{"id":226023,"date":"2011-10-04T00:00:00","date_gmt":"2011-10-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shobhabai-vs-the-state-of-maharashtra-on-4-october-2011"},"modified":"2015-06-28T08:28:29","modified_gmt":"2015-06-28T02:58:29","slug":"shobhabai-vs-the-state-of-maharashtra-on-4-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shobhabai-vs-the-state-of-maharashtra-on-4-october-2011","title":{"rendered":"Shobhabai vs The State Of Maharashtra on 4 October, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shobhabai vs The State Of Maharashtra on 4 October, 2011<\/div>\n
Bench: S. S. Shinde<\/div>\n
                         1              cra134.11\n\n                                           \n          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY \n\n\n\n\n                                                             \n                     BENCH AT AURANGABAD\n\n          CIVIL REVISION APPLICATION NO. 134 OF 2011\n\n\n\n\n                                    \n     1.   Shobhabai w\/o Prakash Telure,\n          Age now 35 years, Occ: Household,\n\n\n\n\n                                   \n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad, Dist. Aurangabad.\n\n     2.   Siddharth s\/o Prakash Telure,\n\n\n\n\n                            \n          Age now 30 years, Occ: Education,\n          R\/o. Bhim nagar, Kannad,\n\n\n     3.\n                  \n          Tq. Kannad Dist. Aurangabad.\n\n          Aamarpali d\/o Prakash Telure,\n          Age now 18 years, Occ: Education,\n                 \n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad Dist. Aurangabad.     ...APPLICANTS \n\n            VERSUS             \n      \n\n\n     1.   The State of Maharashtra,\n   \n\n\n\n          Through Collector, Aurangabad.\n\n     2.   Smt. Mandanbai w\/o Prakash Telure,\n          Age now 40 years, Occ:  Household,\n\n\n\n\n\n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad Dist. Aurangabad.\n\n     3.   Ku. Ujwala d\/o Prakash Telure,\n          Age now 16 years, Occ:  Education,\n\n\n\n\n\n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad Dist. Aurangabad.\n\n\n     4.   Ku. Sharda d\/o Prakash Telure,\n          Age now 14 years, Occ:  Education,\n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad Dist. Aurangabad.\n\n\n\n\n                                     ::: Downloaded on - 09\/06\/2013 17:48:45 :::\n                             2                cra134.11\n\n\n     5.   Ku. Bharti d\/o Prakash Telure,\n          Age now 11 years, Occ:  Education,\n\n\n\n\n                                                                  \n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad Dist. Aurangabad.\n\n\n\n\n                                         \n     6.   Vishal s\/o Prakash Telure,\n          Age now 11 years, Occ: Education,\n          R\/o. Bhim nagar, Kannad,\n          Tq. Kannad Dist. Aurangabad.\n\n\n\n\n                                        \n          (Respondent Nos. 3 to 6 under\n           Guardianship of Resp.No.2.)   ...RESPONDENTS\n\n\n\n\n                               \n                          ...\n     Mr. H.M. Salve, Advocate for applicants.\n     Mr. D.V. Tele, AGP for respondent No.1.\n                   \n     Mr.K.U. Nikam,Advocate for respondent Nos. 2 to 6. \n                          ...\n                       CORAM         :S.S. SHINDE, J.\n                  \n                       RESERVED ON   :28-09-2011\n                       PRONOUNCED ON :04-10-2011 \n\n     JUDGMENT :\n<\/pre>\n
     .         Rule.     Rule   made   returnable   forthwith.\n<\/p>\n
     With   the   consent   of   learned   Counsel   for   the <\/p>\n
     parties, the matter is taken up for final hearing.\n<\/p>\n
     2.        This Civil Revision Application is filed <\/p>\n
     challenging   the   judgment   and   order   dated <\/p>\n
     04-03-2011 in Regular Civil Appeal No. 119 of 2007 <\/p>\n
     passed   by   the   District   Judge-5   Aurangabad.     The <\/p>\n
     revision   applicants   herein   filed   M.A.R.J.I.\n<\/p>\n
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                             3               cra134.11<\/p>\n
     No. 188 of 2006 in the Court of the Civil Judge, <\/p>\n
     Junior Division, Kannad.   The facts stated in the <\/p>\n
     M.A.R.J.I.   No.188   of   2006   are   reproduced   herein <\/p>\n
     below for ready reference.\n<\/p>\n
          “1. That,   the   Prakash   s\/o   Shahadu   Telure
\n          (hereinafter   referred   the   deceased)   died
\n          on   dt.23-10-2005   at   village   Kannad, <\/p>\n
          Tq.Kannad Dist. Aurangabad.\n<\/p><\/blockquote>\n
          2.<\/p>\n
               That   the   ordinary   and   permanent
\n          residence of deceased at the time of death <\/p>\n
          was at Bhimnagar, Kannad Tq. Kannad Dist.
\n          Aurangabad.\n<\/p><\/blockquote>\n
     3.   That   the   deceased   had   left   the   following <\/p>\n
     members of the family :-<\/p>\n
\n\n\n\n\n\n     Sr.   Name of the legal heirs.         Relationship   with \n     No.                                    the deceased.\n                                                         Wife\n\n\n\n\n\n      1   Shobhabai w\/o Prakash Telure\n                                                  Son\n\n      2   Siddharth s\/o Prakash Telure \n      3   Aamrapali d\/o Prakash Telure               daughter\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 17:48:45 :::<\/span>\n                        4                cra134.11\n\n\n\n\n                                                             \n<\/pre>\n
     4.   That, the petitioners No. 1 to 3 are
\n     the legal heirs of the deceased, besides <\/p>\n
     them, there is no other successors legal
\n     representatives   to  the   deceased.   As  such
\n     the petitioners are entitled for heirship <\/p>\n
     certificate as prayed.  The dseceased was
\n     governed by the Hindu Law.\n<\/p>\n
     5.   That   the   deceased   has   left   no   will, <\/p>\n
     no application has been made for grant of
\n     letters   of   administration   of   the <\/p>\n
     deceased.\n<\/p>\n
     6.   That,   there   is   no   impediment   U\/sec.\n<\/p>\n
     370   or   other   provisions   of   the   Indian
\n     Succession Act and any other enactment to <\/p>\n
     grant   of   the   certificate   or   to   the
\n     validity thereof when granted.\n<\/p>\n
     7.   That, the deceased was in service in
\n     the   Revenue   Office,   Kannad   under   Deputy
\n     Collector,   Sillod   and   working   as   a <\/p>\n
     Talathi.  He was died  on the duty on dt.
\n     23.10.2005.     The   petitioner   NO.   1   would
\n     have   been   chances   to   get   service   on
\n     compassionate   basis   from   the   concerned
\n     department   and   to   get   official   all <\/p>\n
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\n                              5                cra134.11<\/p>\n
          benefits.\n<\/p>\n
          8.   That, the petitioners when approached
\n          to   the  concerned   Authority   of  department <\/p>\n
          and requested to them to give benefits of
\n          compassionate   basis,   that   time   the
\n          concerned   Authority   has   directed   to   the <\/p>\n
          petitioner   to   obtain   the   legal   heirship
\n          certificate   from   court   for   the   above
\n          purpose.\n<\/p>\n
          9.
\n                    igThat,   the   legal   heirship
\n          certificate   may   kindly   be   issued   in   the <\/p>\n
          name of the above petitioners.”\n<\/p>\n
     3.        The Civil  Judge, Junior Division,  Kannad <\/p>\n
     passed the following order.\n<\/p>\n
          ”    Petitioner moved this application for <\/p>\n
          heirship certificate.\n<\/p><\/blockquote>\n
               A notice was published in local daily
\n          newspaper   ‘Tarun   Bharat’   calling   anybody <\/p>\n
          to   raise   objection   if   any   within   one
\n          month   of   the   date   of   publication   of   the
\n          notice.     In   response   of   publication   of
\n          said   notice   objector   Mandanbai   Prakash <\/p>\n
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\n                              6                 cra134.11<\/p>\n
          Telure   and   other   appeared   and   filed
\n          objection   at   Exh.   14.     Thus,   this <\/p>\n
          position is become contentious.\n<\/p><\/blockquote>\n
               Learned  advocate   S.K.   Shejwal  argued
\n          that   the   objector   appeared   beyond   the
\n          period   mentioned   in   the   notice   and   on <\/p>\n
          this   point   he   submitted   for   discarding
\n          the   objection.   However,   I   found   no
\n          substance   in   such   argument,   because <\/p>\n
          though   the   objector   appeared   beyond   the <\/p>\n
          period   mentioned   in   the   notice,   yet   in
\n          the   interest   of   justice   an   opportunity <\/p>\n
          must be given to objector to contest the
\n          application.\n<\/p><\/blockquote>\n
               Since   the   petition   is   become
\n          contentious   it   needs   to   be   sent   to <\/p>\n
          Hon’ble   Civil   Judge   (S.D.)   Aurangabad.
\n          Hence   in   view   of   Chapter   XIV   para   304   & <\/p>\n
          305   of   Civil   Manual,   the   petition   be
\n          transferred   to   Hon’ble   Civil   Judge,
\n          Senior Division, Aurangabad.”\n<\/p><\/blockquote>\n
     4.        On   23-03-2007   the   Civil   Judge,   Senior <\/p>\n
     Division,   Aurangabad   after   considering   the   oral <\/p>\n
     and  documentary  evidence,  allowed  the application <\/p>\n
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\n                              7                cra134.11<\/p>\n
     filed   by   the   revision   applicants   and   issued <\/p>\n
     certificate.\n<\/p>\n
     5.         Aggrieved by the said judgment and order <\/p>\n
     dated 23-03-2007 respondent No. 2 herein Mandanbai <\/p>\n
     filed Regular Civil Appeal No. 119 of 2007 before <\/p>\n
     the Court of the District Judge-5 Aurangabad.\n<\/p>\n
     .          The   District   Judge-5,   Aurangabad   allowed <\/p>\n
     the appeal filed by Mandanbai and quashed and set <\/p>\n
     aside   the   order   dated   23-03-2007   holding   that <\/p>\n
     there   is   no   satisfactory   evidence   about   the <\/p>\n
     ceremonies   of   marriages   and   there   is   no   evidence <\/p>\n
     to show whose marriage took place first.\n<\/p>\n
     6.         Being aggrieved by the judgment and order <\/p>\n
     passed by the appellate Court, this Civil Revision <\/p>\n
     Application is filed by the revision applicants.\n<\/p>\n
     .          Learned   Counsel   appearing   for   the <\/p>\n
     revision   applicants   submits   that,   revision <\/p>\n
     applicant   No.1   Shobhabai   w\/o   Prakash   Telure   is <\/p>\n
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\n                              8                cra134.11<\/p>\n
     legally   wedded   wife   of   deceased   Prakash   s\/o <\/p>\n
     Shahalu Telure. Revision applicant No.2 Siddharth, <\/p>\n
     revision   applicant   No.   3   Amarpali   are   son   and <\/p>\n
     daughter   of   deceased   Prakash.     Deceased   Prakash <\/p>\n
     was   working   as   Talathi   in   the   office   of   Deputy <\/p>\n
     Collector, Sillod, who died on 23-10-2005.   It is <\/p>\n
     submitted   that,   after   death   of   Prakash,   the <\/p>\n
     revision applicants approached to authority with a <\/p>\n
     request   to   provide   employment   on   compassionate <\/p>\n
     ground.     The   authority   then   asked   the   revision <\/p>\n
     applicants   to   bring   legal   heirs   certificate   for <\/p>\n
     getting   the   benefit.   Therefore,   revision <\/p>\n
     applicants   filed   application   before   the   Civil <\/p>\n
     Judge,   Junior   Division,   Kannad     under   Bombay <\/p>\n
     Regulation   VIII   of   1827.   The   Civil   Judge,   Junior <\/p>\n
     Division, Kannad on receiving application from the <\/p>\n
     revision   applicants   issued   public   proclamation <\/p>\n
     inviting objection if any.\n<\/p>\n
     7.           Respondent No. 2 herein Mandanbai after <\/p>\n
     knowing,   after   expiry   of   period   filed   objection <\/p>\n
     denying   that   the   revision   applicants   are   legal <\/p>\n
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\n                              9                cra134.11<\/p>\n
     heirs   of   deceased   Prakash   and   claimed   that,   she <\/p>\n
     herself   and   her   children   are   legal   heirs   of <\/p>\n
     deceased   Prakash.     The   Civil   Judge,   Junior <\/p>\n
     Division, Kannad on receiving this objection from <\/p>\n
     the   respondents   herein,   transferred   the <\/p>\n
     application   to   the   Court   of   the   Civil   Judge, <\/p>\n
     Senior Division, Aurangabad.\n<\/p>\n
     8.         It   is   further   submitted   that,   the   Civil <\/p>\n
     Judge,  Senior  Division,  Aurangabad  framed  issues.\n<\/p>\n
     In   support   of   the   claim   of   the   revision <\/p>\n
     applicants,  revision  applicant  NO.1  Shobhabai  w\/o <\/p>\n
     Prakash   examined   herself   as   P.W.   1   and   in   her <\/p>\n
     support   examined   P.W.   2   Haribhau,   P.W.   3   Bhimrao <\/p>\n
     and   produced   the   documentary   evidence.   These <\/p>\n
     witnesses asserted that Mandanbai is wife of Sheku <\/p>\n
     s\/o   Chinda.   Respondent   No.   1   Mandanbai   examined <\/p>\n
     herself   as   P.W.   1.   Both   the   sides   produced <\/p>\n
     documentary   evidence   in   support   of   their <\/p>\n
     affidavits. Copy of affidavit and cross of P.W. 2 <\/p>\n
     Haribhau   is   placed   on   record.   Learned   Counsel <\/p>\n
     invited my attention to the affidavit and cross of <\/p>\n
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\n                             10                 cra134.11<\/p>\n
     P.W. 1 Shobhabai.  He further invited my attention <\/p>\n
     to copy of affidavit and cross of P.W. 2 Haribhau.\n<\/p>\n
     Learned   Counsel   further   invited   my   attention   to <\/p>\n
     affidavit   of   P.W.   3   Bhimrao   which   is   placed   on <\/p>\n
     record alongwith Civil Revision Application.\n<\/p>\n
     .          Learned   Counsel   for   the   revision <\/p>\n
     applicants   further   invited   my   attention   to   the <\/p>\n
     affidavit  in  cross  of D.W.  1  Mandanbai.     Learned <\/p>\n
     Counsel   for   the   revision   applicants   would   submit <\/p>\n
     that,   after   hearing   both   the   parties,   the   Civil <\/p>\n
     Judge,   Senior   Division,   Aurangabad   has   allowed <\/p>\n
     Misc.   Application   No.   188   of   2006   thereby <\/p>\n
     dismissing the objection raised by the respondents <\/p>\n
     and   legal   heirs   certificate   is   rightly   issued   in <\/p>\n
     favour   of   the   revision   applicants.     Learned <\/p>\n
     Counsel   further   invited   my   attention   to   the <\/p>\n
     reasons   recorded   by   the   Civil   Judge,   Senior <\/p>\n
     Division,   Aurangabad   while   granting   legal   heirs <\/p>\n
     certificate in favour of the revision applicants.\n<\/p>\n
     9.         Learned   Counsel   for   the   revision <\/p>\n
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\n                              11                cra134.11<\/p>\n
     applicants   submits   that,   the   appellate   Court   has <\/p>\n
     exceeded   the   jurisdiction   and   erred   in   quashing <\/p>\n
     and   setting   aside   the   judgment   and   order   of   the <\/p>\n
     Civil Judge, Senior Division, Aurangabad for want <\/p>\n
     of  evidence  of  ceremony  of  marriage  and  dates  of <\/p>\n
     marriages. It is submitted that, the Civil Judge, <\/p>\n
     Senior   Division,   Aurangabad   investigated   the <\/p>\n
     question   in   dispute   in   summary   proceedings   where <\/p>\n
     for proving marriage standard of proof need not be <\/p>\n
     so high as required in regular civil proceedings.\n<\/p>\n
     Learned   Counsel   further   submitted   that,   without <\/p>\n
     evidence   of   ceremony   of   marriage,   there   are <\/p>\n
     factors i.e. acceptance of society as husband and <\/p>\n
     wife,   continuous   cohabitation   of   parties   as <\/p>\n
     husband   and   wife,   openly   living   as   husband   and <\/p>\n
     wife and acceptance of their children by society, <\/p>\n
     which provides sufficient and conclusive inference <\/p>\n
     of   the   marriage.   It   is   further   submitted   that, <\/p>\n
     there   is   sufficient   evidence   to   prove   the <\/p>\n
     marriage.   P.W. 1 Shobhabai has stated on oath on <\/p>\n
     14-05-1989   as   per   Budha   Rites   her   marriage   took <\/p>\n
     place with deceased Prakash at village Wasadi.  In <\/p>\n
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\n                             12                 cra134.11<\/p>\n
     her support, she examined P.W. 2 Haribhau, P.W. 3 <\/p>\n
     Bhimrao   who   are   real   elder   brother   of   deceased <\/p>\n
     Prakash. These witnesses have also stated the same <\/p>\n
     fact. They have no interest to accept a lady who <\/p>\n
     is   not   married   with   their   brother   Prakash.   Their <\/p>\n
     version   in   the   cross   examination   had   not   been <\/p>\n
     shaken, they being members of family are competent <\/p>\n
     to state on the facts of marriage of Prakash.\n<\/p>\n
     .\n<\/p>\n
                It is further submitted that, documentary <\/p>\n
     evidence   in   support   of   marriage   of   revision <\/p>\n
     applicant NO.1 with deceased Prakash was produced <\/p>\n
     on record. Copy of invitation (marriage) card was <\/p>\n
     produced   on   record.     After   the   marriage,   the <\/p>\n
     information   was   recorded   in   the   office   of <\/p>\n
     Grampanchayat   Wasadi   on     16-05-1989.     Exhibit-27 <\/p>\n
     is   certificate   issued   by   Grampanchayat   Wasadi   to <\/p>\n
     that  effect.    Deceased  Prakash   was in service  in <\/p>\n
     the year 1992 and after his marriage, he submitted <\/p>\n
     nominee form for getting benefits in future to his <\/p>\n
     heirs.     In   the   nomination   form,   deceased   Prakash <\/p>\n
     has shown Shobhabai w\/o Prakash and Siddharth s\/o <\/p>\n
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\n                              13                  cra134.11<\/p>\n
     Prakash as nominees. Learned Counsel submits that, <\/p>\n
     the   statement   of   Prakash   amounts   to   an   admission <\/p>\n
     which   is   material   aspect   that   the   marriage   of <\/p>\n
     Shobhabai        with        deceased           Prakash                was <\/p>\n
     solemnised\/performed.   It   is   further   submitted <\/p>\n
     that,   respondent   Mandanbai   failed   to   prove   her <\/p>\n
     marriage   with   deceased   Prakash.     She   failed   to <\/p>\n
     establish   when   her   marriage   took   place.     The <\/p>\n
     District Judge failed to consider that Mandabai is <\/p>\n
     wife   of   deceased   Sheku   s\/o   Chinda   Lokhande,   who <\/p>\n
     was working as labourer in Kannad Sakhar Karkhana.\n<\/p>\n
     Mandanbai   had   received   benefits   of   her   husband <\/p>\n
     Sheku. Though Mandanbai denied the said fact, the <\/p>\n
     document   produced   on   record   rebutted   her   denial.\n<\/p>\n
     It   is   clear   that,   voters   list   is   at   Exh.   61, <\/p>\n
     wherein name of Mandanbai is shown at Sr. No. 578 <\/p>\n
     alongwith name of Prakash and Shoba at Serial No. <\/p>\n
     576   and   577   at   House   No.   18.     It   is   further <\/p>\n
     submitted   that,   the   District   Judge   failed   to <\/p>\n
     consider   other   valuable   evidence.     Exh.   30   is <\/p>\n
     death   certificate   of   Sheku   Chinda   who   died     on <\/p>\n
     22-07-1989   and   reported   on   26-07-1989   in <\/p>\n
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\n                              14                cra134.11<\/p>\n
     Grampanchayat.   Exh.   33   is   a   copy   of   voters   list <\/p>\n
     for   the   year   1988   wherein   Sheku   s\/o   Chindaji   is <\/p>\n
     shown as No. 659 and Mandanbai wife of Sheku is at <\/p>\n
     Sr. No. 660.   The documents shown Mandanbai since <\/p>\n
     before 1988 was wife of deceased Sheku s\/o Chinda.\n<\/p>\n
     Exh.   62   is   a   copy   showing   that   Mandanbai   had <\/p>\n
     received the benefit of deceased Sheku s\/o Chinda.\n<\/p>\n
     It   is   not   the   case   that   above   documents   are <\/p>\n
     fabricated.\n<\/p>\n
     10.        It   is   further   submitted   that,   Mandanbai <\/p>\n
     after  death  of  Prakash  on the  basis  of affidavit <\/p>\n
     dated   01-11-2006   of   her   brother   Anna   Sakharam <\/p>\n
     Bagul   obtained   marriage   certificate   from <\/p>\n
     Grampanchahyat  Sawkheda  showing  her  marriage  took <\/p>\n
     place   on   19-04-1988   with   Prakash.   She   filed <\/p>\n
     objection  on 12-01-2006,  affidavit  on 10-10-2006, <\/p>\n
     cross examined on 19-12-2006, however, there is no <\/p>\n
     reference   of   date   of   marriage   in   her   cross <\/p>\n
     examination.   Therefore,   it   is   clear   that,   the <\/p>\n
     marriage   certificate   produced   by   Mandanbai   is   a <\/p>\n
     created document and the appellate Court erred in <\/p>\n
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\n                             15                cra134.11<\/p>\n
     giving   importance   to   the   said   document.     Learned <\/p>\n
     Counsel   further   submitted   that,   the   alleged <\/p>\n
     documents   which   are     produced   on   record   by <\/p>\n
     Mandanbai   are   in   the   year   2006.     However, <\/p>\n
     documents produced by revision applicant No. 1 are <\/p>\n
     from   year   1988,   1989   onwards.     Learned   Counsel <\/p>\n
     further   submits   that,   the   District   Judge   is   not <\/p>\n
     correct   in   holding   that,   from   the   assertion <\/p>\n
     between the parties the matter is complicated and <\/p>\n
     its   nature   is   aggravated   due   to   insufficient <\/p>\n
     direct evidence. It is further submitted that, in <\/p>\n
     the present case, the Civil Judge, Senior Division <\/p>\n
     from   the   evidence   on   record   was   satisfied   that, <\/p>\n
     Shobhabai   is   legally   married   wife   of   deceased <\/p>\n
     Prakash   and   Siddharth   and   Amarpali   are   son   and <\/p>\n
     daughter   of   deceased   Prakash.     It   is   submitted <\/p>\n
     that,   sufficient   evidence   was   produced   on   record <\/p>\n
     to   show   that   Shobhabai   married   Prakash   on <\/p>\n
     14-05-1989.     Siddharth   and   Amarpali   are   begotten <\/p>\n
     from  Prakash.     It is further   submitted   that,  the <\/p>\n
     revision   applicants   herein   in   support   of   their <\/p>\n
     case, examined revision applicant No.1 at Exh. 24.\n<\/p>\n
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                              16                cra134.11<\/p>\n
     She   also   examined   Haribhau   Shahadu   Telure   and <\/p>\n
     Bhimrao   s\/o   Shahadu   Telure,   who   are   the   real <\/p>\n
     brothers of deceased Prakash.  The learned Counsel <\/p>\n
     for   the   revision   applicants   herein   invited   my <\/p>\n
     attention   to   the   number   of   documents   which   were <\/p>\n
     produced on record before Court below which are as <\/p>\n
     follows :\n<\/p>\n
          (1)   certified   copy   of   the   death   extract   of <\/p>\n
     deceased Prakash at Exh. 27 (2) certified copy of <\/p>\n
     nomination filed by deceased Prakash in respect of <\/p>\n
     Provident   Fund   at   Exh.   28,   (3)   Photo   copy   of <\/p>\n
     letter issued by Tahasildar Kannad at Exh. 29, (4) <\/p>\n
     death   extract   of   Sheku   Chindhya   Lokhande   at   Exh.\n<\/p>\n
     30,   (5)   the   certificate   issued   by   Municipal <\/p>\n
     Council Kannad in respect of opponent No.1 at Exh.\n<\/p>\n
     31, (6) the certificate issued by Kannad Sahakari <\/p>\n
     Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32, <\/p>\n
     (7)   voters   list   for   the   year   1988   of   village <\/p>\n
     Kannad   at   Exh.   33,   (8)   death   extract   of   Prakash <\/p>\n
     Telure   at   Exh.   34,   (9)   certificate   issued   by <\/p>\n
     Kannad   Municipal   Council   in   respect   of   the <\/p>\n
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\n                              17                cra134.11<\/p>\n
     revision   applicants   at   Exh.   35,   (10)   the <\/p>\n
     invitation   card   of   Jaldan   Vidhi   in   respect   of <\/p>\n
     deceased   at   Exh.   49,   (11)   the   attested   copy   of <\/p>\n
     monthly   payment   in   respect   of   Sheku   Lokhande   at <\/p>\n
     Exh.  62 and  (12)  death  extract  of Sheku  Lokhande <\/p>\n
     at Exh. 70.\n<\/p>\n
     11.        Therefore,   learned   Counsel   appearing   for <\/p>\n
     the   revision   applicants   relying   upon   the   grounds <\/p>\n
     taken   in   the   revision   application,   annexures <\/p>\n
     thereto,   documents   placed   on   record   and   reasons <\/p>\n
     recorded   by   the   Civil   Judge,   Senior   Division, <\/p>\n
     Aurangabad while granting certificate in favour of <\/p>\n
     the   revision   applicants   would   submit   that,   this <\/p>\n
     Civil Revision Application deserves to be allowed.\n<\/p>\n
     In   the   alternate,   he   submits   that,   in   case   this <\/p>\n
     Court is not convinced to allow the Civil Revision <\/p>\n
     Application,  in that  case, appointment\/service  of <\/p>\n
     Siddharth may be protected till the suit filed by <\/p>\n
     Mandanbai is finally disposed of.\n<\/p>\n
     12.        On   the   other   hand,   learned   Counsel <\/p>\n
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\n                             18                 cra134.11<\/p>\n
     appearing for the respondents submitted that, the <\/p>\n
     revision   applicants   herein   are   the   original <\/p>\n
     applicants   who   had   filed   the   application <\/p>\n
     M.A.R.J.I.   No. 188  of 2006  for grant  of heirship <\/p>\n
     certificate, claiming to be the legal heirs of one <\/p>\n
     deceased Prakash Shahadu Telure, r\/o Kannad, Dist.\n<\/p>\n
     Aurangabad,   who   was   serving   as   Talathi.     Said <\/p>\n
     application   came   to   be   allowed   by   the   learned <\/p>\n
     Civil   Judge,   Senior   Division,   Aurangabad.     It   is <\/p>\n
     further   submitted   that,   aggrieved   thereby,   the <\/p>\n
     respondents herein had preferred R.C.A. No. 119 of <\/p>\n
     2007 before the District Judge, Aurangabad, which <\/p>\n
     came to be allowed and the judgment and order of <\/p>\n
     the   Civil   Judge,   Senior   Division,   Aurangabad <\/p>\n
     granting   heirship   certificate   to   the   revision <\/p>\n
     applicants   has   been   set   aside.   It   is   further <\/p>\n
     submitted   that,   present   respondents   are   the <\/p>\n
     original   objectors   before   the   Court   of   the   first <\/p>\n
     instance   and   the   appellants   before   the   First <\/p>\n
     Appellate Court.  <\/p>\n
\n\n\n\n     .          It   is   further   submitted   that,   original \n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 17:48:46 :::<\/span>\n                             19                 cra134.11\n\n<\/pre>\n
     application   M.A.R.J.I.   No.   188   of   2006   was   filed <\/p>\n
     under   the   provision   of   Rule   4   of   the   Bombay <\/p>\n
     Regulation VIII of 1827.  The said Regulation VIII <\/p>\n
     of   1827   clearly   provides   that,   if   somebody   wants <\/p>\n
     recognition in respect of the right to any movable <\/p>\n
     or   immovable   property   of   any   deceased   person,   he <\/p>\n
     may   apply   for   such   recognition   in   the   form   of <\/p>\n
     Certificate  of heirship.  If there  is  no any such <\/p>\n
     right   to   any   movable   or   immovable   property,   no <\/p>\n
     such   certificate   can   be   granted.   It   is   further <\/p>\n
     submitted   that,   the   revision   applicants   have   not <\/p>\n
     claimed the heirship certificate in respect of any <\/p>\n
     property, either movable or immovable owned by the <\/p>\n
     deceased   Prakash   and   as   such,   the   application <\/p>\n
     legally   was   not   tenable   and   ought   to   have   been <\/p>\n
     rejected.     It   is   further   submitted   that,   the <\/p>\n
     parties   to   the   proceedings   have   led   oral   and <\/p>\n
     documentary   evidence   and   as   the   inquiry   was   of <\/p>\n
     summary nature, the documents have been exhibited <\/p>\n
     without   having   been   proved   as   per   the   provisions <\/p>\n
     of the Indian Evidence Act. The documents produced <\/p>\n
     and relied upon by the revision applicants herein <\/p>\n
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\n                              20                cra134.11<\/p>\n
     at   Exhbit-28,   29,   31,   32,   35,   49,   62   and   the <\/p>\n
     marriage   card   filed   at   page   NO.46   of   paper   book <\/p>\n
     herein,   have   not   been   duly   proved   through   proper <\/p>\n
     witnesses.\n<\/p>\n
     13.        Learned   Counsel   for   the   respondents <\/p>\n
     further   submitted   that,   the   oral   evidence   led   by <\/p>\n
     the   revision   applicants   is   also   not   trustworthy.\n<\/p>\n
     The deposition of applicant No.1 Shobhabai (P.W.1) <\/p>\n
     is  at page  No. 27 of  the paper  book.  She  at the <\/p>\n
     end of paragraph NO.1 of her examination in chief, <\/p>\n
     has   specifically   contended   that,   she   started <\/p>\n
     residing   with   her   deceased   husband   at   Bhimnagar, <\/p>\n
     Kannad   and is still  residing  there.    However,  in <\/p>\n
     her   cross   examination,   in   paragraph   No.9   at   page <\/p>\n
     No. 33 of the paper book, she has stated that she <\/p>\n
     cannot   tell   the   names   of   the   adjoining   residents <\/p>\n
     of her house at Bhimnagar, Kannad.   It is further <\/p>\n
     submitted   that,   P.W.   1   has   admitted   that,   her <\/p>\n
     children   are   residing   at   village   Wasadi,   Tq.\n<\/p>\n
     Kannad with her parents.   It is further submitted <\/p>\n
     that, P.W. 2 Haribbhau Telure also has admitted in <\/p>\n
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\n                             21                 cra134.11<\/p>\n
     his cross examination at Page NO. 37 of paper book <\/p>\n
     that,   Shobhabai   resides   at   Wasadi,   Tq.   Kannad <\/p>\n
     Dist. Aurangabad.\n<\/p>\n
     .          It   is   further   submitted   that,   original <\/p>\n
     applicants   have   also   examined   another   witness <\/p>\n
     namely Bhimrao Telure (P.W.3) in support of their <\/p>\n
     case.   However, though he was cross examined, his <\/p>\n
     cross   examination   is   missing   from   the   record   and <\/p>\n
     proceedings of the case and this fact was revealed <\/p>\n
     during   the   hearing   of   the   First   Appeal   and <\/p>\n
     therefore,   his   testimony   is   of   no   avail   to   the <\/p>\n
     revision   applicants.   It   is   also   submitted   that, <\/p>\n
     there   are   other   certain   important   admissions   on <\/p>\n
     record   which   go   in   favour   of   the   present <\/p>\n
     respondents.     P.W.   2   Haribhau   in   his   cross <\/p>\n
     examination  has  clearly  admitted  that, respondent <\/p>\n
     No. 6 herein namely Vishal is the son of deceased <\/p>\n
     Prakah   Telore   begotten   from   respondent   No.1 <\/p>\n
     Mandanbai   and   his   name   was   mentioned   in   the <\/p>\n
     invitation   card   that   was   circulated   for   the <\/p>\n
     Jaladan  Vidhi  (the  ceremony  of  the last  rites  of <\/p>\n
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\n                               22                 cra134.11<\/p>\n
     deceased   Prakash),   alongwith   the   names   other <\/p>\n
     relatives  of  said Prakash.    It is also  submitted <\/p>\n
     that, photocopy of one such card was also produced <\/p>\n
     by   the   revision   applicants   on   record   wherein   the <\/p>\n
     name of said Vishal Prakash Telure was missing.\n<\/p>\n
     14.        Learned   Counsel   for   the   respondents <\/p>\n
     further   submitted   that,   the   revision   applicants <\/p>\n
     have   produced   the   Voters   list   of   Kannad <\/p>\n
     Constituency for the year 1998 at Exhibit-33 which <\/p>\n
     is   at   page   54   of   paper   book,   to   show   that, <\/p>\n
     respondent No. 1 herein was the wife of one Sheku <\/p>\n
     Chintaji and names of said Sheku and one Mandanbai <\/p>\n
     are appearing at Sr. No. 659 and 660 in the said <\/p>\n
     list and they are shown to be aged 35 and 30 years <\/p>\n
     respectively.     It   is   further   submitted   that,   in <\/p>\n
     the same list at Sr. No. 676 the name of deceased <\/p>\n
     Prakash Shahadu also appears and his age is shown <\/p>\n
     as   21   years   and   it   is   very   much   hard   to   digest <\/p>\n
     that,   a   man   can   have   or   has   any   sexual <\/p>\n
     relationship   with   a   woman   about   10   years   elder <\/p>\n
     than  him.     The revision  applicants  are  trying  to <\/p>\n
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\n                              23                cra134.11<\/p>\n
     take disadvantage of the similarity in the name of <\/p>\n
     respondent   No.1   with   the   name   of   wife   of   said <\/p>\n
     Sheku Chintaji. It is further submitted that, the <\/p>\n
     respondents   herein   have     also   produced   on   record <\/p>\n
     before   the   Court   of   instance   the   number   of <\/p>\n
     documents   which   have   presumptive   value   and   they <\/p>\n
     are school leaving certificates of the children at <\/p>\n
     Exhibit Nos. 38, 39 and 40, the election identity <\/p>\n
     card   issued   by   the   Government   at   Exhibit-36, <\/p>\n
     voters list at Exhibit-47 and 61 and these all are <\/p>\n
     the   documents   having   presumptive   value   which   has <\/p>\n
     not   been   rebutted   by   the   revision   applicants.\n<\/p>\n
     Learned   Counsel   further   submitted   that,   first <\/p>\n
     appellate   Court   after   making   the   scrutiny   of   the <\/p>\n
     abovesaid   oral   and   documentary   evidence   has <\/p>\n
     rightly   come   to   the   conclusion   that,   there   is   a <\/p>\n
     complicated question at issue between the parties <\/p>\n
     that  of a complicated  nature  and  can be resolved <\/p>\n
     by   a   regular   suit   only   and   cannot   be   decided <\/p>\n
     judiciously   in   a   summary   proceeding.   The   first <\/p>\n
     Appellate   Court,   therefore,   has   rightly   directed <\/p>\n
     the  parties  to  get the  dispute  settled   by filing <\/p>\n
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\n                              24                cra134.11<\/p>\n
     the regular suit in respect of their status.   The <\/p>\n
     learned   Counsel   further   submitted   that, <\/p>\n
     considering the above mentioned facts and position <\/p>\n
     of   law,   Civil   Revision   Application   may   kindly   be <\/p>\n
     rejected.\n<\/p>\n
     15.         I   have   given   due   consideration   to   the <\/p>\n
     rival submissions. Since this is a Civil Revision <\/p>\n
     Application, unless case is made out within scope <\/p>\n
     of   Section   115   of   the   Code   of   Civil   Procedure, <\/p>\n
     Civil  Revision  Application  cannot  be entertained.\n<\/p>\n
     While   exercising   revisional   jurisdiction,   this <\/p>\n
     Court has to keep in mind the scope of Section 115 <\/p>\n
     of the Code of Civil Procedure.\n<\/p>\n
     .           In   case   of  M.L.   Sethi   Vs.   Shri.   R.P.\n<\/p>\n
     Kapoor,  reported   in  A.I.R.   1972   SC   2379,  the <\/p>\n
     Supreme Court has observed that even gross errors <\/p>\n
     of facts and law cannot be gone into in revisional <\/p>\n
     jurisdiction.  Yet, in another judgment in case of <\/p>\n
     DLF   Housing   &   Constructions   Co.   (P)   Ltd.   vs. <\/p>\n
     Saroopsing   and   others,  reported   in  AIR   1971   SC <\/p>\n
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\n                             25                 cra134.11<\/p>\n
     2324, the Supreme Court held that while exercising <\/p>\n
     revisional   jurisdiction   under   Section   115,   it   is <\/p>\n
     not competent to the High Court to correct errors <\/p>\n
     of fact however gross or even errors of law unless <\/p>\n
     the  errors  have     relation  to  the jurisdiction  of <\/p>\n
     the   Court   to   try   the   dispute   itself.     Yet   in <\/p>\n
     another judgment in the case of  Managing Director <\/p>\n
     (MIG)   Hindustan   Aeronautics   Ltd.   Balanagar <\/p>\n
     Hyderabad   and   another   vs.   Ajit   Prasad   Tarway, <\/p>\n
     Manager   (Purchase   and   Stores)   Hindustan <\/p>\n
     Aeroinautics   Ltd.,   Balanagar,   Hyderabad  reported <\/p>\n
     in  AIR   1973   SC   76,   the   Honourable   Supreme   Court <\/p>\n
     held   that   revisional   Court   can   only   see   whether <\/p>\n
     the   Court   below   had   jurisdiction.     If   it   had <\/p>\n
     jurisdiction   to   entertain   the   proceedings,   the <\/p>\n
     High   Court   cannot   interfere.     In   the   case   of <\/p>\n
     Harishankar   and   others   vs.   Rao   Giridhari   Lal <\/p>\n
     Chowdhary,  reported   in  AIR   1963   SC   698,  the <\/p>\n
     Supreme   Court   has   distinguished   between   right   of <\/p>\n
     appeal and right of revision and held that, scope <\/p>\n
     of   revisional   jurisdiction   is   limited.     Yet   in <\/p>\n
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\n                              26                cra134.11<\/p>\n
     another judgment in the case of Faijulbee Hajeel & <\/p>\n
     others vs. Yadali Amir Shaikh Ansari,<\/a> reported in <\/p>\n
     1984(2)   Bom.C.R.   253,   the   Division   Bench   of   this <\/p>\n
     Court held that the decision on question of facts <\/p>\n
     is not amenable to revisional jurisdiction of the <\/p>\n
     High   Court.     In   the   judgment   in   case   of  Sanjay <\/p>\n
     Kumar   Pandey   and   others   vs.   Gulabhar   Sheikh   and <\/p>\n
     others<\/a> reported in AIR 2004 SC 3354 : [2004(5) ALL <\/p>\n
     MR   (S.C.)   542],   the   Supreme   Court   held   that   the <\/p>\n
     revisional   court   cannot   refer   to   part   of   the <\/p>\n
     evidence and reverse the findings of the fact.  In <\/p>\n
     paragraphs   4   and   5,   the   Cort   has   clarified   that <\/p>\n
     the   revisional   would   be   exercised   in   exceptional <\/p>\n
     circumstances   and   normally   the   party   should   file <\/p>\n
     independent suit to establish title.\n<\/p>\n
     16.        In   the   present   case,   the   relevant <\/p>\n
     provisions   which   are   applicable   are   Chapter   I   of <\/p>\n
     the Bombay Regulations, which reads thus :\n<\/p>\n
           “Rules   for   the   Recognition   of   Heirs,
\n           Executors and Administrators when there is  <\/p>\n
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\n                        27                cra134.11<\/p>\n
     a Competent Claimant:\n<\/p><\/blockquote>\n
     1.   Legal heir, etc.   of person deceased
\n     competent   to   represent   him   without  <\/p>\n
     recognition from court :\n<\/p>\n
          Whenever   a   person   dies   leaving  <\/p>\n
     property,   whether   movable   or   immovable,
\n     the   heir   or   executor,   or   legal
\n     administrator, may assume the management,  <\/p>\n
     or sue for the recovery, of the property,  <\/p>\n
     in   conformity   with   the   law   or   usage
\n     applicable   to   the   disposal   of   the   said  <\/p>\n
     property,   without   making   any   previous
\n     application   to   the   Court   to   be   formally
\n     recognized.\n<\/p>\n
     2.   First.     But   if   such   recognition  <\/p>\n
     requested, proclamation will be issued :\n<\/p>\n
          But   if   an   heir,   executor   or
\n     administrator   is   desirous   of   having   his
\n     right   formally   recognized   by   the   Court,
\n     for the purpose of rendering it more safe  <\/p>\n
     for persons in possession of, or indebted
\n     to,   the   estate   to   acknowledge   and   deal
\n     with him, the Judge, on application, shall
\n     issue   a   proclamation,   in   the   form
\n     contained   in   Appendix   A,   inviting   all  <\/p>\n
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\n                        28                 cra134.11<\/p>\n
     persons   who   dispute   the   right   of   the
\n     applicant   to   appear   in   the   Court   within  <\/p>\n
     one   month   from   the   date   of   the
\n     proclamation   and   enter   their   objections,  <\/p>\n
     and   declaring   that,   if   no   sufficient
\n     objection   is   offered,   the   Judge   will
\n     proceed to receive  proof of the right  of  <\/p>\n
     the   applicant,   if   satisfied,   grant   him   a
\n     certificate of heirship, executorship, or
\n     administratorship.\n<\/p>\n
     Second.  Publication of proclamation :
\n      ( Rep. Act. XII of 1873.)<\/p>\n
     3.   If   no   objection   appears,   recognition
\n     to be granted :\n<\/p>\n
          If,     at   the   expiration   of   the   time  <\/p>\n
     mentioned   in   the   proclamation   no
\n     sufficient   objection   has   been   made,   the  <\/p>\n
     Court   shall   forthwith   receive   such   proof
\n     as   may   be   offered   of   the   right   of   the
\n     person making the claim, and if satisfied,
\n     shall   grant   a   certificate   in   the   form  <\/p>\n
     contained in Appendix B, declaring him the
\n     recognized heir, executor or administrator
\n     of the deceased.<\/p>\n
\n\n\n     4.   First   :     Objection   appearing   to   the  \n\n\n\n\n                                      ::: Downloaded on - 09\/06\/2013 17:48:46 :::<\/span>\n                        29                 cra134.11\n\n<\/pre>\n
     examined and recognition given or refused
\n     accordingly :\n<\/p>\n
          If,   before   the   expiration   of   the  <\/p>\n
     time,  any objection is made to the right
\n     of   the   person   claiming   as   heir,   executor
\n     or administrator, the Judge,  on a day to  <\/p>\n
     be fixed (of which is at least eight days
\n     previous   notice   shall   be   given   to   the
\n     parties), shall summarily investigate the  <\/p>\n
     grounds of the objections on the one hand,  <\/p>\n
     and   of   the   right   claimed   on   the   other,
\n     examining such witnesses or other evidence  <\/p>\n
     as   may   be   adduced   by   the   parties,   and
\n     either   grant   or   refuse   a   certificate,   as
\n     the circumstances of the case may require.\n<\/p>\n
     Second   :   If   question   is   complicated   or  <\/p>\n
     difficult,   matter   to   be   left   for
\n     adjudication :\n<\/p>\n
          But if from the evidence adduced, it
\n     appears that the question at issue between
\n     the   parties   is   of   a   complicated   or <\/p>\n
     difficult   nature,   the   Judge   may   suspend
\n     proceedings   in   the   application   for
\n     certificate   until   the   question   has   been
\n     tried by a regular suit instituted by one
\n     of the parties.”\n<\/p>\n
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                              30                 cra134.11\n\n\n\n     .          Regulation   8   is   important   which   reads \n\n\n\n\n                                                                    \n     thus :\n\n\n\n\n                                            \n<\/pre>\n
           “8. Refusal   of   a   recognizition   no  <\/p>\n
           judgment against claim of applicant :\n<\/p>\n
                The   refusal   of   a   certificate   by   the  <\/p>\n
           Judge   shall   not   finally   determine   the
\n           rights of the person whose application is  <\/p>\n
           refused, but it shall still be competent
\n           to   him   to   institute   a   suit   for   the  <\/p>\n
           purpose of establishing his claim.”\n<\/p>\n
     17.        The   appellate   Court   has   considered <\/p>\n
     extensively   submissions   of   the   parties   and   also <\/p>\n
     has taken a note of various documents produced on <\/p>\n
     record   by   the   parties.     The   revision   applicants <\/p>\n
     herein   filed\/placed   reliance   on   the   following <\/p>\n
     documents:\n<\/p>\n
           (1)   certified   copy   of   the   death   extract   of <\/p>\n
     deceased Prakash at Exh. 27 (2) certified copy of <\/p>\n
     nomination filed by deceased Prakash in respect of <\/p>\n
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\n                              31                cra134.11<\/p>\n
     Provident   Fund   at   Exh.   28,   (3)   Photo   copy   of <\/p>\n
     letter issued by Tahasildar Kannad at Exh. 29, (4) <\/p>\n
     death   extract   of   Sheku   Chindhya   Lokhande   at   Exh.\n<\/p>\n
     30,   (5)   the   certificate   issued   by   Municipal <\/p>\n
     Council Kannad in respect of opponent No.1 at Exh.\n<\/p>\n
     31, (6) the certificate issued by Kannad Sahakari <\/p>\n
     Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32, <\/p>\n
     (7)   voters   list   for   the   year   1988   of   village <\/p>\n
     Kannad   at   Exh.   33,   (8)   death   extract   of   Prakash <\/p>\n
     Telure   at   Exh.   34,   (9)   certificate   issued   by <\/p>\n
     Kannad   Municipal   Council   in   respect   of   the <\/p>\n
     revision   applicants   at   Exh.   35,   (10)   the <\/p>\n
     invitation   card   of   Jaldan   Vidhi   in   respect   of <\/p>\n
     deceased   at   Exh.   49,   (11)   the   attested   copy   of <\/p>\n
     monthly   payment   in   respect   of   Sheku   Lokhande   at <\/p>\n
     Exh.  62 and  (12)  death  extract  of Sheku  Lokhande <\/p>\n
     at Exh. 70.\n<\/p>\n
     18.        Learned   Counsel   appearing   for   the <\/p>\n
     respondents herein placed reliance\/relied upon the <\/p>\n
     following documents in support of their case.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span><\/p>\n
                              32                cra134.11<\/p>\n
                Respondent   No.   1   Mandanbai   examined <\/p>\n
     herself   at   Exhibit-52.   She   produced   on   record <\/p>\n
     (1)   certified   copy   of   school   leaving   register   in <\/p>\n
     respect   of   opponent   No.   4   Sharda   at   Exh.   38, <\/p>\n
     opponent No.5 at Exh. 39, opponent No. 6 Vishal at <\/p>\n
     Exh.40,   (2)   election   identity   card   of   opponent <\/p>\n
     No.1 at Exh.36, (3) the election identity card of <\/p>\n
     deceased   Prakash   at   Exh.   37,   (4)   Voters   list   at <\/p>\n
     Exh.   47,   (5)   marriage   registered   certificate   of <\/p>\n
     Mandanbai with Prakash at Exh. 60, (6) Voters list <\/p>\n
     dated  01-01-2006  at Exh.  61 and (7)  affidavit  of <\/p>\n
     Anna Sakharam Bagul at Exh. 67.\n<\/p>\n
     19.        The   appellate   Court   has   considered   the <\/p>\n
     case   of   the   revision   applicants   that,   opponent <\/p>\n
     No.   2   Mandanbai   is   widow   of   Sheku   who   died   on <\/p>\n
     02-07-1989   and   further,   Mandanbai   has   taken <\/p>\n
     benefit   due   to   his   death   from   Kannad   Sakhar <\/p>\n
     Karkhana.     The   appellate   Court   observed   that, <\/p>\n
     though   such   contention   is   raised   by   the   revision <\/p>\n
     applicants,   no   any   officer   from   the   said   sugar <\/p>\n
     factory   was   examined   so   as   to   prove   that, <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                             33                 cra134.11<\/p>\n
     Mandanbai  is  widow  of one deceased  Sheku  and  she <\/p>\n
     has obtained benefit from Kannad Sakhar Karkhana.\n<\/p>\n
     Said   aspect   is   considered   in   para-12   of   the <\/p>\n
     appellate Court’s judgment.\n<\/p>\n
     20.        In   para-13   the   appellate   Court   has <\/p>\n
     observed   that,   the   respondents   herein   did   not <\/p>\n
     produce  any document  to show  that  opponent   No. 3 <\/p>\n
     Ujwala   is the daughter  of deceased  Prakash.     The <\/p>\n
     appellate   Court   in   para-14   has   considered   the <\/p>\n
     documents produced by the respondents herein i.e. <\/p>\n
     extract   of   school   register   of   Sharda,   Bharti   and <\/p>\n
     Vishal.   It is observed that, the name of Prakash <\/p>\n
     is appearing as their father.   The birth date of <\/p>\n
     Sharda, Bharti and Vishal is also recorded in the <\/p>\n
     said   paragraph.     Other   documents   in   respect   of <\/p>\n
     claim of the revision applicant No.1 that, she is <\/p>\n
     legally wedded wife of Prakash is also considered <\/p>\n
     in   the   said   paragraph.     The   appellate   Court   has <\/p>\n
     extensively   considered   the   documents   produced   by <\/p>\n
     both the sides. The appellate Court in Para-15 has <\/p>\n
     considered   the   provisions   of   Bombay   Regulation <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                              34                cra134.11<\/p>\n
     Act, 1827.\n<\/p>\n
     .          In   para-16   the   appellate   Court   has <\/p>\n
     recorded that, the lower Court without considering <\/p>\n
     the   status   of   opponent   Nos.3   and   6   has   rejected <\/p>\n
     their   prayer   though   from   the   evidence   through <\/p>\n
     cross   examination   of   witness   No.   2   on   behalf   of <\/p>\n
     the   revision   applicant   NO.1   clearly   and <\/p>\n
     conclusively proved that opponent No. 5 is son of <\/p>\n
     deceased   Prakash,   whether   they   are   legitimate, <\/p>\n
     illegitimate,   have   right   to   inherit   the   property <\/p>\n
     or have no right to inherit the property have not <\/p>\n
     been considered.\n<\/p>\n
     21.        The   appellate   Court   has   considered   the <\/p>\n
     provision of Section 16 of the Hindu Marriage Act <\/p>\n
     extensively   in   para-16   of   the   impugned   judgment <\/p>\n
     and   reached   to   the   conclusion   that,   if   the <\/p>\n
     judgment  and  order  under  challenge   is kept  as it <\/p>\n
     is,   it   certainly   will   affect   adversely   forever <\/p>\n
     against   opponent   Nos.   3   to   6.   Therefore,   the <\/p>\n
     appellate   Court   recorded   the   findingS   that, <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                             35                  cra134.11<\/p>\n
     considering   all   facts   and   circumstances   involved <\/p>\n
     in   the   case,   the   petitioners   and   opponents   have <\/p>\n
     failed   to   prove   requisites   so   as   to   record <\/p>\n
     positive  findings  on their respective  assertions.\n<\/p>\n
     Therefore, the appellate Court granted liberty to <\/p>\n
     the   parties   to   approach   before   the   regular   Court <\/p>\n
     by filing   a suit to get determine their status, <\/p>\n
     rights and interest.\n<\/p>\n
     22.<\/p>\n
                I have given anxious consideration to the <\/p>\n
     points raised by the learned Counsel appearing for <\/p>\n
     the       respective        parties.        In          revisional <\/p>\n
     jurisdiction,  unless  their is some jurisdictional <\/p>\n
     error is committed by the Court below or perverse <\/p>\n
     findings are recorded by the Court below, in that <\/p>\n
     case only interference is warranted.\n<\/p>\n
     23.          On   going   through   the   rival   contentions <\/p>\n
     and documents which are placed on record, I am of <\/p>\n
     the   view   that,   the   revision   applicant   No.1 <\/p>\n
     Shobhabai has not convincingly proved her marriage <\/p>\n
     with   Prakash.   The   reasons   recorded   by   the <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                             36                 cra134.11<\/p>\n
     appellate Court are inconsonance with the evidence <\/p>\n
     brought   on   record.     This   Court   while   exercising <\/p>\n
     revisional   jurisdiction,   should   refrain   from <\/p>\n
     discussing   any   document   or   evidence   brought   on <\/p>\n
     record   since   the   appellate   Court   has   granted <\/p>\n
     liberty   to   the   parties   to   approach   the   competent <\/p>\n
     civil   Court   to   get   their   rights   and   interest <\/p>\n
     adjudicated by leading evidence.   Any comments on <\/p>\n
     the   merits   of   the   matter   would   prejudice   the <\/p>\n
     interest of the parties.  Therefore, any extensive <\/p>\n
     comments on the documents\/evidence which is placed <\/p>\n
     on record are avoided.\n<\/p>\n
     .          From careful perusal of the pleadings by <\/p>\n
     the   parties,   documents   placed   on   record   and <\/p>\n
     evidence   scanned   by   the   appellate   Court,   it   will <\/p>\n
     have   to   be   concluded   that,   neither   Shobhabai   nor <\/p>\n
     Mandanbai   have   placed   sufficient   evidence   on <\/p>\n
     record   or   proved   documents   which   would   lead   to <\/p>\n
     only inference that their marriage with Prakash is <\/p>\n
     legal   one.   In   the   given   case,   it   may   be   also <\/p>\n
     necessary  to  find out  whose  marriage   is first  in <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                              37                  cra134.11<\/p>\n
     time with Prakash.   Therefore, unless appropriate <\/p>\n
     evidence  is led  by the  parties  and  documents   are <\/p>\n
     proved,   in   the   facts   and   circumstances   of   this <\/p>\n
     case,   it   is   not   possible   to   accept   the   claim   of <\/p>\n
     either   Shobhabai   or   Mandanbai.     In   that   view   of <\/p>\n
     the matter, in my considered opinion, the findings <\/p>\n
     recorded by the appellate Court are in consonance <\/p>\n
     with the evidence brought on record.\n<\/p>\n
     24.<\/p>\n
                It is true that, when application is made <\/p>\n
     for   heir   certificate,   in   the   first   instance   the <\/p>\n
     concerned   Court   has   to   exercise   powers   in   a <\/p>\n
     summary   manner   and   in   a   case   where   there   no <\/p>\n
     serious   dispute,   such   procedure   adopted   by   the <\/p>\n
     Court   and   issuance   of   certificate   may   be <\/p>\n
     acceptable.   However,   in   the   facts   and <\/p>\n
     circumstances of this case, when both the parties <\/p>\n
     are   seriously   canvassing   their   claim,   in   that <\/p>\n
     case,     unless   the   competent   civil   Court   records <\/p>\n
     the   findings   after   appreciation   of   evidence   and <\/p>\n
     after   giving   opportunity   to   the   parties   to   prove <\/p>\n
     the   documents,   it   is   not   possible   to   accept   the <\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                              38                cra134.11<\/p>\n
     claim of either of the parties.   In that view of <\/p>\n
     the matter, in the facts of this case it will have <\/p>\n
     to be held that, the appellate Court did reach to <\/p>\n
     the   correct   conclusion.     It   is   also   not   out   of <\/p>\n
     place   to   mention,   that   merely   placing   on   record <\/p>\n
     the marriage invitation card or certificate issued <\/p>\n
     by   Grampanchayat   or   any   other   document     without <\/p>\n
     proving   the   said,   same   is   is   not   sufficient   to <\/p>\n
     prove   the   claim.   It   is   necessary   that   such <\/p>\n
     documents are required to be proved.  In the facts <\/p>\n
     of this case, Shobhabai and Mandanbai have placed <\/p>\n
     number of documents on record and without proving <\/p>\n
     such   documents,   it   is   not   possible   to   record <\/p>\n
     definite conclusion by adopting summary procedure.\n<\/p>\n
     In that view of the matter, the view taken by the <\/p>\n
     appellate   Court   needs   no   interference   in <\/p>\n
     revisional jurisdiction.\n<\/p>\n
     .          During   course   of   arguments,   learned <\/p>\n
     Counsel   appearing   for   the   revision   applicants <\/p>\n
     submitted   that,     revision   applicant   No.2   has   got <\/p>\n
     appointment on   compassionate ground on the basis <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                              39                 cra134.11<\/p>\n
     of   certificate   already   issued   and   therefore,   in <\/p>\n
     case   Mandanbai   files   suit   and   till   such   suit   is <\/p>\n
     decided,   interest   of   revision   applicant   No.2   may <\/p>\n
     be   protected.   Of   course,   this   is   an   alternate <\/p>\n
     submission, in case revision fails.\n<\/p>\n
     25.          As   discussed   hereinabove,   I   am   not <\/p>\n
     inclined to allow this Civil Revision Application.\n<\/p>\n
     However,   since   revision   applicant   No.2   has   got <\/p>\n
     employment   on   compassionate   ground   by   producing <\/p>\n
     certificate issued on the direction of the Court, <\/p>\n
     in my opinion, ends of justice would meet if the <\/p>\n
     appointment   of   revision   applicant   No.2   is <\/p>\n
     protected for further four months.\n<\/p>\n
     26.        It is made clear that, this Court has not <\/p>\n
     expressed   any   opinion   about   who   should   approach <\/p>\n
     the   civil   Court.     Since   the   appellate   Court   has <\/p>\n
     given   liberty   to   both   the   sides,   it   is   for   the <\/p>\n
     parties to approach the competent civil Court and <\/p>\n
     get   their   rights   and   interest   adjudicated   and <\/p>\n
     decided.     However,   it   is   made   clear   that,   the <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>
\n                             40                cra134.11<\/p>\n
     appointment of revision applicant No. 2 Siddharth <\/p>\n
     should   not   be   disturbed   for   four   months   from <\/p>\n
     today.\n<\/p>\n
     27.       The   Civil   Revision   Application   stands <\/p>\n
     dismissed.     Rule   discharged.   However,   it   is   made <\/p>\n
     clear that, the appointment of revision applicant <\/p>\n
     No. 2 Siddharath is protected for four months from <\/p>\n
     today.\n<\/p>\n
     .         Any   observations   hereinabove   are   made <\/p>\n
     only   for   the   purpose   of   deciding   this   Civil <\/p>\n
     Revision Application and would not come in the way <\/p>\n
     of parties, while prosecuting the suits before the <\/p>\n
     competent Court.\n<\/p>\n
                                               sd\/-\n<\/p>\n
                                      [S.S. SHINDE, J.]
\n     sut\/SEP11                    <\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:48:46 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shobhabai vs The State Of Maharashtra on 4 October, 2011 Bench: S. S. Shinde 1 cra134.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 134 OF 2011 1. Shobhabai w\/o Prakash Telure, Age now 35 years, Occ: Household, R\/o. Bhim nagar, Kannad, Tq. Kannad, Dist. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-226023","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShobhabai vs The State Of Maharashtra on 4 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shobhabai-vs-the-state-of-maharashtra-on-4-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shobhabai vs The State Of Maharashtra on 4 October, 2011 - 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