THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.No.2411 of 2002 Date:18th November, 2009 Between: Parva Linga Reddy …Appellant and 1.The State P.S. Bhadrachalam Town, Bhadrachalam, Khammam District and others. …Respondents. *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.No.2411 of 2002 JUDGMENT: This Civil Miscellaneous Appeal is directed against the order dated 30.03.2002 passed in O.P.No.263 of 1997 on the file of the District Judge, Khammam, whereby and whereunder the learned District Judge dismissed the application filed by the petitioner under Section 276 of the Indian Succession Act r/w. Section 151 C.P.C. 2. The petitioner claims right over immovable properties of one Vedula Manikyamma based on the Will executed by her on 02.01.1977. The said Manikyamma was killed on 12.10.1989. One Purnachandra Reddy was prosecuted for killing Manikyamma. It appears the case against the said Purnachandra Reddy in Sessions Case No.140 of 1991 on the file of the Additional Sessions Judge, Khammam ended in acquittal on 26.10.1992. Certain properties came to be seized from the possession of Manikyamma. The said properties were exhibited in the Sessions Case as Mos. 1 to 11. The petitioner on coming to know of the acquittal of the accused and the confiscation of the material objects (Mos.1 to 11), approached the Additional Sessions Judge, Khammam, by filing Crl.M.P.No.271 of 1994 for return of the same. The said Crl.M.P. ended in dismissal for non-prosecution. He filed a fresh application being Crl.M.P.No.1613 of 1994 seeking the self same relief and the same ended in dismissal on 16.02.1995. The petitioner filed Criminal Appeal No.768 of 1995 before the High Court and the same was rejected with a direction to prefer a civil case for the said property, on 23.04.1996. Hence, the petitioner filed O.P.No.263 of 1997 on the file of the District Judge, Khammam for grant of letter of probate basing on the Will executed by Manikyamma on 02.01.1977. 1st respondent remained ex parte. 2nd respondent filed counter. Before the trial Court, the petitioner got himself examined as PW.1 besides examiing two more witnesses as PWs.2 and 3 and got marked Exs.A1 to A3. The learned District Judge dismissed the said O.P., by order dated 30.03.2002. The said order is assailed in this Civil Miscellaneous appeal. 3. Despite notice being served on the respondents 1 and 2, they did not choose to enter appearance either in person or through a counsel. 4. Heard learned counsel appearing for the appellant and perused the material brought on record. 5. Learned counsel appearing for the appellant submits that the trial Court has not at all considered the evidence of PWs.1 to 3 and thereby erred in dismissing the application filed by the appellant. 6. I have gone through the order impugned in the appeal. The learned District Judge, after referring the relevant portion of the judgment of the High Court in Criminal Appeal No.768 of 1995, proceeded to dismiss the petition. In the Criminal Appeal No.768 of 1995, it has been observed that the petitioner is entitled to get Mos.1 to 11 under the alleged Will and he can claim his right in a civil Court. Pursuant to the observation given by the High Court in the said Criminal Appeal, the petitioner filed O.P.No.263 of 1997 under Section 276 of the Indian Succession Act r/w.Sec.151 CPC for issuance of Probate of the Will dated 02.01.1977. The appellant examined himself as PW.1 besides examining two more witnesses as PWs.2 and 3. The learned District Judge, without discussing the aspect whether the Will propounded by the petitioner has been proved or not, proceeded to dismiss the O.P. basing on the observation made by the High Court in Criminal Appeal No.768 of 1995. The learned District Judge has not correctly understood the observation made by the High Court in Crl.Appeal No.768 of 1995. Therefore, I am of the view that this is a fit case to set aside the order impugned in the C.M.A. and to remand the matter back to the learned District Judge, Khammam, for fresh consideration. 7. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the order dated 30.03.2002 passed in O.P.No.263 of 1997 and the matter is remanded back to the learned District Judge, Khammam, for fresh consideration. The appellant/petitioner is at liberty to adduce further evidence, if any. No costs. ________________________ B.SESHASAYANA REDDY, J. Date:18th November, 2009. Cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.No.2411 of 2002 Date:18th November, 2009