Bhakuadas & Ors.
Vs. Nankibai & ANR. [2009] INSC 549 (18 March 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 7102 OF 2001 Bhakuadas & Ors. ...Appellant(s)
Versus Nankibai & Anr. ...Respondent(s) O R D E R Heard learned counsel for
the parties.
The Trial Court
decreed the suit for declaration of title and recovery of possession filed by
the plaintiff-appellants after recording a categorical finding that Mohandas
had not married Nankibai (respondent herein) and as such she cannot have any
right in the joint property. The Lower Appellate Court agreed with the
aforesaid conclusions of the Trial Court and dismissed the appeal preferred by
Nankibai. However, the High Court allowed the Second Appeal and set aside the
judgments and decrees of the two courts by observing that they lost the sight
of the fact that Nankibai was living with Mohandas and this was sufficient to
show that she was married to him.
We have been taken
through the judgments of the Courts below and the High Court. In our view, the
finding of fact recorded by the Trial Court, which was confirmed by the Lower
Appellate Court that marriage of Nankibai with Mohandas has not been proved,
was based on a correct appreciation of the evidence produced by the parties and
the High Court was ....2/- -2- not justified in upsetting the said finding in
Second Appeal without even coming to the conclusion that the concurrent finding
of fact recorded by the courts below was perverse. We are further of the view
that High Court's finding on the issue of marriage of Nankibai with Mohandas is
based on surmises. The mere fact that Nankibai was living with Mohandas,
cannot, by any stretch of imagination, lead to a conclusion that they were
married.
Accordingly, the
appeal is allowed, impugned order rendered by the High Court is set aside and
the same passed by the Lower Appellate Court is restored.
No costs.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
New
Delhi,
March
18, 2009.
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