1 19sa200 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.200 OF 2000 Dnyanu Kalu Chougule (since deceased through L.Rs) ...Appellants vs. 1 Amubai w/o Tukaram Chougule & Ors....Respondents Mr.Sanjay Thokade for the appellants Mr.M.R.Katikar for the respondent nos.1 to 3 CORAM : A.S.OKA,J. DATE : NOVEMBER 29, 2011 P.C.: 1 Heard the learned counsel for the appellants. The appellants are the legal representatives the first defendant and the first to third respondents are the original plaintiffs. The first respondent claims to be widow of Tukaram and second and third respondents are the children of Tukaram. The case made out is that the original first defendant Dnyanu and the said Tukaram were the real brothers and the suit properties were the ancestral properties of these brothers. A suit for partition filed by the first to third respondents was contested by the appellant by contending that the deceased Tukaram was not related to him. The Trial Court held that deceased Tukaram was the brother of the original appellant and proceeded to pass a decree for partition in respect of one half share. In the appeal the said decree has been confirmed. 2 19sa200 2 The learned counsel for the appellant submitted that the Courts below committed an error by relying upon the birth extract at Exh.31 in as much as the same is not in prescribed form and the same does not disclose the name of the person giving notice of the birth. He submitted that the genuineness of the birth extract is in doubt as there is no procedure which requires the name of the child born to be added in the birth register. He pointed out that the application for additional evidence filed in the Second Appeal shows that the name of the third respondent is described as Shivaji Sadhu Chougule and not as Shivaji Tukaram Chougule. He relied upon the registration of the F.I.R on 10 th April 1992 at the instance of the first respondent in which her name is shown as the wife of Sadhu Chougule. He relied upon the decision of this Court in case of Paryanibai w/o Raghoji Dhendge Vs. Bajirao s/o Deorao Marathe (AIR 1963 Bombay 25). He submitted that mere production of birth extract is not sufficient and the entry therein must be connected with the person concerned. 3 I have considered the submissions. It will be necessary to make a reference to the findings recorded by the Appellate Court. In paragraph 15 of the Judgment, the Appellate Court has held thus : 15 Genuineness of the birth extract (Ex.31) nowhere disputed. It is also an admitted position that defendant no.1 is son of Kalu Hari Chougule. Birth extract (Ex.31) says that a son is born to Kalu Hari Chougule on 14.8.1935 and 3 19sa200 son s name is Tukaram. Admittedly, Kalu Hari Chougule died on same day i.e. 14.8.1935. (underline supplied) In paragraph 14, the Appellate Court noted that in the appeal, relationship of deceased Tukaram with the plaintiffs was tried to be disputed but the said contention was not raised in the written statement. The Appellate Court noted that first defendant did not depose that Tukaram was not the husband of the first respondent and second and third respondents were not the children of Tukaram. Therefore, the Appellate Court rejected the case made out by the Appellant that first to third respondents are not related to Tukaram. 4 The submission of the learned counsel for the appellants is that the birth extract at Exh.31 mentioned the place of birth of Tukaram as the village Ambade and the first respondent stated that he was born at Shirale. The Appellate Court has dealt with the said submission by holding the villages are adjoining villages. The submission of the learned counsel for the appellant in paragraph 11 of the Judgment shows that there was no challenge to the genuineness of the birth extract but it was submitted that the birth extract at Exh.31 was insufficient to prove that Tukaram was the brother of the first respondent. In paragraph 15 of the Judgment of the Appellate Court, there is a clear finding that genuineness of the birth extract was not disputed. Birth extract shows that Tukaram was 4 19sa200 the son of Kalu Hari Chougule. The first defendant was the son of Kalu Hari Chougule. 5 The documents have been produced along with application for additional evidence to show that the name of the husband of the first respondent was Sadhu. However, the Appellate Court has held that in his deposition, the first defendant did not state that the first respondent was not the wife of Tukaram and second and third respondents were not the sons of Tukaram. Hence, the documents tendered along with application for additional evidence will not help the appellant. 6 Hence, it is not possible to interfere with the concurrent findings of fact recorded by the Courts below. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. Civil application no.1172 of 2011 is dismissed. Civil application nos.2194 of 2000 does not survive and the same is disposed of. JUDGE