1 S.A.No.166.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 166 OF 2005 Abdul Salm Haji Abdul Gani Bagwan ... Appellant V E R S U S Janasaheb Miransaheb Bagwan and others ... Respondents WITH CIVIL APPLICATION NO. 7533 OF 2005 IN SECOND APPEAL NO. 166 OF 2005 Abdul Salm Haji Abdul Gani Bagwan ... Applicant V E R S U S Janasaheb Miransaheb Bagwan and others ... Respondents ... Mr.S.S.Thombre,Advocate for Appellant-Applicant Mr.Gulam Dastagir Shaikh,Advocate for respondent No.1 Respondent No.2 abated. Respondent no.3 dismissed as per Court's order dated 09.04.2009 ... CORAM : A.V. NIRGUDE, J. DATED : 17TH FEBRUARY, 2010 PER COURT 1] This Second Appeal is challenging the concurrent findings recorded by the Courts below. The respondents filed the suit for declaration and injunction. They claimed that the 2 S.A.No.166.05 appellant/defendant have no concerned with the suit property. On the contrary, the appellant contended that the suit property was bequeathed to his father vide a will. The appellant also contended that his father was real heir of the original owner(Testator). The appellant also contended that the suit was barred by limitation. The Courts below held concurrently that the respondents/plaintiffs were legal heir of the original owner (Testator). The Courts below also held that the will, on which the appellant placed reliance was not proved at all. The Courts below further held that the suit was filed within the limitation. 2] Mr.Thombre learned Advocate appearing for the appellant raised two points. He said that the lower appellate Court erred in putting the burden of proving that the will was valid, erroneously on the appellant. He said that the respondents/plaintiffs had already admitted the will and so there was no question of proving the will. He said the burden to prove that the will was invalid was on the respondents/plaintiffs. However, this aspect has been properly considered by the learned Judge of the first Appellate Court. He said that the respondents/plaintiffs mentioned about the will in the plaint, because they belatedly learnt about its existence. They, however, did not admit the execution of such will and specifically challenged its validity and 3 S.A.No.166.05 legality. The learned Judge rightly took note of the fact that the appellant place reliance on the will for his own benefit and thereby he became propounder of the will. In such situation, the burden to prove the will and its validity beyond reasonable doubt was squarely on the appellant/defendant. Unfortunately, the appellant did not realize this and even did not produce the will on record. 3] The second point raised by Mr. Thombre is about limitation. On this point also the appellant committed error in not adducing the evidence about the respondents/plaintiffs alleged knowledge of the will, prior to the date which they stated in the plaint. This aspect was also properly discussed by the Courts below. In view of this, there is no substantial question of law involved in this appeal. The appeal stands dismissed. Consequently, the Civil Application No. 7533 of 2005 for stay stands dismissed. SD/- (A.V. NIRGUDE, J.) MTK/ ok