THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1093 OF 2010 Date: 19-11-2010 Between Bailapudi Kanakadurga Devi …..Appellant And Kolla Babu Rao and four others …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1093 OF 2010 ORDER: The unsuccessful plaintiff in the Courts below filed this second appeal against the judgment and decree dated 14-05-2010 in A.S No. 412 of 2005 of the Family Court-cum-IV Additional District and Sessions Judge, Vijayawada whereby the appeal filed by her has been dismissed confirming the judgment and decree dated 31-10- 1997 in O.S No. 429 of 1993 passed by the learned Principal District Munsif, Vijayawada. The appellant – plaintiff filed the said suit against the respondents – defendants restraining defendants 1 and 2 from collecting rents from defendants 3 to 5 who are the tenants of the schedule premises which belongs to her. She pleaded that originally the suit schedule property belonged to one Pydaiah who executed a settlement deed in favour of his wife Yerrayamma for her life and after her death to his daughters Sanyasamma and Kanakamma. After the death of Pydaiah, his daughters and wife mortgaged the property which resulted in filing of O.S No. 24 of 1973 on the file of the Sub Court, Vijayawada. Kanakamma predeceased her mother leaving behind her husband the first defendant and her son the second defendant. Husband of Sanyasamma is the brother of the mother of the plaintiff. The father of the plaintiff and Pydaiah are brothers. Sanyasamma’s husband died and later, she filed O.S No. 66 of 1975 for partition and possession of her share against the first defendant. Finally, the said suit was decreed and she was given southern side portion in the entire building property and the first defendant was directed to pay a compensation of Rs.5,000/- and he was also directed to pay Rs.12,003/- towards mortgage debt discharged by her by borrowing the amount from the mother of the plaintiff. Sanyasamma was looked after by the plaintiff and her mother for a long time till her death and she executed a Will in favour of the plaintiff bequeathing the plaint schedule property. Defendants 1 and 2 are threatening defendants 3 to 5 that they should pay rents to them but not to the plaintiff. Hence, the suit. Defendants 1 and 2 who contested the suit denied the execution of the Will. The partition suit was closed after passing of final decree and when Sanyasamma tried to execute the decree and filed E.P, the same was dismissed. The revision preferred by her against dismissal of the E.P was also dismissed and the second defendant is the person who inherited the property and defendants 3 to 5 having entered into agreement of lease with him are paying rents to him and there is no cause of action. To substantiate the claim, the appellant – plaintiff examined herself as PW 1 besides examining three more witnesses as PWs 2 to 4 and got marked Exs.A-1 to A-12. On behalf of the respondents - defendants, defendants 1 and 2 examined themselves as DWs 1 and 2 and also examined DW 3 and got marked Exs.B-1 to B-3. On a consideration of the oral and documentary evidence available on record, the trial Court dismissed the suit holding that since defendants 3 to 5 denied the alleged cause of action that they were threatened by defendants 1 and 2 which is the basis to file the suit to claim permanent injunction, the appellant – plaintiff has no cause of action. Aggrieved by the same, the appellant – plaintiff preferred an appeal which was also dismissed. Hence the second appeal. Heard the learned counsel for the appellant. Ex.A-5 is the Will dated 05-09-1992 said to have been executed by late Sanyasamma which is not a registered one. The appellant has not established as to why late Sanyasamma executed Will in her favour. The appellant has also not established as to how she came into possession in pursuance of Ex.A-5 Will. Hence, it is not a case that Sanyasamma was in physical possession of the property. When the EP filed by her seeking possession has been dismissed, it is presumed that she is not in possession of the property. But according to the appellant, she took possession of the property and the tenants are residing through her, but defendants 3 to 5 have not supported her case and stated that they never paid rents to her. Though there is no suggestion either by defendants 1 and 2 or by defendants 3 to 5 to the appellant that Ex.A-12 rent receipts are not true and correct and defendants 3 to 5 did not pay rents under those receipts to her, she cannot depend upon the weakness of the defendants to obtain a decree. She has to establish her lawful possession over the property. Further, since defendants 3 to 5 denied the alleged cause of action that they were threatened by defendants 1 and 2 which is the basis for the plaintiff to file the suit, she has no cause of action. Unless the plaintiff files a suit for declaration of title under Ex.A-5 Will, she is not entitled to injunction simplicitor without proving her possession. In view of the same, the concurrent findings recorded by both the Courts below do not give rise to any question of law much less substantial question of law to entertain the second appeal. It is accordingly dismissed. No order as to costs. A. GOPAL REDDY, J 19-11-2010 ks