1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 103 OF 1987 Radhabai W/o Somnath .. .. Appellant (Original Plaintiff) Versus 1. Anna Bhujanga Tonge, 2. Annarao Nilkanth Jadhav (Died) L.R.'s 2.a) Mahadu Annarao Jadhav 2.b) Malanbai Datta 2.c) Kalabai Bhivaji Both r/o Kiroda Khede, Tq. Kandhar, Dist. Nanded. 3. Keshav Nilkanth Jadhav. .. .. Respondents (Original Defendants) Shri Mijtaba Gulam Mustafa, Advocate for the Appellant. Shri S. S. Chaudhari, Advocate for the Respondent No. 1 to 3. CORAM : K. U. CHANDIWAL, J. DATE : 15TH JUNE, 2009. 2 ORAL JUDGMENT : 1. Heard the counsels extensively. By order dated 16.03.1988 the appeal is admitted on the ground No. 3 involving substantial question of law, as under : "(3) When marriage is admitted then there is presumption of law and particularly presumption under Section 112 of the Indian Evidence Act that a person begotten from out of the wed-lock is the son or daughter of the husband of her mother. The learned Appellate Court failed to apply this principle to the facts of the present case, and hence wrong and illegal judgment." 2. The plaintiff asserts that she is daughter of Maruti Deorao Mane born from defendant No. 4 and hence entitled for partition in relations to disputed property. The learned Civil Judge J. D. by judgment and order dated 28th August, 1986 accepted the contention and decreed the suit. The aggrieved defendant took the matter in the first appeal bearing R.C.A. No. 235/1983 and by order and judgment dated 05th August, 1986 the appeal came to be allowed and the judgment and decree was set aside. Consequently, the plaintiff is in appeal. 3. The status of the defendant was that of a purchaser of property from defendant No. 4 mother of the plaintiff. The core of controversy 3 revolves as to whether plaintiff was born from the marital relations of Kondiba Shinde with defendant No. 4 or she was born subsequently when defendant No. 4 had a Gandharva sort of marriage with Maruti Deorao. Both sides did not produce any document to substantiate their contention, the parties though had opportunity to lead to establish or destroy the case other side. 4. The counsel for the appellant would submit, it was erroneous on the part of the learned first appellate Court, when he has evaluated the evidence. It was not permissible in the light of Sec. 96 of Code of Civil Procedure. The counsel would argue the burden was heavy on the defendant to establish that the plaintiff was not a daughter born out of wedlock of Maruti with defendant No. 4 and since these contingencies have not occurred due to influence and there is miscarriage of justice by the first appellate Court. The counsel submits even the ground of appeal of first appellate court, does not indicate any challenge of the status of plaintiff as daughter of Maroti. 4. The contention of the counsel for the appellant though cosy, but difficult to digest and acted upon, as they are apparently betrayal to the settled position of Law. 5. The Evidence Act Section 112 contemplates as under : 4 "112. Birth during marriage, conclusive proof of legitimacy- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." 6. There is no provision to bring the case of plaintiff about patronage. When the plaintiff asserts that she was born out of wed-lock of her mother, defendant No. 4 by Gandharva form of marriage, the burden is heavy on the plaintiff to discharge. The status of the defendant in the matter is, particularly to be noticed as purchaser of property from defendant No. 4, naturally he could not lay his hands in the matter beyond certain limits. The defendant No. 4 after death of Maruti was the owner of the property left by Maruti. Consequently, it cannot be the plaintiff herein to stake the property left by said Maruti. 6. The contention that the learned first appellate court has travelled beyond the perview of Sec. 96 or beyond the ground raised in appeal memo is difficult to accept. The learned District Judge was just in reassessing the evidence as a last fact finding Court. The first appellate court found that there is miscalculation of the ages and mis-appreciation of evidence, the first appellate court has justifiably re-appreciated the 5 facts, though there is no such ground referred in appeal memo. 7. The evidence of Trimbak and Parasram on evaluation, indicates that plaintiff was born in 1957 prior to defendant No. 4's Gandharva form of marriage with Maruti. However, the marriage of defendant No. 4 with Maroti was in 1960. This finding of learned first appellate Court was not based on any assumption and presumption or cannot be said to be coupled with any surmises. Plaintiff quoted her age as 20 years, during evidence on 24 March, 1983. Kondiba died 30 to 35 years back and Parasram is 20 to 25 years old. Kalyabai (Defendant 4) had married to Maroti after 5-7 years of demise of Kondiba and she was born 2-3 years of Gandharwa. These details, rebells plaintiffs assertions of her birth after Marriage of defendant No. 4 with Maroti. Trimbak's evidence goes in altogether diagonally opposite events. I do not see that paragraph 10 of judgment of first appellate Court indicate something else. In the light of this scenario the appeal sans merit. The substantial question of law as indicated in ground No. 3 is answered in negative. [ K. U. CHANDIWAL, ] JUDGE bsb/June09/SA 103.87