1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.749 OF 2008 WITH CIVIL APPLICATION NO.10371 OF 2008 Maruti s/o Zattinga Kawale, R/o-Ramling Mudgadwad, Tq-Nilanga, ...APPELLANT. VERSUS 1) The Tahasildar, Tahsil Office, Nilanga. 2) Ishwar s/o Tukaram Kawale, R/o Ramling Mudgadwadi, Tq-Nilanga, At present- R/o-Devi Mandir, Koli Wada, Mulaj Road, Tq-Omerga, Dist-Osmanabad, 3) Smt. Jankibai w/o Baliram Nangale, R/o-Ramling Mudgadwadi, Tq-Nilanga, Dist-Latur, (Died, through L.Rs.) 3/1) Baliram s/o Mohan Ningale, R/o-Ramling Mudgadwadi, Tq-Nilanga, 3/2) Devidas s/o Baliram Ningale, R/o-As above. 3/3) Bhanudas s/o Baliram Ningale, R/o-As above. 3/4) Sou Chamanbai w/o Dnyanoba Nalmale, R/o-Hadoli, Tq-Nilanga. ...RESPONDENTS. 2 ... Mr.Arun Dalal Advocate with Mr. V.D. Salunke Advocate for Appellant. Mr.E.S. Murge Advocate h/f. Mr. C.J. Sabnis Patil for Resppondent Nos. 3/1 to 3/4. Respondent Nos. 1 and 2 served, absent. ... CORAM: K.K. TATED, J. DATE : 14TH JULY, 2009. PER COURT : 1. The Appellant- original plaintiff challenges the Judgment and decree dated 22nd July, 2008 passed by District Judge-I Nilanga in Regular Civil Appeal No.16 of 2008 arising out of the Judgment and decree dated 28th February, 2008 passed by Civil Judge, Senior Division, Nilanga in Regular Civil Suit No.331 of 2001. The Respondents are original defendants. 2. The plaintiff filed suit for declaration with perpetual injunction in the Court of Civil Judge, Senior Division, Nilanga in respect of land Survey No.227 Hissa No.12 admeasuring 38 R's along with other properties. The main dispute in the present litigation is in respect of Survey No.227 Hissa No.12 admeasuring 38 R's. It is 3 the contention of the plaintiff that he is owner and in possession of the disputed property for the last several years and that in family partition, he received the said property. Both the Courts below held that the suit filed by the plaintiff is not maintainable and barred by law of limitation. Both the Courts considered the other submissions made by the plaintiff in respect of the disputed suit property Survey No.227 (12) admeasuring 38 R's. It is not necessary to discuss the entire facts of the present case in this Second Appeal. The trial Court framed issue No.4 in respect of limitation and held that the suit filed by the plaintiff was barred by law of limitation. The trial Court in Para 41 and 42 discussed the issue of limitation. The plaintiff filed the present suit on 1st September, 2001. In the plaint the plaintiff stated that cause of action arose on 2nd April, 2001 when the defendant denied the request of the plaintiff not to disturb his possession in respect of the disputed suit land. The plaintiff in his plaint, at Para 8 stated: "Thus the cause of action against the defendant No.1 also has arises. The date of cause of action is the date 4 since when the defendant Nos.2 and 3 are making attempts to dispossession the plaintiff from mentioned above and the denial of the request of plaintiff and i.e. 2nd April, 2001." 3. Though the plaintiff stated that cause of action arose on 2nd April, 2001, in his evidence at Exhibit 84 he specifically admitted that he is not in possession of the disputed land for last 7 to 8 years and the entries made in 7/12 extract are also known to him. This fact itself shows that though the plaintiff was having knowledge about the entries made in 7/12 extracts since last 7 to 8 years, he filed the suit on 1st September, 2001 for declaration and possession, which is barred by limitation. The mutation entry No.1053 recorded in the name of Ishwar on the basis of Court Decree passed in Regular Civil Suit No.243 of 1991 dated 12th August, 1991, has not been challenged by Maruti - the plaintiff. This fact discloses that Maruti- the plaintiff was having knowledge that suit portion of 38 R's was not with his family and therefore plaintiff ought to have filed suit within three years challenging the Court Decree in Regular Civil Suit No.243 of 1991 as per Article 59 of the Limitation Act. 5 4. Apart from that learned counsel for Respondents have pointed out that the plaintiff in his evidence categorically made a statement that he was not concerned with 38 R's of land. Plaintiff also stated in his evidence that in a partition between family of defendant No.2, Survey No.227 was divided between Ishwar and Premnath. He further admitted in his deposition that out of Survey No.227, on his name only 83 R's of land was shown. These facts are discussed by the first appellate Court in its Judgment in Para 23, 26 and 27. When on the face of it, it is clear that the suit filed by the plaintiff was barred by limitation, it is not necessary to consider any other submissions made by learned counsel for the Appellant. Apart from the merits of the present Case, the Appellant in his evidence, categorically admitted that he was not concerned with the suit land i.e. 38 R's of land. Therefore, I do not find any substance in the present Second Appeal. The Appellant has not indicated any legal flaw in the appreciation of evidence on record by both the Courts below. There is no substantial question of law involved in the present Second Appeal and the same is dismissed 6 with no order as to the costs. 5. In view of the dismissal of the Second Appeal itself, nothing survives in Civil Application No.10371 of 2008 and the same is rejected. [K.K. TATED, J.] asb/JULY09/sa749.08