1 (SA 359 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.359 OF 2010 Khashaba Bapurao Patil (since deceased through heirs) Smt.Akkabai Khashaba Patil & Ors. …Appellants (Org.Defendants) Vs. Mahadeo @ Baburao Savala Patil and Anr. ...Respondents (Org. Plaintiffs) ----- Mr. Pratap Patil for Appellants. Mr.Rananwar D.D. For Respondent Nos.1 and 2 ----- CORAM: V.M. KANADE, J. DATED: 18th November, 2011 P.C. 1. The Second Appeal is taken up for hearing with the consent of parties. 2. Firstly, it is submitted that the impugned order suffers from the infirmity of non-consideration of relevant evidence. It is submitted that both the Courts below have relied on the Gaonthan Map of the year 1971 showing existence of public road between Plot Nos.47 and 48 and have ignored the City Survey Map prepared in the year 2003 on the basis of survey conducted in the year 2001. It is submitted that, therefore, the City Survey 2 (SA 359 of 2010) Map would prevail as the Gaothan Map. It was submitted that the Appellants are in possession of the suit viz. Plot being CTS No.518 from 1976 and the suit filed in 2003 and, therefore, it is barred by limitation. 3. So far as the first submission is concerned, from the judgment of the Lower Appellate Court can be seen that the Court has taken into consideration the evidence of Defendant no.8 i.e. Cadastral Surveyor at Exhibit 84 and also the evidence of Jaywant Krishna Patil who was the owner of Plot No.36 which is adjacent to the disputed plot. The Lower Appellate Court also has taken into consideration the evidence of Vilas Chorge, who had the photographs of the disputed property and those photographs were proved and brought on record which show that the Gaothan was dumped and the said place place was used for dumping waste. 4. In view of this, merely because the city survey which was conducted in 2001 is contrary to the Gaothan Map that alone would not make any difference since both the Courts below have taken into consideration the evidence which was brought on record by the Plaintiffs to prove that between Plot Nos 47 and 48 there is a public road and, therefore, there is no merit in the submissions made by the learned counsel for the Appellants. So far as the submission on limitation is concerned, the First 3 (SA 359 of 2010) Appellate Court has taken into consideration the said submission of limitation. The Lower Appellate Court has after going through the evidence on record has observed that the averments in the written statement are very vague and the Defendants have not established how the suit is barred by limitation. It is a settled position in law that the issue of limitation is mixed question of fact and law. There is a concurrent finding of both the Courts below that the suit is not barred by limitation and, therefore, it will not be open for this Court under section 100 of the CPC to re-appreciate the evidence and substitute the finding of the Lower Courts. Hence, the Second Appeal, therefore, is dismissed. (V.M. KANADE J.)