HON’BLE SRI JUSTICE B. PRAKASH RAO S.A.No. 424 of 1992 Date: 15-04-2011 Between: Saripalli Mariyamma and others ……. Appellants and Saripilli Samsundar and others ……. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO S.A.No. 424 of 1992 JUDGMENT: This Appeal, under Section 100 of the C.P.C, is at the instance of the deceased defendant No.1, who is now represented by her legal representatives, aggrieved against the judgment and decree, dated 18- 06-1992 in A.S.No.81 of 1987 on the file of the III Additional District Judge, Visakhapatnam, dismissing the appeal at her instance filed under Section 96 of C.P.C. confirming the judgment and decree, dated 06-05-1987 in O.S.No.452 of 1973 on the file of the Principal District Munsif, Visakhapatnam. Heard Sri K. V. Subrahmanya Narsu, learned counsel appearing for the appellants and Sri V. Parabrahma Sastry, learned counsel appearing for the respondents. Briefly the account of the case is that the respondents 1 to 3 herein as plaintiffs filed the suit against the defendants-appellants herein, inter alia, seeking declaration of title in respect of the suit schedule properties and for consequential relief of possession after evicting the defendants therefrom and for past mesne profits against the defendants apart from future mesne profits as well. The trial Court, after contest by the defendants, decreed the suit declaring that the plaintiffs have title to the suit schedule properties and directed the defendants to vacate the suit premises and to put the plaintiffs in possession and further ordered for payment of Rs.70/- per month towards past mesne profits and Rs.75/- per month towards future mesne profits. As against the same, the appellants carried the matter in appeal wherein the plaintiffs have also filed cross objections. The lower appellate Court, after taking into consideration the respective submissions made across the bar and after going through the entire record, did not find favour and dismissed both the appeal and cross objections confirming the judgment and decree of the trial Court. Aggrieved by the dismissal of the appeal, the first defendant preferred this second appeal. When the matter came up for admission, a learned single Judge of this Court admitted the appeal as per the orders, dated 13-10-1992 on the substantial questions of law mentioned in ground No.12, which reads as follows: a) Whether the judgments of the Court below are not erroneous in law and liable to be dismissed with regard to the truth, validity and binding nature of Ex.A-12? b) In the absence of examination of any of the attestors to Ex.A-12, whether it can be said that the will-Ex.A-12 is validly proved having regard to the mandatory provisions of Section 68 of the Evidence Act? Coming to the case as put forth from both sides, according to the plaintiffs, they are the legatees under the registered sale deed, dated 26-05-1969 executed by Smt. Saripilli Sundaramma, whereunder the plaintiffs 2 and 3 were given life interest with reversion to the first plaintiff. Smt. Sundaramma died on 14-08-1972 at Visakhapatnam. Later her son Bhaskara Rao was acting as guardian and manager for the properties bequeathed to the aforesaid minors. Under the said Will, she revoked a former Will, dated 24-01-1966. Late Sundaramma was working as mid-wife in the Visakhapatnam Municipality and she was living as concubine of one late Saripalli Samuel, who was working as Inspector in the Port at Visakhapatnam, and adopted his surname. The property was being enjoyed, but however remained in possession of the said Saripalli Samuel. Therefore, a notice was issued by the father of the plaintiffs to the said Samuel to vacate the schedule building, to which Samuel sent a reply on 06-06-1972. The said Samuel died on 14-12-1972. Later there has been trespass by the defendants and hence a notice was sent on 17- 12-1973 to vacate the schedule building and to deliver vacant possession, which was not acceded. Hence, the suit. After appearance, the second defendant did not file any written statement, but agreed to vacate the premises if time is given. The first defendant filed written statement denying the entire allegations as contained in the plaint stating that Smt. Sundaramma was living only as wife of Samuel till her death and the alleged Will is not true and correct and not executed by her in a sound and disposing state of mind and the same is not binding. Further as per the written document, dated 16-02-1972, the right of the Samuel was accepted. The plaintiffs cannot claim any succession to the property as per the Personal Law. Hence, the suit is liable to be dismissed. With these and other allegations, after framing of the issues by the trial Court on various disputed aspects, the parties went into trial during which the plaintiffs examined PWs.1 to 4 and marked Exs.A-1 to A-15, whereas the defendants examined DWs.1 to 5 and marked Exs.B-1 to B-3. On appraisal thereof, the trial Court upheld the claim of the plaintiffs and especially holding that the Will, which is marked as Ex.A-12, is true and correct and also awarded mesne profits. On appeal, the lower appellate Court once again, after framing the points for consideration in regard to the alleged purchase being binami or not and the genuineness of Ex.A-12, Will, and also the plea of adverse possession, did not agree with the contentions urged by the appellants and dismissed the appeal reiterating the genuineness of the Will as true and correct. Hence, this Appeal. As can be seen from the grounds as sought to be pursued and pressed into service on behalf of the appellants and also the ground No.12 as stated to be containing the substantial questions of law, prima facie, it is to be seen that both the grounds do touch upon and involve a factual aspect and a finding thereon in regard to Ex.A-12 alone, the alleged registered Will claimed by the plaintiffs. As can be seen from the reasoning given on issue No.4 by the trial Court and also on point No.3 as framed by the lower appellate Court, it is a categorical finding of fact that there is due execution and there is no reason much less any circumstance to doubt its genuineness or otherwise effect on the said document. Since these twin aspects directly impinge upon a fact of finding thereon, which normally would not form part of any consideration in an appeal under Section 100 of C.P.C., as of fact, no question of law much less substantial one arises. However, the learned counsel appearing for the appellants sought to raise only one feeble contention on behalf of the appellants that there is no compliance of the provisions under Sections 68 and 69 of the Evidence Act in regard to the proof and establishment of the execution of the Will on behalf of the plaintiffs. These submissions, which have been made across the bar by both sides, virtually made this Court once again to peruse the entire evidence adduced by both sides and also the very document i.e., Ex.A-12. On consideration thereof, it is to be seen that in proof of the said document apart from the plaintiffs themselves coming into the witness box, they have examined PW-1, who is one of the attestors. His evidence has remained unshattered and there is nothing suggested to doubt its veracity. As far as the other attestor is concerned, it is reiterated by the plaintiffs in the deposition and also supported by PW-1 that he is no more alive and dead. Neither to the plaintiffs nor to the said attestor there is any suggestion given on behalf of the appellants that the other attestor is alive or available. Nor it was a case, even in any of the pleadings at any stage of the proceedings, to show that the other attestor was alive. These aspects were also taken into consideration by the trail Court as well as the lower appellate Court and held that there is sufficient proof and also due compliance in regard to the requirement under both the aforesaid provisions. Having regard to the aforesaid reasons and nothing much has been brought to the notice of this Court to come to any different conclusion in regard to the findings of both the Courts below, no question of law arises much less substantial one warranting any interference by this Court. Hence, there are no merits in the appeal. The Second Appeal is, accordingly, dismissed. No order as to costs. _________________ B. PRAKASH RAO, J Date: 15-04-2011 YCR