1 (SA 541.2008) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.541 OF 2008 Chhabu Rambhau Darekar (Kumbhar) .... Appellant. V/s Baban Rambhau Darekar (Kumbhar) since deceased through legal representatives 1. Shyam Baban Darekar & Ors. ..... Respondents. Mr. Pankaj D. Purvey i/b Mr. J.B. Kocheta for the Appellant. Mr. Kuldeep Patil for Respondent Nos. 1 to 7. CORAM: V. M. KANADE, J. DATE : 4th August, 2011 P.C.:- 1. Heard the learned Counsel for the Appellant and the learned counsel for the Respondent. 2 (SA 541.2008) 2. Appellant is the original Defendant and the Respondent is the original Plaintiff. For the sake of convenience the parties shall be referred to as “Plaintiff” and “Defendant”. 3. Plaintiff filed a suit for declaration that he be declared as owner of the suit property and also for mandatory injunction and direction to the Defendant to remove the construction made over the suit property being Gat No.79 situated at village Rangangaon Ganpati. The case of the Plaintiff is that the suit property is the ancestral property of the Plaintiff and his cousin Bala Dasharath Kumbhar. A suit was filed by the Plaintiff being Regular Civil Suit No.100 of 1996 against the said Bala Dasharath Kumbhar and the consent terms were filed in the said suit and, by virtue of the said consent terms, Plaintiff was declared as owner of the entire suit property. According to Plaintiff, Defendant was not concerned with the suit property. However, on 18/11/1986, Defendant filed a false affidavit before the CTS Authority informing the concerned Authority that the Plaintiff had died and that he was the brother of the Plaintiff and Mutation Entry was, therefore, made in his name in view of the said statement made by him. Accordingly, his name was entered in the grampanchayat record as well as in CTS record. According to Plaintiff, by taking advantage of the said Mutation Entry, he encroached upon the suit property and constructed tin shed of 25’ X 15’ on the said area. Defendant filed his Written Statement and stated that his 3 (SA 541.2008) brother Bhau Baban @ Rambhau Darekar (Kumbhar) died on 2/12/1992 and since his brother had died issue-less, he had become the owner of the entire property. Trial Court decreed the suit and the appeal which was filed by the Defendant was also dismissed. 4. The learned Counsel appearing on behalf of the Appellant/Defendant submitted that the suit itself is barred by limitation since no cause of action had arisen three years from the date on which Mutation Entry was made, whereas the suit was filed after five years after the said Mutation Entry was made in the name of Defendant. He submitted that both the courts below have not taken this fact into consideration. Secondly, he submitted that the Defendant was not a party to the suit which was filed by the Plaintiff against his brother and, therefore, the consent terms were not binding on him. He, therefore, submitted that this fact also was not taken into consideration by both the courts below. 5. On the other hand, the learned Counsel appearing on behalf of the Plaintiff invited my attention to the findings recorded by both the Courts in which the Courts had observed that Defendant had failed to prove that he was the owner of the suit property and after appreciating the evidence on record had accepted the case of the Plaintiff. He submitted that, therefore, no substantial question of law 4 (SA 541.2008) is raised in the present second appeal. 6. There is much substance in the submission made by the learned Counsel appearing on behalf of the original Plaintiff. Both the courts have held that the suit was filed within limitation and have accepted the contention of the Plaintiff that the Defendant had fraudulently entered his name in the city survey record and grampanchayat record by falsely showing that the Plaintiff had died and he was his brother. Secondly, a suit was filed in 1996 for partition and soon after the decree was passed and the Plaintiff was declared to be the owner of the property, present suit was filed in 1996. The contention of the Defendant that the Plaintiff was aware that Defendant had constructed tin shed in 1991 and, therefore, he ought to have filed the suit within three years from the date of knowledge, therefore, cannot be accepted since only after rights of the Plaintiff were crystalized, he could have filed the present suit. So far as the other contention of the Defendant that the consent terms are not binding on him also is without any substance since the burden of establishing that he was the owner of the property was squarely on the Defendant and no documentary evidence was produced in support of the said contention except the Mutation Entry in the CTS record. 7. Both the courts below have given cogent reasons for rejecting the contention of the Defendant. No substantial 5 (SA 541.2008) question of law is raised in this second appeal. Second appeal is, therefore, dismissed. Two months’ time, however, is granted to the Defendant to remove his construction from the suit property. 8. Since Second Appeal itself is disposed of, Civil Application No.171 of 2006 does not survive and the same is accordingly disposed of. (V.M. KANADE, J.)