OF 2006 Smt.Sulabai W/o.Ganu Girmal & Ors. .. Appellants V/s Smt.Gourabai Ganpati Girmal & Ors. .. Respondents Mr.G.M.Savagave for the Appellants. Mr.P.M.Arjunwadkar for Respondent No.1. CORAM: R.G.KETKAR, J. DATE: 18th October, 2011. P.C.: 1. Heard Mr.G.M.Savagave, learned counsel appearing for the Appellants and Mr.P.M.Arjunwadkar appearing for Respondent No.1. 2. Original Defendant Nos.1 to 3 have preferred these Second Appeals challenging the judgment and decree dated 24.04.1997 passed by the learned Civil Judge, Junior Division, Kurundwad, in Regular Civil Suit No.71 of 1992 as also the judgment and decree dated 19.11.2005 passed by the learned Additional District 2 Judge, Jaysingpur in Regular Civil Appeal No.28 of 2004 & Regular Civil Appeal No.40 of 2004. 3. By the judgment and decree dated 24.04.1997 the learned trial Judge decreed the suit instituted by the 1st Respondent (hereinafter referred as the original plaintiff), and held that the plaintiff is entitled to partition and separate possession of 1/6th share in the suit property of village Abdul lat, Taluka Shirol,District Kolhapur. Aggrieved by this decision, the plaintiff preferred Regular Civil Appeal No.28 of 2004 and the Appellant (hereinafter referred as original Defendant No.1) preferred Regular Civil Appeal No.40 of 2004. By the judgment and decree dated 19.11.2005 the learned Additional District Judge dismissed the Regular Civil Appeal No. 40 of 2004 preferred by Defendant No.1 and partly allowed Regular Civil Appeal No.28 of 2004 preferred by the original plaintiff. The learned District Judge modified the decree to the extent of the plaintiffs share. As against the trial Court’s decision that the plaintiff is entitled to 1/6th share, the learned District Judge held that the plaintiff is entitled to partition and possession of her 1/3rd share in the property. 4. In support of these appeals, Mr.Savagave contended that 3 basically the suit instituted by the plaintiff being Regular Civil Suit No.71 of 1992 itself was not maintainable. He submitted that earlier the plaintiff had instituted Regular Civil Suit No.6 of 1989. The said suit was however withdrawn on 02.05.1992 without reserving any liberty. The said suit was instituted on the basis of same cause of action and seeking identical reliefs. He therefore submitted that the present suit is not maintainable. 5. Apart from that he further submitted that basically the plaintiff has not established that she is legally wedded wife of Ganpati. On the other hand Defendant No.1 has established that she is legally wedded wife of said Ganpati. Despite this positoin, the Courts below came to the conclusion that the plaintiff is legally wedded wife of said Ganpati. He submitted that in order to substantiate her claim, the plaintiff did not lead any evidence. He therefore submitted that the Courts below committed grave errors in decreeing the suit of the plaintiff. 6. On the other hand Mr.Arjunwadkar supported the impugned orders. He submitted that on appreciation of evidence on record, the Courts below have recorded the finding that the plaintiff is legally wedded wife of Ganpati. The claim of the plaintiff that 4 she is legally wedded wife was substantiated by PW 2 Shamrao, cousin of Ganpati. Even the original Defendant No.5 Mangal Chaugule, daughter of Ganppati’s brother Kallapa had filed written statement accepting the claim of the plaintiff. Even otherwise, the plaintiff has led evidence to substantiate her marriage with Ganpati. The marriage between plaintiff and Ganpati was performed on 18.05.1954 whereas even accepting the claim of Defendant No.1, according to Defendant No.1 her marriage with Ganpati was performed sometime in the year 1977. He therefore submitted that the Courts below correctly came to the conclusion that the plaintiff is legally wedded wife of Ganpati. 7. I have considered the submissions made by learned counsel for the parties. The first contention raised by Mr.Savagave is that the suit instituted by the plaintiff is not maintainable as on the basis of same cause of action and for the identical reliefs, she had instituted earlier suit being Regular Civil Suit No.6 of 1989 which was withdrawn on 02.05.1992. Perusal of the order dated 02.05.1992 shows that the plaintiff had withdrawn the said Suit with permission to file suit in future. In view of this position, I am unable to accept the contention of Defendant No.1 that the 5 present suit instituted by the plaintiff is not maintainable. 8. As far as contention about validity of the marriage of the plaintiff with Ganpati is concerned, as noted earlier, Defendant No.5 had filed written statement supporting the case of the plaintiff. Even PW2 Shamrao, cousin of Ganpati has deposed about performance of marriage of the plaintiff with Ganpati. This aspect was considered by the Courts below, and in particular in Paragraphs 16 & 17 of the judgment, the learned District Judge has considered this aspect. After considering the material on record the Courts below have held that the plaintiff is legally wedded wife of Ganpati. The said finding is a finding of fact. The said finding is based upon appreciation of evidence and therefore cannot be interfered in the second appeal. Mr.Savagave relied upon Section 10 of the Hindu Succession Act, 1956 to contend that the Defendant No.1 being widow of Ganpati is entitled to share. The learned District Judge has considered this aspect in Paragraph 18 of the judgment. In my opinion the learned District Judge rightly came to the conclusion that the Defendant No.1 is not entitled to the share as she married Ganpati during the subsistence of his marriage with the plaintiff. 6 9. No substantial question of law arises in these second appeals and hence both the second appeals stand dismissed. (R.G.KETKAR, J.)