1 S.A. No. 672.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.672 OF 2008 Prakash S/o Tatyaba Hemade .. APPELLANTS VERSUS Yamunabai Rajaram Hemade & others ...RESPONDENTS ... Shri Gholap, Advocate for the appellant Shri P.S. Pawar, Advocate for respondent No. 1 Shri A.B. Gatne, Advocate for Respondent No. 5 & 6 CORAM : S.V. GANGAPURWALA, J. DATE : 29th November, 2010. PER COURT : This is defendants Second appeal. The present respondent No. 1 filed suit for partition and separate possession. The Trial Court,decreed the suit, the defendant preferred an appeal, the appellate Court dismissed the appeal and confirmed the Judgment and Decree passed by the Trial Court. The defendant has assailed the said Judgment in the Second Appeal. 2. Shri Gholap, learned Counsel for the 2 S.A. No. 672.08 appellant contended that both the Courts have erred by perversely appreciating the evidence on record. According to Shri Gholap, learned Counsel, the plaintiff has to prove the marriage with the deceased Rajaram, in absence of the details of the marriage, the Courts could not have held that the plaintiff is the widow of deceased Rajaram. More particularly, when the factum of marriage itself was disputed by the defendant. The learned Counsel further contended that the documentary evidence which was filed on record is of the period after the filing of the suit, which shows that the plaintiffs are bent upon creating false record. The learned Counsel further submitted that the Courts have merely gone on sympathy that the plaintiff is an old illiterate lady which cannot be a substitute for a legal proof. He also further submitted that in alternative the appellant has given a proposal that if his appeal is allowed, he would pay an amount of Rs. 34,000/- to the plaintiff or Rs. 8500/- for the first year and thereafter, after lapse of one year go on paying maintenance amount. 3 S.A. No. 672.08 3. Shri Pawar, learned Counsel for the respondent, on instruction submitted that the said proposal is not acceptable to the plaintiff. He further contended that both the Courts have concurrently come to the conclusion regarding factum of marriage. On the contrary, the defendant themselves failed to enter the witness box to deny the said factum of marriage. As such, an adverse inference deserves to be drawn against them. 4. No doubt the plaintiff has to prove his case by preponderance of probabilities, and the Courts cannot without proof of the facts, adjudicate a matter merely on the basis of sympathy or the age of the parties. In the present case, to prove the factum of marriage that plaintiff was the wife of deceased Rajaram, the plaintiff has entered into the witness box, she has also examined PW-2 who was present at the time when marriage was performed between deceased Rajaram and the plaintiff. Both the Courts on appreciation of the oral evidence have come to the conclusion that plaintiff had proved the 4 S.A. No. 672.08 factum of a marriage with deceased Rajaram. According to the plaintiff and her witness, the marriage was performed, when plaintiff was about 17 to 18 years of age and Rajaram was about 30 to 32 years of age i.e. more than 65 years before she had tendered the evidence. A rustic women from the rural village is not expected to give all the details of the marriage which had taken place more than 65 years back. None the less the plaintiff and her witness have stated the name of the priest who had performed the marriage and some of the ceremonies. The plaintiff has to prove the fact of marriage by preponderance of probabilities. The defendants even did not stepped into the witness box to disapprove the case of the plaintiff. Even, if the documentary evidence is not considered which was subsequent to the filing of the suit . The other evidence is taken into consideration by both the Courts. The view taken by the Courts below is a plausible view. Second Appeal cannot be entertained only on the ground that some other view is also possible, as is held by the Apex Court in the case of “ Vidyadhar V/s. Manikrao, reported in AIR 1999 SC 5 S.A. No. 672.08 1441”. 5. It is not disputed that the property was the ancestral property and Rajaram had share in the property, once it is held that the plaintiff has proved the fact that she was married with deceased Rajaram, then the natural consequences is the allotment of share to the plaintiff, which the Courts have properly awarded. 6. In the light of the above, the Second Appeal is dismissed being sans substantial question of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA,J] SDM* 672.09/2911.10