HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.5216 OF 2009 DATE:11-02-2010 BETWEEN: Gongada Sreenivasa Rao …Petitioner AND Ketha Veeramma & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.5216 OF 2009 ORDER: This revision under Article 227 of Constitution of India is filed by the third defendant assailing the correctness of the order, dated 16.09.2009 passed by the I Additional District Judge, East Godavari District at Rajahmundry whereby I.A.No.1884 of 2009 in A.S.No.44 of 2007 filed by the petitioner herein to permit him to adduce additional evidence by way of examining the attestor of Ex.B.3-Will was dismissed. Originally, the suit was instituted by the two daughters of late Laveti Buli Venkanna against the defendants 1 and 2 for declaration that they are the absolute owners of the plaint schedule properties, for ejectment of the defendants and for mesne profits and after the second plaintiff was transposed as fourth defendant in the suit, a relief for partition is also claimed for partition of the plaint schedule properties into two equal shares. The plaintiffs based their claim on Ex.A.1-gift deed, dated 27.4.1973 said to be executed by Buli Venkanna in respect of the plaint schedule properties, whereas, the defendants 1 and 2 denied the very execution of the said gift deed in favour of the plaintiffs 1 and 2 and that it was not acted upon, and they pleaded that a revocation deed, dated 14.3.1988 was executed and also claimed that the said Buli Venkanna executed a registered Will, dated 16.3.1988 in favour of the first defendant. Subsequent to filing of the suit, the petitioner herein claiming to be the subsequent purchaser, got impleded as per the orders, dated 31.1.2000 in I.A.No.1369 of 1999. The trial Court after framing necessary issues, while upholding the execution of Ex.A.1 gift deed by Buli Venkanna was not inclined to rely on the said document holding that it was not acted upon and on the other hand, the revocation deed, dated 14.3.1988 was held to be valid and binding on the plaintiffs. Further since the notarized copy of the Will, dated 16.3.1988 was only filed by the defendants and the Will was not proved by examining any witnesses, the trial Court held that the Will is not true and binding on the plaintiffs. Holding that the plaintiffs failed to establish title to the plaint schedule property the trial Court dismissed the suit. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred A.S.No.44 of 2007 before the I Additional District Judge, East Godavari District at Rajahmundry. After advancing the arguments by the plaintiff’s advocate, respondents 3 and 4 (defendants 3 and 4) in the appeal did not address the arguments, but on 12.8.2009 the respondent No.4 addressed the arguments, but however, the advocate for respondent No.3 (petitioner herein) sought time and on payment of costs, the matter was adjourned to 21.8.2009, on which date, the third defendant-petitioner herein filed the impugned I.A. contending that the father of the second defendant executed Ex.B.3 Will in favour of second defendant, and that he was informed by his counsel to know the address particulars of the attestors of Ex.B.3 document, and though he made efforts, he could not secure the address during the trial, but now he came to know whereabouts of the attestors of Ex.B.3 and therefore, it is necessary to examine the said attestor by taking necessary summons to the witnesses. By the impugned order, the lower appellate Court dismissed the I.A. holding that when the petitioner was impleaded in the suit as third defendant as per orders, dated 31.1.2000 in I.A.No.1369 of 1999, the original Will was not filed before the trial Court, only the attested Xerox copy was filed and marked as Ex.B.3. The petitioner filed his chief-examination affidavit on 23.11.2001 and tendered cross-examination on 16.12.2004, and that he was recalled on 15.6.2005 to file Ex.B.6 agreement of sale, but there was no whisper in the entire chief-examination of D.W.1 about the execution of the Will and the particulars of the attestors, and on the other hand, in the cross-examination it is elicited that he has no personal knowledge about the execution of the said Will and the rights of the executant of the said Will over the property, and in fact, in the entire evidence of second defendant as D.W.2, who is the propounder of the Will, there is no whisper about the execution of the Will or the attestors and other particulars. In that view of the matter, the lower Court rightly dismissed the impugned I.A. holding that the three limbs of Order 41 Rule 27 C.P.C. are not attracted in the case. The impugned order so passed by the lower appellate Court does not suffer from any illegality or infirmity warranting interference by this Court in exercise of jurisdiction under Article 227 of Constitution of India. The revision fails and is accordingly dismissed, but without costs. _______________ A. GOPAL REDDY, J. FEBRUARY 11, 2010 Tsr.