1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.429 OF 2007 Smt.Shashikala Ganpat Pavale ..Appellant V/s. Shri Sunil Dattopant Kendurkar ..Respondent Mr.R.R.Mahagaonkar, advocate, for the appellant Mr.S.V.Sadavarte, advocate, for the respondent No.1 Mr.B.H.Mehta, AGP, for the respondent No.2 CORAM : A.S.OKA, J. DATE : 22ND FEBRUARY, 2008 P.C. . The submissions of the learned advocates appearing for the parties were heard on the last date. As this Court was inclined to dismiss the appeal, time was granted to the advocate for the appellant to ascertain whether the appellant wants time to vacate the suit property. The advocate for the appellant has today made a statement that the appellant does not desire to pray for time and therefore, the appeal may be decided on merits. 2. The appellant is plaintiff in Regular Civil 2 Suit No.239 of 1992 filed by her against the State of Maharashtra and others. The appellant is the second defendant in Regular Civil Suit No.589 of 1991 filed by the first respondent. The dispute relates to a constructed platform (referred to as 'ota') admeasuring 10 x 12 feet. The said ota originally belongs to the State of Maharashtra. 3. One Smt.Radhabai Ganpat Pavale was a flood affected person in the floods of the year 1961 at Pune. The said Radhabai and her husband Ganpat were residing near Omkareshwar Temple at Pune prior to the floods. The suit property was alloted to the said Radhabai in her capacity as the flood affected person. The said Ganpat is maternal uncle of the first respondent. According to the case of the respondent, he along with his parents were residing with Radhabai and her husband Ganpat. According to the first respondent, he constructed one extra room near the suit property i.e.the 'Ota'. Radhabai died in the year 1974 and her husband Ganpat died in the year 1984. According to the case of the first respondent, the appellant was 3 a resident of village Shelu Manav, Tal.Kalamb, District Osmanabad. The first respondent's mother's sister residing at village Kelvade, Taluka Bhor, District Pune came in contact with the appellant who had come to the said village Kelvade due to drought in District Osmanabad. The appellant started working in the suit premises as a servant of Ganpat Pavale. 4. According to the case of the first respondent an entry of name of the appellant was made in the record by Tahsildar. According to the case of the first respondent, Tahsildar was misguided by the appellant as a false representation was made by her that she is a widow of the deceased Ganpat. A portion of the suit property is in possession of the appellant. The first respondent filed a suit on the ground that the appellant has no right, title and interest in respect of the premises in her possession and he has inherited the suit property. The said suit was contested by the appellant. The appellant also filed her own suit bearing Regular Civil Suit 4 No.239 of 1992 for a declaration that she was a legally wedded wife of the deceased Ganpat and she had begotten a son by name Balaji from the said Ganpat. The trial Court dismissed the suit filed by the first respondent and decreed the suit filed by the appellant by directing the first respondent to handover possession of a portion of the suit premises occupied by him. There were two appeals preferred by the first respondent. The appeals were allowed by the Appellate Court by holding that the first respondent was the owner of the suit property. Therefore, a decree was passed against the appellant for possession. The Appellate Court held that the appellant has failed to prove that she is a legally wedded wife of the deceased Ganpat. 5. The learned advocate for the appellant submitted that the trial Court has recorded clear findings of the fact as regards appellant's marriage with Ganpat. He submitted that without considering the merits of the said findings, only on the basis of surmises the Appellate Court has 5 interferred by recording a very cryptic finding. He submitted that there was a consistent record to show that the appellant was a legally wedded wife of Ganpat. He submitted that without considering the evidence on record, the Appellate Court has interferred with the findings of the fact recorded by the trial Court. He submitted that the first respondent filed a suit only for depriving the appellant of her possession over the suit property. The learned advocate for the first respondent supported impugned Judgment and Decree. 6. I have carefully considered the submissions. It must be noted that though there were two different suits, two different appeals and consequently two separate appeals, there is only one Second Appeal preferred by the appellant. However without going into this objection I have considered his submissions on merits. 7. Perusal of the Judgment of the Appellate Court shows that following factual aspects have been considered by the Appellate Court for coming 6 to the conclusion that the appellant has not established her marriage with deceased Ganpat. (i) Certified copy of the report at Exh.46 regarding death of Ganpat shows that his age at the time of death was 61 years. (ii) The age of the appellant disclosed in the plaint filed in the year 1992 was 41 years. (iii) Considering the age of Ganpat as reflected from the document at Exh.46 at the time of demise of his wife Radhabai, his age must be 52 to 53 years. (iv) At the time of demise of Radhabai, the appellant must be very young (less than 25 years old) and therefore it is not possible to accept that she had married to Ganpat who was more than 50 years old at that time. (v) The case made out by the first respondent that the appellant was wife of one Rajendra Nale and Balaji was the son begotten to her from 7 Rajendra Nale was supported by the fact that in the extract of the voters list dated 1st January, 1970 the appellant was shown as wife of Rajendra Nale. (vi) The Certificate at Exh.47 issued by the Tahsildar shows that the first respondent was residing in the suit premises from the year 1976. (vii) The document at Exh.49 shows that the marriage of the first respondent and his sisters was celebrated in the suit property on 31st May, 1983. (viii) The voter's list shows that the first respondent and his family members were residing in the suit premises with the deceased Radhabai and Ganpat. (ix) The mother of the first respondent died in the suit property. 8. It is in the context of the aforesaid factual aspects which are found on the basis of the 8 documentary evidence on record that the Appellate Court has held that the version of the appellant in her evidence regarding performance of marriage with Ganpat is very cryptic. In fact, the finding of fact is that the evidence of the Appellant is silent regarding performance of ceremonies at the time of marriage. In the context of the documentary evidence on record and considering the oral evidence, the Appellate Court has disbelieved the case of the appellant as regards her marriage with the deceased Ganpat. 9. It must be also noted that admitted position is that allotment of the suit property was made in the name of Radhabai, wife of Ganpat as the said Radhabai was found to be a flood affected person. The relationship between first respondent, deceased Ganpat and Radhabai is hardly disputed. 10. There is hardly any scope to interfere with the findings recorded by the Appellate Court on the basis of appreciation of oral and documentary evidence on record. Therefore, the Appellate Court 9 rightly allowed the appeals preferred by the first respondent. 11. No substantial question of law arises. Appeal is accordingly dismissed. Decree for possession shall not be executed for a period of three months from today. (A.S.OKA, J.)