THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1510 OF 2010 18.10.2011 Between: Duvvuri Srirama Murthy And others. …. Appellants AND Kakarla Koteswara Rao … Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1510 OF 2010 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) The unsuccessful plaintiffs in both the Courts below are the appellants. They are brothers. They filed the suit being O.S.No.89 of 1994 on the file of the Court of the Junior Civil Judge, Alamuru for declaration of title and possession of land admeasuring Acs.0.30 cents (out of Acs.1.06 cents) in R.S.No.75/2 situated at Jonnada Village of Alamuru Mandal in East Godavari District. The suit was dismissed on 17.04.2006. Their appeal being A.S.No.28 of 2006 was also dismissed by the Court of the Senior Civil Judge, Ramachandrapuram, confirming the trial Court decree. Hence, the second appeal. The case of the appellants is as follows. Yechuri Peda Sodemma, the grandmother of the plaintiffs, is the absolute owner of land in R.S.No.75/2 admeasuring Acs.1.06 cents. She executed a Will on 25.04.1982 bequeathing the said property to the plaintiffs. She died on 15.04.1991. After her death, the plaintiffs made enquiries and found that an extent of Acs.0.30 cents on the southern side of R.S.No.75/2 is in possession of the defendant, who is claiming title. Therefore, the suit. The sole defendant (respondent herein) opposed the suit. He contended that his grandfather Kakarla Seethanna purchased the land admeasuring Acs.0.30 cents under registered sale deed dated 10.09.1923; after his death, the suit property devolved on the defendant; and that he is paying the land revenue to treasury regularly. In view of the rival contentions, the trial Court framed three issues. The plaintiffs examined four witnesses and marked Exs.A.1 to A.15. The defendant examined three witnesses and marked Exs.B.1 to B.19. The trial Court, on considering the evidence, came to the conclusion that the defendant is the absolute owner of the plaint schedule property and that the plaintiffs failed to establish the right nor proved Ex.A.1, will. At the stage of appeal, the plaintiffs filed I.A.No.347 of 2009 under Order XLI Rule 27 of Code of Civil Procedure, 1908 (CPC) praying the first appellate Court to receive additional documents (proposed to be marked as Exs.A.16 and 17). The first appellate Court again considered the evidence and came to the conclusion that the Will is not proved and that the additional documents need not be allowed for arriving conclusion. The counsel for appellants/plaintiffs would contend that the plaintiffs’ grandmother got the property under a gift deed executed by her junior paternal uncle in 1914, which would establish the title of the testator who bequeathed the property in favour of plaintiffs. He would also contend that the Courts below were in error in holding that the Will is not proved. According to him, the scribe P.W.2 and attestor P.W.4 approved the Will and in the absence of any suspicious circumstances, the Courts below ought to have held that the Will is proved. The question of proof of Will is a question of fact. The propounder of the will has to prove that the testator executed the Will and that it was executed in the presence of attestor who saw the execution and attested the Will. In this case, on considering the evidence and also appreciating the probabilities, the Court below came to the conclusion that Ex.A.1, Will, is not proved. Being a finding of fact, the same does not warrant any interference. In a suit for declaration of title, the burden is on the plaintiffs and they failed to prove the title. The second appeal is misconceived and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 18.10.2011 pln