THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A. No.1487 of 2010 Date of Order: 18-03-2011 Between: Murali Gopala Krishna Murthy and others .Appellants and Murali Narmada Rao and others ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.1487 of 2010 Oral Judgment: This is the defendants’ Second Appeal against the judgment and decree of the I Additional District Judge, Machilipatnam, Krishna District in A.S.No.76 of 2006, dated 12-03-2010 partly allowing the appeal filed by the appellants against the judgment and decree of the Senior Civil Judge, Gudivada in O.S.No.27 of 1990, dated 23-03-2006. The respondents/plaintiffs filed the suit for declaration contending that they are the legal representatives of late Kanakamma and acquired the suit schedule properties on her death and for permanent injunction. It is not in dispute that the plaint schedule property, which is a vacant site admeasuring 1484 1/3 square yards with Assessment No.3604 of Bethavolu village, belongs to Kanakamma. Plaintiffs claim that they are the legal heirs of Kanakamma. Murari Thataiah was having two sons viz., M.Ananda Ramaiah and Samudraiah. The defendants 1 and 2 are the grand sons of Samudraiah and sons of Venkatappaiah. M.Ananada Ramaiah was having three sons viz., M.Thataiah (junior), M.Gopala Swamy and M.Veera Raghavaiah. Kanakamma through whom both the parties claim properties is the wife of M.Thataiah (Junior). Kanakamma and Thataiah had three sons viz., Ananda Ramaiah, Venkata Subbarao and Radha Krishna and a daughter by name Krishnavenamma. It is not in dispute that three sons of Kanakamma predeceased her and prior to the death of all the three sons her husband—Thataiah also died. Krishnavenamma also died in the year 1945 at the house of Kanakamma. Thus, Kanakamma was the sole heir of her husband—Thataiah, who was the son of Ananda Ramaiah. The properties of Ananda Ramaiah were not partitioned among his sons—Junior Thataiah, Gopala Swamy and Veera Raghavaiah. After the death of husband of Kanakamma—Thataiah (junior), his brothers—Gopala Swamy and Veera Raghavaiah also died about 50 years back. After the demise of three brothers, the properties of Ananda Ramaiah were partitioned among the children of Thataiah (Senior), children of Gopala Swamy and children of Veera Raghavaiah during their minority represented by their respective mothers. Ex.B2 is the partition deed evidencing the partition. In the said partition plaint schedule property fell to the share of sons of Thataiah (junior) and Kanakamma. As the sons of Kanakamma viz., Ananda Ramaiah, Venkata Subba Rao and Radha Krishna and daughter by name Krishnavenamma predeceased her, Kanakamma became absolute owner of the plaint schedule property. The said fact has not been disputed by either of the parties. The first plaintiff is the son of Veera Raghavaiah. The second plaintiff is the son of Gopala Swamy. The plaintiffs are the sons of brother of Thataiah (junior), who was the husband of Kanakamma. The defendants propounded Ex.B1—will said to have been executed by Kanakamma claiming the plaint schedule property. The trial court after analyzing the evidence on record held in the suit filed by the plaintiffs they have successfully demonstrated that they are the nearest legal heirs of Kanakamma under Hindu Succession Act, 1956. The signature of attestor—Leela Kotaiah in Ex.B1 does not belong to him and the expert opinion shows that the signatures in Ex.X1 do not tally with his signatures in Ex.B1 and the appellants/defendants failed to prove execution of Ex.B1—will and accordingly the property was devolved on Kanakamma. When the defendants alternatively pleaded adverse possession to the plaint schedule property but failed to establish the adverse possession, as Exs.B38, B39, B41, B42, B44, B45 and B46 relate to post suit years and the house tax demand notices stand in the name of Kanakamma but not in the name of the defendants. Since the plaintiffs are nearest legal heirs of Kanakamma, the suit is decreed in favour of the plaintiffs. On appeal being filed the lower Appellate Court after considering the house tax receipts under Exs.B27, B26, B25, B24 and demand notices under Exs.B34 to B46 held that the plaintiffs are not entitled to permanent injunction and accordingly partly allowed the appeal. Aggrieved by the same the present Second Appeal is filed. Heard the learned counsel for the appellants for admission. Learned counsel for the appellants contends that the appellants/defendants are also nearest legal heirs of Kanakamma; unless all the legal heirs are impleaded the respondents/plaintiffs are not entitled to the relief as prayed for. I do not agree with the contention of the learned counsel because the defendants have not taken such plea in the trial Court except claiming their rights under Ex.B2—partition list; therefore, it is not open for them to take such a plea across the Bar. Both the Courts below concurrently held that the plaintiffs are the nearest legal heirs of Kanakamma which fact has not been disputed by the defendants nor established that they are the nearest legal heirs entitled to succeed the suit schedule property in preference to the plaintiffs. The concurrent findings recorded by the Courts below do not give rise to any question of law, much less substantial question of law, to admit the Second Appeal and it is accordingly dismissed at the stage of admission. _________________ A.GOPAL REDDY, J. 18-03-2011 Murthy