1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.51 OF 2009 WITH CIVIL REVISION APPLICATION NO.52 OF 2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr.R. S. Deshmukh holding for Mr.A. S. Deshmukh, Advocate for petitioner. Mr.B. N. Palve, Advocate for respondent. ........ [CORAM : K.U.CHANDIWAL, J. ] DATE : 21st January, 2010. PER COURT : 1. Heard. 2. Both the civil revision applications are taken together as they seek to challenge the common judgment and order dated 27.01.1995 in Regular Civil Appeal Nos. 111/1991 and 112/1991 passed by the II Additional District Judge, Ahmednagar. 3. By consent of the Counsel, 2 considering the age of the matters as pending since long and particularly when the order of the learned Civil Judge, Senior Division, Ahmednagar in the original petition is dated 30th January, 1991, the matters are finally heard at the admission stage. The Record and Proceedings called, perused by respective Counsel. 4. Ananda Maruti Shinde, an employee in Irrigation Department expired at Sassoon Hospital Pune on 08.12.1986. Two ladies, the applicant in Misc. Application No. 238/1988 (Gaubai) and Smt.Kalavati @ Gaubai applicant in Misc. Application No. 141/1988 were staking claim to the properties left over by the said Ananda, ascertaining that each one of them is married wife of said Ananda. The applicant Kalawati (Misc. Application No.141/1988) asserted that she married to Ananda in Gandharva form and she stayed with him till his last breath. There was no issue out of cohabitation, she stayed at Kadhade colony, carried out all the treatment requisite at the material time. She asserted that she possess ration card, she produced bank record and also examined other employees where Ananda was working. 3 5. Gaubai stake her claim stating that, she married to Ananda long back in the year 1957 and in order to establish her contentions examined Ananda's brother Sambhaji Shinde, who asserts about the such relation. 6. The learned Civil Judge, Senior Division on assessing evidence accepted, the case propounded by Smt.Kalawati by allowing her application No.141/1988 and rejected the application No.238/1988 moved by Gaubai. Gaubai took the matter before the learned District Judge, Ahmednagar and the learned District Judge at Ahmednagar set aside the above referred order and confirmed the issue of succession certificate in favour of Smt.Gaubai Shinde, the applicant in application No.238/1988 by order dated 27.01.1995. This order is impugned in the present proceedings. 7. The applicant Gaubai stated before the Court that out of wedlock with Ananda she had given birth to child, however for the reasons best known, she did not produce either birth or death certificate of her child. The learned Civil Judge, Senior 4 Division did not accept evidence of brother of Ananda namely Sambhaji Shinde, since, there were long drawn controversies between Kalawati and said Sambhaji Shinde. 8. The First Appellate Court, did not believe the version of Kalawati that her first husband Sambhaji Gaikwad expired and then she entered in Gandharva form marriage with Ananda Shinde. The doubt expressed by the First Appellate Court is without any document, any evidence or without any suggestions. There was no reason for the First Appellate Court to discard version of Kalawati when she says her husband was no more when she entered in marriage in Gandharva form. The photographs which she has tendered showing her company with Ananda was not considered. 9. The learned First Appellate Court recorded a erroneous findings disbelieving her name in the Ration Card, with deceased, on simple ground, it had also name of his brother's child. The learned First Appellate Court has ignored the evidence of co-employee of Ananda who 5 vouched that it was Kalawati who used to visit the office with leave application concerning Ananda. The evidence demonstrate, the medical bills of Ananda were tendered by Kalawati. These voluminous documents should not have discarded by the First Appellate Court only on the basis of evidence of Sambhaji Shinde who is apparently on enimical terms with Kalawati. 10. The observations of the First Appellate Court being far from ground realities naturally warrant inference and hence, the order of the II Additional District Judge, Ahmednagar dated 27.01.1995 is set aside while the order of learned Civil Judge, Senior Division, Ahmednagar dated 30.01.1991 is confirmed. Hence the order :- a) The applicant in Misc. Application No.141/1988 before the learned Civil Judge, Senior Division is entitled for getting the succession certificate in respect of properties left over by Ananda Shinde. At the same time, the applicant in Misc.Application No.238/1988 before the learned Civil Judge, Senior Division, Ahmednagar is held to be not entitled to 6 stake claim for succession certificate. b) The Civil Revision Applications allowed to the extent as above. c) No costs. [ K.U.CHANDIWAL ] JUDGE gas/cra51.09