1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 328 OF 2009 Kamala wd/o Gangadhar Waghmare Vs. Sangita wd/o Gangadhar Waghmare Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Order Shri A. S. Dhore Adv for appellant. Shri P. Moon Adv H/f Shri A. M. Rizwy Adv for respondents 1 & 2. Shri A. D. Mohagaonkar Adv for respondent 3. Smt. Kirti Satpute Adv for respondents 4 & 5. CORAM:_ C. L. PANGARKAR J. Dated: 18 th MARCH, 2010. Heard learned counsel for the appellant and the respondents. This Second Appeal is preferred by original defendant No.2. Respondent No.1 had instituted a suit for declaration that she was the legally wedded wife of one Gangadhar Waghmare. Gangadhar Waghmare was serving as a Lineman in M. S. E. B. He died in the year 1997. The claim was preferred before the Executive 2 Engineer M. S. E. B. by three ladies namely the plaintiff, defendant No.2 and defendant No.4 claiming that all of them were legally wedded wives of deceased Gangadhar. Deceased Gangadhar had not filled any nomination form and therefore M. S. E. B. refused to pay the amount to any one of these wives and directed them to obtain an order from the Court as to who was legally wedded wife of Gangadhar. The plaintiff/respondent No.1 has stated earlier that she was the legally wedded wife and her son plaintiff No.2 was born to her out of legal wedlock. The appellant and the other respondents refuted the claim of the plaintiff/respondent no.1 that she was the legally wedded wife and they claimed that they were in fact the legally wedded wives. The learned Judge of the trial Court upon consideration of the evidence and particularly relying on the evidence of mother of Gangadhar held that the defendant No.2 Kamala was the legally wedded wife. Suit was partly decreed and counter claim of defendant no.2 was decreed fully. Feeling aggrieved thereby original plaintiff preferred an appeal before the District Court. Learned Additional District Judge who dealt with the appeal did not agree with the finding of the trial court and found that in fact Sangita was legally wedded wife. Normally the finding as 3 recorded by the First Appellate Court binds the High Court unless it is shown that finding that has been rendered by First Appellate Court is patently wrong or is not borne out from the evidence on record. Learned counsel for the appellant i.e. defendant No.2 contends before me that in view of the admission given by the mother of the deceased a finding as recorded by the First Appellate Court was not correct and that of the trial Court was in fact correct. He submits that mother was the best person who could have deposed with regard to the marriage which Gangadhar had entered into with these three ladies. He brings to my notice the observations of the learned Judge of the trial Court wherein he observed that mother of the deceased Gangadhar had admitted that defendant No.2 was the wife of deceased Gangadhar. Question that was required to be decided was as to who was first wife of the deceased. It appears after going through the judgment of the trial Court that Changunabai the mother did not give any admission to the effect that defendant No. 2 Kamlabai was the first wife of Gangadhar. First Appellate Court had in fact appreciated the evidence on record and has found that child that was born to plaintiff was born on 20.09.1978. If the child was born on 20.09.1978 it must be assumed 4 and presumed infact that Gangadhar and the plaintiff No. 1 were married atleast in December 1977 or January 1978. It has been stated by Kamalabai that she was married 17 years back with Gangadhar. Learned Judge of the First Appellate Court has found that even if that statement is accepted it is clear that she was married after marriage of plaintiff with Gangadhar. I do not find that the learned Judge has in any way erred in appreciating the evidence. There is no reason to interfere with the order of the learned Judge. No substantial question of law is involved. What was urge was in fact a question of fact and as already observed the finding of fact recorded by the First Appellate Court should normally be accepted by the High Court. In the circumstances, I see no substance in the second appeal. The same is dismissed in limine. JUDGE svk 5 6 7