( 1 ) THIS is the plaintiffs second appeal against the judgment and decree passed by III Additional Judge to the court of District Judge, Shajapuf in civil appeal No. 13-A 1982 dated 5-7-1989 affirming the judgment and decree passed by civil Judge, Class-II, Susner in civil suit No. 134-A 1979 dated 10-12-1981 dismissing the suit of the plaintiffs. ( 2 ) THE appeal was admitted vide order dated 9-3-1990 on following substantial questions of law :-1 ). "that, the learned Judge has erred in not approaching the question about the fact of marriage between Sitaram and Sardarbai from the correct standpoint, erred in not drawing legal inference; and presumptions, arising from proved facts. "2 ). "it be held that Sitaram and Sardarbai was validly married what is the effect on paternity of the plaintiff-appellant?"3 ). "whether the procedure of examining defendant as Court witness adopted by the trial Court is erroneous and causes prejudice to the appellant?" ( 3 ) PLAINTIFFS filed civil suit mentioning that plaintiffs and defendants No. 3, 4 and 5 are real brothers and defendant No. 1 is their father and defendant No. 6 is the mother of defendant Nos. 1 and 2 and defendant No. 7 is the mother of plaintiffs and defendants No. 3, 4 and 5. It is submitted by the plaintiff that his land area 4. 179 hectare situated at village-Papli is the joint family property. Although, it is in the name of defendant No. 1 who is the father. Similarly the respondent No. 2 had half share in an another land of area 5. 914 hectare situated in same village mentioned in Para 3 of the plaint and also other lands mentioned in para 4 area 6. 312 hectare and Para 5 area 3. 10 hectare and 1. 829 hectare. In all these lands the defendant No. 1 had half share of the property. These are the ancestral properties. The plaintiffs and defendants are a member of undivided Hindu family property and hence, they are the owners as coparcener of the property. ( 4 ) BECAUSE the defendant No. 1 was old person and there are quarrel between his both the wives. Hence, the defendant No. 2 filed a suit against defendants No. 1, 8 and 9 on 23-12-1977 and after a compromise he obtained a decree in that suit. ( 4 ) BECAUSE the defendant No. 1 was old person and there are quarrel between his both the wives. Hence, the defendant No. 2 filed a suit against defendants No. 1, 8 and 9 on 23-12-1977 and after a compromise he obtained a decree in that suit. The name of defendants No. 3, 4 and 5 and the plaintiff was not mentioned and decree was obtained on 9-8-1978 in case No. 2-A/1978. It has further been pleaded that the defendants No. 3, 4 and 5 of the family were in possession of the 1/4 th part of the property mentioned in the Paras 3, 4 and 5 of the plaint for last 12 years. It has submitted that the defendants No. 3, 4 and 5 and other defendants are brothers and are entitled to same share in the property. They are entitled for a partition and possession. The decree passed in civil suit No. 2-A/1978 is not binding on the appellants. They prayed a partition in the suit property mentioned in the plaint and also possession and declaration that the judgment and decree passed in civil suit No. 2-A/1978 are not binding on them. ( 5 ) THE defendants No. 1,2 and 6 filed the written statement denied the claim of the plaintiffs. It has specifically been denied by the defendants that the respondents No. 3, 4 and 5 are their brothers and their property is joint Hindu family property. It has further been mentioned if it has been held that the defendants No. 3, 4 and 5 and plaintiffs are the sons of the defendant No. 1, hence, they are illegal and they are not entitled any share in the property of the defendant No. 1. It has been pleaded that defendants No. 8 and 9 have gifted the land in favour of defendant No. 2 and he became the owner of the said land and the land is not the ancestral one. ( 6 ) THE learned trial Court held that the plaintiffs and defendants No. 3, 4 and 5 are the real brothers but the plaintiffs and other defendants are not the members of undivided Hindu family property. Neither property mentioned in Paras 2, 3, 4 and 5 of the plaint is the ancestral property of plaintiff and defendant Nos. 2 to 5 nor they are owners of the said property. Neither property mentioned in Paras 2, 3, 4 and 5 of the plaint is the ancestral property of plaintiff and defendant Nos. 2 to 5 nor they are owners of the said property. The trial Court considered the oral and documentary evidence on record and came to the conclusion that sitaram had two wives Murlibai and sardarbal. Murlibai was the married wife of sitaram and defendant Nos. 1 and 2 are the sons of Murlibai. It has been further held by the trial Court that the Sardarbai was residing with Sitaram for the last 40 to 45 years but it has been held that she was residing as a keep and plaintiffs No. 1 and 2 and defendants No. 3, 4 and 5 cannot be said to be valid sons of Sitaram. It has further been held that before residing with the plaintiff Sardarbai was married to a person at Diwankhedi and at the time of filing of the suit Sitaram deposed that he had seen the husband of Sardarbai 35 to 40 years before. After that no body has seen him. The learned trial Court further held that the facts with regard to marriage of Sardarbai is related to 40 to 45 years back. Hence, provisions of Hindu Marriage Act was not applicable because plaintiff has failed to prove that the prior husband of Sardarbai was dead, hence it could not be held that the sardarbai was the valid wife of the defendant No. 1 and on this basis it can also not be held that the plaintiff and defendants No. 3, 4 and 5 are the sons of defendant No. 1. On all these findings the trial Court dismissed the suit, against that the plaintiff filed an appeal. The appellate Court too dismissed the appeal by holding that Sardarbai was earlier married to man at Diwankhedi and who was Rajput by caste. After examination of the evidence of witnesses the appeal Court held that it has not been proved that there was a marriage of Sardarbai. Although, in the voter-list the name of husband of Sardarbai was mentioned as Sitaram and the appellate Court has held that sardarbai was living with the defendant No. 1 as his keep. Hence, presumption of valid marriage cannot be drawn against him. Although, in the voter-list the name of husband of Sardarbai was mentioned as Sitaram and the appellate Court has held that sardarbai was living with the defendant No. 1 as his keep. Hence, presumption of valid marriage cannot be drawn against him. On the basis of above findings the appellate court has held that plaintiffs and defendants are not the members of joint Hindu family and dismissed the appeal. ( 7 ) THE learned counsel for the appellants has submitted that both the Courts have committed an error of law in appreciating the evidence on record and left out important piece of evidence. The learned counsel further submitted that it is an admitted position that the incident with regard to marriage of Sardarbai was prior to enforcement of Hindu Marriage Act, 1956 and at that time a second marriage was not impermissible. This has also been held by the trial Court and has totally been ignored by the appellate court. In this aspect it was incumbent upon the Court to examine the evidence. Learned counsel for the appellants relied on decisions of this Court reported in Mahila mathuro Bai v. Ramwati, AIR 1990 MP 276 and Badri Prasad v. Dy. Director of consolidation, AIR 1978 SC 1557 . These cases would be discussed later-on. The learned counsel for respondents submitted that both the Courts have held that Sardarbai was not the valid married wife of the defendant No. 1 and appellants and defendants No. 3, 4 and 5 were not the sons of the defendant no. 1. These are the concurrent findings of fact and c'annot be interfered with in a second appeal. ( 8 ) BEFORE appreciating the arguments of learned counsel for the appellants and respondents, it is necessary to consider some evidence and aspect of the case. It is an admitted position that Sardarbai was living with the defendant No. 1 as said by the witnesses for last 40 to 45 years and the suit was filed in the year of 1979. Hence, the provisions of Hindu Marriage Act, 1956 were not applicable as rightly held by learned trial court. On those periods there was no prohibition to have a second wife. Hence, the provisions of Hindu Marriage Act, 1956 were not applicable as rightly held by learned trial court. On those periods there was no prohibition to have a second wife. But as per principles of Hindu Law by Mulla with regard to marriage, a woman cannot marry another man while her husband is alive, which is quoted herein as under :-431 :- "only one husband at a time - A woman cannot many another man while her husband is alive, except where her marriage has been dissolved by divorce. " ( 9 ) THE plain tiff himself has d. eposed that she married at Diwankhedi, thereafter 40-45 years before she came to Papli and she had been residing along with Sitaram. All the brothers and sisters were born at Papli in nehra of Sitaram. Pannalal (PW 2) has also deposed that for last 40 years Sardarbai and Sitraram were living as husband and wife together and another witness Ghasiram (PW 3) who was aged 75 years also deposed that Sitaram and Sardarbai were living as husband and wife for the last 40-45 years and from the wed-lock of Sardarbai the plaintiffs No. 1 and 2 and defendants No. 3, 4 and 5 were born. Similarly Bapulal (PW 4)deposed that from the beginning he had seen Sitaram and Sardarbai as husband and wife. The evidence of defendant No. 1 mangilal is also important. He deposed in his cross-examination that he had no knowledge that her father and Sardarbai were living together as husband and wife before his birth. He has not categorically denied the fact that they have not been living together but had admitted that the plaintiffs and other defendants were living with him for the last 20 to 25 years. He further said that karansingh and his another brother were born from Sardarbai and Sitaram. There is no specific denial. He also admitted that plaintiffs were in possession of certain portion of the land mentioned in the plaint with his brother. He further told that at the time of deposition the age of Sardarbai was 60 to 65 years and she was residing in the same village along with his father. Sardarbai was also examined and deposed that Sitaram was her husband and she was married with him. The next witness Sitaram has also admitted that Sardarbai had been living with him. Sardarbai was also examined and deposed that Sitaram was her husband and she was married with him. The next witness Sitaram has also admitted that Sardarbai had been living with him. He further deposed that for the last 35 to 40 years he had not seen the husband of sardarbai. ( 10 ) IT is clear from the evidence that all witnesses have deposed that Sardarbai was living with the defendant No. 1 Sitaram for the last 40 years. Sitaram himself admitted that he had not seen the husband of sardarbai for the last 35 to 40 years. on the basis of above evidence it can safely be presumed that husband of Sardarbai was dead. The provisions of Sections 107 and 108 of the "evidence Act which reads as under :-S. 107 :-"when the question i's whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. "s. 108 :-"provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for Sevfen years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. " ( 11 ) IN the above circumstance and principle of law Sardarbai can be said to be a legally married woman. In the facts that plaintiffs and defendants witnesses have specifically admitted that Sardarbai had been living with the defendant No. 1 Sitaram for the last 40-45 years and in such circumstances the presumption of valid marriage can be. drawn as held and argued by the learned Counsel for the appellants on the basis of the judgment reported in Badri prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557 , the relevant para quoted herein as under :-:"a strong presumption arises in favour of ;wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legitimacy and frowns upon bastardy. Director of Consolidation, AIR 1978 SC 1557 , the relevant para quoted herein as under :-:"a strong presumption arises in favour of ;wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. " ( 12 ) THE same principle has reiterated by a single Judge of this Hon'ble Court in the judgment reported in Mahila Mathuro Bai v. Ramwati, AIR 1990 MP 276 . ( 13 ) THE Hon'ble Supreme Court in Gokul chand v. Parvin Kumari, AIR 1952 SC 231 has held as under with regard to continuous cohabitation of man and woman as husband and wife and presumption of marriage:-"continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number ofyears may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them. " ( 14 ) ON the basis of above principles of law, I hold that there is a presumption with regard to marriage between Sardarbai and defendant No. 1 Sitaram. The contesting defendants have failed to rebut the said presumption contrary. They themselves admitted that they were living together for the last 40 years. In such circumstance the factum of marriage can specifically been presumed. The Hon'ble Supreme Court in R. V. E. Venkatachala Gounder v. Arulmigu viswesaraswami and V. P. Temple, (2003) 8 scc 752 : AIR 2003 SC 4548 has held as under :-"whether a civil or a criminal case, the anvil for testing of 'proved', 'dis-proved' and 'not-proved', as defined in Section 3 of the indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rules, which makes the differences. In a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged also as to amount to proof of the plaintiffs title. " ( 15 ) THE above principle has been applied by the Hon'ble Court with regard to title on the basis of possession. The same principle can be applied with regard to marriage on the basis of long cohabitation and in the present case as per the law laid down by hon'ble Supreme Court that contesting defendant to prove or rebut that Sardarbai and defendant No. 1 Sitaram was not the husband and wife and both the Courts below have committed an error of law ignoring the above aspect of law and also the Courts have failed to see the provisions of Sections 107 and 108 of the Evidence Act and the fact that the incidence and circumstance were prior to enforcement of Hindu Marriage Act, 1956. ( 16 ) THE Hon'ble Supreme Court in (2002)6 SCC 404 : AIR 2002 SC 2849 had held as under with regard to the powers of the High court under Section 100 of the Code of Civil procedure :-"civil Procedure Code, 1908, Section 100- Second appeal interference with judgment of final Court of fact - When justified -Reiterated that if such judgment is based on misinterpretation of documentary evidence or consideration of inadmissible evidence or ignoring material evidence, or on a finding of fact has ignored admissions or concessions made by witnesses or parties, held High Court can interfere in second appeal. " ( 17 ) THE above principle of law negatived the arguments advanced by the learned counsel for respondents that the findings of fact cannot be re-opened in a second appeal, on the basis of the above facts and evidence on record of the case and the documentary evidence and the voter-list produced by the plaintiffs mentioning Sardarbai as wife of Sitaram, I hold that Sardarbai was the validly married wife of Sitaram and the learned Judges committed an error in not drawing legal inference and presumption with regard to marriage from proved facts. The plaintiff and other defendants were the sons of Sitaram and the trial Court has not passed the judgment on the basis of above findings. I answer the substantial question of law No. 1 and 2 accordingly in favour of the plaintiffs/appellants. There is no need to answer the substantial question of law no. 3. ( 18 ) ON the basis of above findings and on analyzing the law, appeal of the appellants is allowed. Judgment and decree passed by both the courts below are setaside. Suit filed by the plaintiffs are hereby decreed and decree be granted in favour of the plaintiffs as prayed for. A decree be drawn-up accordingly. In the peculiar facts and circumstances of the case, the plaintiffs and defendants are directed to bear their own costs of litigation throughout. Appeal allowed. .