Ram @ Ramdas Sheshrao Neharkar vs Sheshrao Baburao Neharkar

2024 INSC 498 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5038 OF 2012

RAM @ RAMDAS SHESHRAO NEHARKAR … Appellant (s)

VERSUS

SHESHRAO BABURAO NEHARKAR AND OTHERS … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. Aggrieved against the judgment1 passed by the High

Court2, the plaintiff is in appeal before this Court. The appellant/

plaintiff had filed the suit3 for partition and separate possession

of the suit property. It was claimed that his mother Padminibai Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2024.07.09 18:07:20 IST Reason:

1 Judgment dated 24.11.2009 passed in Second Appeal No. 14 of 2009 2 High Court of Bombay, Bench at Aurangabad 3 Regular Civil Suit No. 224 of 1994

Page 1 of 5 had married with the respondent no. 1/defendant no. 1, and he

was born from that wedlock. At the time of filing of the suit, the

appellant was 35 years of age. Along with his alleged father, his

wife and two sons were also impleaded as defendants.

2. The Trial Court4 decreed the suit and directed for

grant of 1/5th share to the appellant/plaintiff accepting the

contention raised by the appellant/plaintiff that there was

marriage between the respondent no. 1/defendant no. 1 and

Padminibai, and that the appellant/plaintiff was born from that

wedlock. The First Appellate Court5 upheld the judgment and

decree of the Trial Court vide judgment dated 13.08.20086. In a

challenge made by the respondents/defendants, the High Court

reversed the judgment and decree of the Trial Court and the

First Appellate Court and dismissed the suit filed by the

appellant/plaintiff.

3. The contention raised by learned counsel for the

appellant/ plaintiff was that the High Court should not have

entered into the arena of re-appreciation of evidence led by the

parties while hearing the second appeal. The Trial Court as well

4 Court of Joint Civil Judge (J.D) at Kaij, District Beed 5 Court of Ad-hoc District Judge -3, at Ambajogai, District Beed 6 Regular Civil Appeal No. 126 of 1998

Page 2 of 5 as the First Appellate Court had concurrently found that the

appellant/plaintiff had been able to establish his case about the

marriage of respondent no. 1/defendant no. 1 with Padminibai

and that the appellant/plaintiff was born from that wedlock. The

findings by the High Court deserve to be set aside.

4. After hearing learned counsel for the

appellant/plaintiff, in our opinion, no case is made out for

interference in the present appeal. From the perusal of the

judgment of the High Court, it is evident that the relevant facts

to establish the factum of marriage of mother of

appellant/plaintiff with respondent no. 1/defendant no. 1 were

not considered by the Trial Court as well as the First Appellate

Court. There were large scale discrepancies in the evidence led.

The marriage was sought to be established by the

appellant/plaintiff only by leading oral evidence. The material

witness namely Padminibai, the so called mother of the

appellant/plaintiff, who had allegedly married the respondent

no. 1/defendant no. 1, was not produced in support of his case

by the appellant/plaintiff.

5. Further, the suit was filed by the appellant/plaintiff

nearly 16-17 years after he had attained majority. Prior to that

Page 3 of 5 he never raised any claim against respondent no. 1/defendant

no. 1 if according to him he was his father. The High Court has

also noticed the fact that Padminibai, who is claimed to be the

mother of the appellant/plaintiff had re-married claiming that

the same was solemnized after she was abandoned by

respondent no. 1/defendant no. 1. From the pleadings and oral

evidence it was sought to be established, as if the marriage

was a child’s play. Firstly, the appellant/plaintiff has not been

able to establish that there were any matrimonial relations

between the respondent no. 1/defendant no. 1 and Padminibai.

Secondly, even if there was any marriage, nothing is pleaded as

to whether there was any divorce before she re-married. It has

also come in record that the appellant/plaintiff had been

residing in village Surdi, where Padminibai was living with her

husband Rudrappa.

6. In a suit filed for partition and separate possession

claiming that the appellant/plaintiff was the son of respondent

no. 1/defendant no. 1, born from his marriage with Padminibai,

very heavy burden was on the appellant/plaintiff to prove this

fact, when the factum of marriage was denied by the

respondent no. 1/defendant no. 1, as he was married to Page 4 of 5 Sheshbai (respondent no. 4/defendant no. 4). From the

evidence led by the appellant/plaintiff, he had failed to

discharge that burden. The High Court had rightly reversed the

findings recorded by the Trial Court and the First Appellate

Court, being perverse.

7. For the reasons mentioned above, we do not find any

merit in the present appeal. The same is accordingly dismissed,

with no order as to costs.

……………….……………..J. (C.T. RAVIKUMAR)

……………….……………..J. (RAJESH BINDAL) New Delhi July 9, 2024.

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