OS NO. 2/2019 1 Civil Judge (Senior Division)
,Repalle
APGU190000022019
IN THE COURT OF THE CIVIL JUDGE(SENIOR DIVISION), REPALLE.
PRESENT:- Smt S.P.D. Vennela,
Civil Judge (Senior Division), Repalle.
Tuesday, this the 21st day of April, 2026.
Original Suit NO. 2/2019
Between Kothamasu Nagamalleswara Rao, S/o Rama Murthy, aged about 65 years, Hindu, Business, R/o Plot No. 110/A, 134/A/1, Plot No. 201, Abhi residency, Gokul plots, Venkata Ramana Colony, K.G.H.B. 9th phase, Hyderabad-500085.
...Plaintiff
And
1. Koduri Bebi Sarojini, W/o late Surya Prakasarao, aged about 70 years, Hindu, Housewife, R/o D.NO. 1-37, Oleru, Bhattiprolu Mandal.
2. Koduru Lakshmaiah, S/o late late Surya Prakasarao, aged about 50 years, Hindu, Housewife, R/o D.NO. 1-37, Oleru, Bhattiprolu Mandal.
....... Defendant.
This Suit has come before this court on 30.3.2026 for hearing in the presence of Sri. K. Rama Swamy, Advocate for the plaintiffs; and of Sri V. Chandrasekhara Rao, Advocate for defendants; upon hearing the leaned counsels appearing on behalf of the both sides; upon perusing record; having been stood over for consideration till this day, this Court delivers the following:-
JUDGMENT
1.This suit was filed by the plaintiff to declare the plaintiff as the absolute owner of the plaint schedule property and to put him in possession of the plaint schedule property after dispossessing the defendants and for costs of the suit.
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,Repalle
2.The brief averments of the plaint are as follows:-
The plaint schedule property originally belongs to the father of the plaintiff. The father of the plaintiff purchased the plaint schedule property from
Korrapati Seetharamaiah on 20.7.1969, since then he was in possession and enjoyment of the same till he died on 29.3.1979 and he constructed a house with tatched roof with brick walls in the year 1972 and his wife also died on 4.1.1980 and during the life time of Rama Murthy he executed a Will on 15.12.1978 in favour of the plaintiff bequeathing the plaint schedule property to the plaintiff and after his death the plaintiff got absolute rights over the plaint schedule property and he is in possession and enjoyment of the same and in the month of January, 1981 the plaintiff left Repalle keeping the schedule property vacant and then in the month of October, 1983 he shifted to
Hyderabad from Repalle and later he shifted to Hanuman Junction in the year 1991 and again he shifted to Hyderabad in the year 2016 and as the plaintiff left the schedule property vacant, in the year 2014 the defendants occupied the schedule lproperty and residing in it without any permission from the plaintiff and the defendants have no right or title over the plaint schedule property and in the year 2016 the plaintiff demanded the defendants to vacate the plaint schedule property and put him in possession of the same and the defendants used to postpone and continuing in possession of the plaint schedule property and the defendants have no right in the plaint schedule property and hence this suit.
3. Defendants filed written statement. The brief averments of the written statement are as follows:-
a) Defendants filed written statement denying the averments of the plaint and further contends that the husband of 1st defendant and father of 2nd defendant Surya Prakasa Rao purchased the plaint schedule site and brick walled thatched house therein for a valid consideration from the plaintiff's
OS NO. 2/2019 3 Civil Judge (Senior Division)
,Repalle father Kothamasu Rama Murthy about 40 years back in the year 1978 under a contract of sale and the said contract of sale was executed in the presence of one Vemulapalli Nageswara Rao of Oleru village and Koduri Srinivasa Rao of Kanneganti vari palem, scribed by one Korrapati Venkata Subba Rao of
Oleru village and after receiving total consideration, the said Kothamasu Rama
Murthy delivered possession of plaint schedule site and brick walled thatched house therein to the vendee Koduri SuryaPrakasa Rao and the said sale transaction took place in the presence of plaintiff and some of the family members of said Rama Murthy. Since the date of purchase said Surya
Prakasa Rao has been in possession and enjoyment of plaint schedule property along with his family members i.e., defendants herein as absolute owner till his demise as intestate in the year 1999 and the plaint schedule property devolved upon the defendants by way of succession and they have been in peaceful possession and enjoyment of the same till date with absolute rights and the grama panchayat levied house tax in the name of 2nd defendant under assessment No.38 and allotted Door No.1-37.
b) The defendants got electricity service connection for the plaint schedule house in the name of 2nd defendant and utilizing the same for their residential purpose and paying consumption charges and the legal heirs of said Kothamasu Rama Murthy well aware about the sale transaction of plaint schedule property by him to Koduri Surya Prakasa Rao, either the plaintiff or other legal heirs of said Kothamasu Rama Murthy never questioned the said sale transaction and never interfered with the peaceful possession and enjoyment of said Koduri SuryaPrakasa Rao or defendants and the defendants perfected their rights and title in the plaint schedule property by way of adverse possession and after the sale of the plaint schedule property within one or two years said Rama Murthy and his wife died and thereafter no legal heirs of said Kothamasu Rama Murthy reside in the Oleru village, all of
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,Repalle them left the village long back and settled elsewhere at their convenience and never claimed any rights in the plaint schedule property, so the suit claim is specifically barred by limitation.
c) The brick walled thatched house in the plaint schedule site was fully gutted in the fire accident took place on 29-11-2007 and all the household articles, other documents of defendants and their family members including the contract of sale executed by Kothamasu Rama Murthy in favour of Koduri
Surya Prakasa Rao were burned, and thereafter the defendants constructed a
R.C.C building in an extent about 800 sq. feet and toilets in an extent of about 80 sq. feet in plaint schedule site and have been residing in the same and the gram panchayat levied house tax to the said R.C.C building in the name of 2nd defendant under assessment No.955 and Door No.1-37 and he has been paying the same and after burning of the old service electricity meter the same was replaced with new one and paying charges and the plaintiff taking advantage of that the sale transaction between his father Kothamasu Rama
Murthy and 2nd defendant's father Koduri Surya Prakasa Rao was not registered and came to know the non availability of contract of sale executed by his father in their favour, filed this suit to get wrongful gain and the survey number mentioned in the plaint schedule is not correct and the plaintiff did not mention full details of plaint schedule property for the best reasons known to him and hence prayed to dismiss the suit with costs.
4. Basing on the pleadings of the both parties the learned predecessor of this court framed the following issues for trial.
1.Whether the plaintiff is entitled for declaration as absolute owner of the plaint schedule property and also for recovery of possession of the plaint schedule property ?
2. Whether the father of the plaintiff namely Ram Murthy purchased the
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,Repalle property in his name and executed a Will dated 15.12.1970 in favour of the plaintiff in respect of the plaint schedule property?
3.Whether the defendant has constructed a RCC building and absolute owner of the property?
4. Whether the suit is not maintainable under law ?
5. Whether the suit claim is barred by limitation ?
6. To what relief ?
5.During the course of trial on behalf of the plaintiff Pw.s 1 to 3 were examined and got marked Exs A1 to A4. On behalf of the defendants, DWs1 to 3 were examined and got marked Exs. B1 to B7.
6. Heard the arguments of learned counsels appearing for the plaintiff and the defendants. Perused the record .
7. Issue Nos. 1,2,4 :-
The plaintiff filed this suit for declaration of his right and title over the plaint schedule property and for recovery of the possession of the plaint schedule property from the defendants. As per Section 101 of Indian Evidence
Act initially the burden lies on the plaintiff to establish his case that he is the absolute owner of the plaint schedule property as per Ex. A1 Will. To establish the case of the plaintiff, the plaintiff himself examined as PW1 and got marked
Exs. A1 to A4. On behalf of the plaintiff one A. Siva Sankara Rao, third party to the suit proceedings is examined as PW2. One G. Naga Manjula third party to the suit proceedings is examined as PW3.
8.PW1 deposed evidence during his chief examination in respect of the pleadings mentioned in the plaint. Pw.1 deposed evidence during his cross examination that “there is a RCC building constructed and the said construction was not made by him and he do not know when the said R.C.C
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,Repalle construction was raised and he do not know who raised it and he left the Oleru village in 1981 and he visited Oleru village and observed in the year 2016 and he did not enquire about the disappearance of brick walled thatched house in the suit schedule site and he asked the defendants why are they staying there and the defendants stated that they will vacate and they did not vacate and after he left the village in the year 1981 he did not enquire about their house and he did not enquire that how long the defendants are residing in the suit schedule property and his father had 3 sons and 4 daughters and his father predeceased to his mother and his father's sibling Tiruveedhula Venkata
Rathnamma's husband died during her childhood and she was in protection of her father and the said Venkata Rathnamma also died after the death of her mother and after he shifted to Hyderabad, said Venkata Rathnamma was in protection of her maternal uncle Bolisetti Venkata Sivarama Krishnaiah and she died at him and his father had no other properties except suit schedule property and on the date of death of his father, marriages of him and his brothers were not performed and he and his brothers were staying at their parents till their death and his father performed marriages of his three daughters only during his lifetime and he got performed the marriage of 4th daughter and her marriage was got performed in the year 1982”.
9.PW1 further deposed during his cross examination that his marriage was performed in the year 1983 and at that time he was residing in Hyderabad and during his marriage also he did not go to his house in Oleru village and he did not file any written proofs in court to show that he has title, possession and enjoyment and he do not know that the brick walled house was completely gutted in a fire accident happened in 2007 and he do not know that the defendants were residing in it till then, neither his villagers nor neighbors informed to him about the fact that his house was gutted in the fire accident and he do not know that Fire Department authorities and Tahasildar,
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,Repalle
Bhattiprolu issued certificates to the defendants confirming the said fire accident and those are not belonged to his house and he do not know about the original document of Ex.A1 and as the said original document is not found and he obtained certified copy in S.R.O and filed the same and while the scribing Ex.A2 Will the scribe and attesters were present and he was also present and the said Will was scribed in the house of Nandam Jagannadha
Rao, who was a pleader and the said Nandam Jagannadham notarized the same, as stamps were not available said Will was scribed on white paper and he did not file death certificates of scribe, attesters of Will and his brother
Kothamasu Satyanarayana died at the time of prevailing recent carona virus and other brother Venkata Purnachandra Rao is alive now and at the time of execution of Will by his father no family member of their family was present except him”.
10.PW1 further deposed that “the other family members have no knowledge about the existence of Will except him and after execution of Will the same was entrusted to him and after advising to him to discharge the responsibilities and handed over the same to him, except him no other family members claim any rights in the suit schedule property and they never asked the defendants about the suit schedule property and his brothers and sisters have no knowledge about filing of this suit and he do not know who constructed the R.C.C building in the suit schedule site and he did not complain against the occupation of suit schedule property to any government authority or police and he did not give any prior notice to the defendants either himself or through his advocate and there is electricity service meter to his house and same is in his name and he do not remember that up to which year he paid electricity consumption charges to his house and the electricity department also did not give any demand notice to him demanding to pay said bills and he do not know what happened to said electricity connection and he
OS NO. 2/2019 8 Civil Judge (Senior Division)
,Repalle did not enquire about the same and the grama panchayat levied house tax during the term of his father and he paid house tax till the year 1981 when he was in Oleru village and since 1982 he did not pay said house tax and even grama panchayat authorities also did not give any house tax demand notices to him and he do not know that the defendants have been paying said electricity charges and house tax to the suit schedule property and he do not know that grama panchayat and concerned departments issuing said demand notices to the defendants and he do not remember electricity service connection number of his house and he do not remember that my house number is 1-37. ”
11.PW2 filed chief affidavit by supporting the case of the plaintiff that the plaint schedule property originally belonged to the father of the plaintiff and he purchased it in the year 1969, since then he was in possession and enjoyment of the same till he died intestate in the year 1979 and he constructed a thatched house on brick walls in the year 1972 and his wife died in the year 1980, in the year 1978, Rama Murthy executed a 'Will' in favour of the plaintiff bequeathing the plaint schedule property to the plaintiff and after the death of his father the plaintiff became the owner of the schedule property and he lived in it along with his family till the year 1981 and in the year 1981 the plaintiff left the plaint schedule property vacant and resided in Repalle till the year 1983 and afterwards, he left Repalle also and shifted to Hyderabad and after he left
Oleru village, his house was dilapidated and as the site is vacant, the defendants occupied the schedule site in the year 2014 without taking permission from the plaintiff and the defendants constructed a house unauthorizedly in the schedule site and is residing in it along with his family and he came to know that since the year 2014, the plaintiff made several demands to the defendants for vacating the plaint schedule property.
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,Repalle
12.PW2 deposed evidence during his cross examination that “ the plaintiff is his cousin and the plaintiff is the husband of his neice and now he is residing in Hyderabad and about 45 years back the plaintiff left his native village Oleru village and he is residing in different places and he has no other relatives in the said Oleru village and after leaving the village by the plaintiff he did not visit the said village and in the year 2014 plaintiff came to him and he and the plaintiff went to the said Oleru village to request the occupants of the land to vacate the said land and the defendants are the occupants of the said land and he has no prior acquaintance with the defendants and the plaint schedule property is belongs to the plaintiff, prior to the year 2014 the plaintiff did not request him to visit the plaint schedule property and the plaintiff acquired the plaint schedule property through a Will executed by his father and the plaintiff informed to him about the said Will and the plaintiff is having three sisters and two brothers and the the siblings of the plaintiff did not demand the defendants to vacate the premises and the siblings of the plaintiff has given authority and no documents are executed by the siblings of the plaintiff by giving authority to look after the plaint schedule property and he came to know about the suit in the year 2018 and the plaintiff informed to him about the contents of his chief affidavit.”
13.PW3 filed chief affidavit by supporting the case of the plaintiff stating that she came to know that K. Rama Murthy of Oleru Village executed a Will' in favour of his son Nagamalleswara Rao with respect to his house property situated in Oleru Village Bhattiprolu Mandal and which was scribed by
Kamarajugadda Satyanarayana and attested by Paruchuri Dasaradha
Ramaiah and Devabhakthini Narasimha Rao in the year 1979 and among them she knows Paruchuri Dasaradha Ramaiah and she is acquainted with his signature and he used to cultivate her lands and do Paddy business and in that context, he borrowed 25,000/- from her for his agricultural expenses and
OS NO. 2/2019 10 Civil Judge (Senior Division)
,Repalle for paddy business in the year 2019 and executed a promissory note in her favour, so she is acquainted with his signature and the signature of 1st attestor on the Will is that of Paruchuri Dasaradha Ramaiah and she came to know that he is no more.
14.PW3 deposed evidence during her cross examination that “ she is residing in Kuchinapudi village for about 10 years and thereafter she purchased a house in Gullapalli village and shifted to Gullalpalli and she is deposing the evidence at request of one Sankara Rao and the said Sankara
Rao himself approached her and she has no acquaintance with the said
Sankara Rao and the said Sankara Rao came to her and requested her to depose evidence as she lend amount to Dasaradha Ramaiah and further informed to her that the plaintiff has acquired a land through a Will and the said Dasaradha Ramaiah was the resident of Oleru village and the said
Dasaradha Ramaiah is having wife and children and they are alive now and the said Dasaradha Ramaiah did paddy business in Gullapalli village and as such she knows him and she is not doing any money lending business and the said Dasaradha Ramaiah himself scribed the promissory note in her favour and thereafter he discharged her debt and the said Dasaradha Ramaiah has signed in Telugu on the above said promissory note and she has seen while signing the signature by the said Dasaradha Ramaiah on the promissory note and the said promissory note was with her and after discharging her debt she return the said promissory note to the said Dasaradha Ramaiah and she do not know whether the said Dasaradha Ramaiah was died in the year 1998 and she do not know personally about the Will referred in her chief affidavit and the above said Sankara Rao informed to her about the said Will.”
15.On behalf of the defendants, 2nd defendant is examined as DW1 and got marked Exs. B1 to B7. DW1 filed chief affidavit by reiterating the contents of
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,Repalle the written statement filed by him. DW1 deposed evidence during his cross examination that “ he do not know in which year his father purchased the plaint schedule property and he was 13 years old by the date his father purchased the plaint schedule property and he do not know the name of grand father of the plaintiff and he do not know whether the father of the plaintiff signatory or not and he do not know about the sale transaction in the name of his father and his father informed about the same to him and he do not know the names of father of Vemulapalli Nageswara Rao and Koduari Srinivasa Rao and his father informed to him that he obtained contract of sale on a Non Judicial
Stamp paper and his father did not informed to him that where said Non
Judicial Stamp Paper as purchased and he can not say in how many papers the said contract of sale was drafted and he can not say in how many papers the said Vemulapalli Nageswara Rao and Koduari Srinivasa Rao have signed in the said contract of sale and his father purchased the plaint schedule property for sale consideration of Rs.9,000/- and his father paid total sale consideration at a time and he can not say in which year the plaint schedule property was delivered to his father and about 40 years back the property was delivered to his father since the date of purchase till date he has been paying house tax, water tax and electricity charges of the plaint schedule property in the name of his father and for 20 years he paid house tax, water tax and electricity charges of the plaint schedule property in the name of his father and after death of his father he has been paying house tax, water tax and electricity charges of the plaint schedule property in the name of his mother till date and about 25 years back he got constructed a thatched house in the plaint schedule property and the said house was burned in a fire accident and he can not say how much amount he spent for construction of the above said thatched house and after 14 years of fire accident he got constructed RCC building in the plaint schedule property.”
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,Repalle
16. DW1 further deposed that “ the fire Officers obtained the signatures of his wife and they gave list of articles to the fire Officer which were burned in the said fire accident and himself and his wife together went to Tahsildar Office and gave report about the fire accident and they gave list of articles to the Tahsildar which were burned in the said fire accident and he sustained loss of Rs.2,00,000/- to
Rs.3,00,000/- in the said fire accident but he cannot say whether he mentioned in the report given to the fire Officer and Tahsildar that he sustained loss of
Rs.2,00,000/- to Rs.3,00,000/- in the said fire accident and he is having land to an extent of Ac.0.70 cents and a house and the registered documents belongs to said properties are also burned in the above said fire accident and the Ex.B1 did not shows that the contract of sale was also burned in the fire accident and he forgot to mention that the said contract of sale also burned in the fire accident and the Ex.B3 does not contains the date and house number and he cannot say electricity service number and in Exs.B5 and B6 the name was mentioned as Koduru Kaxmaiah and he can not say the dates of Exs.B5 and B6.”
17.On behalf of the defendants, K.Srinivasa Rao, attestor of the sale agreement allegedly executed by the father of the plaintiff in favour of the father of the DW1 is examined as DW2. DW2 filed chief affidavit stating that the father of the plaintiff sold the plaint schedule property to the father of the 2nd defendant under agreement of sale and delivered the possession of the same and at that time himself and one Vemulapalli Nageswara Rao of Oleru village were present and they signed as attestors and the scribe of the agreement K. Venkata Subba Rao is no more and about 15 years back the thatched house was gutted in the fire accident and thereafter the defendants raised RCC building in the said site and they have been in possession and enjoyment of the same.
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18.DW2 deposed evidence during his cross examination that “his grand father and grand father of 1st defendant are brothers and about 40 years back the husband of 1st defendant purchased the plaint schedule property, he can not say the date, month and year of sale transaction and the said sale contract was executed at the house of Rama Murthy (father of PW1) and at that time wife and children of Rama Murthy were present and he do not remember whether in any persons are present at that time and Karanam of Oleru was drafted the said contract of sale but he do not know his name and he do not remember in which and how many papers the said contact of sale was drafted and he has read over the said contract of sale and to his remembrance it was mentioned in the said contract of sale that the said Rama Murthy sold the property to the husband of 1st defendant and delivered the possession to him and he signed as attestor in one promissory note about 30 years back and he did not sign as attestor in any other contract of sale documents and Vadlamudi
Chandra Sekhara Rao lend an amount of Rs.5,000/- at 12% interest to one
Rama Mohan and the said Rama Mohan executed a promissory note in which he signed as a attestor and he do not remember the name of the scribe of the said promissory note.”
19.DW2 further deposed that “the husband of 1st defendant informed to him that he paid advance sale consideration of Rs.5.00/- to his vendor and he agreed to purchase the property for sale consideration of Rs.9000/- and he paid Rs.9000/- on the date of contract of sale and the 1st defendant and her husband resided in the said hut for about 7 or 8 years till it was burned and on the next day of fire accident he visited the hut but he do not know what are the burned in the said fire accident and after one year of the fire accident a building was constructed in the same site and he do not know what was the amount spent for construction of the building and he do not know the plaintiff
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,Repalle and he know the father of the plaintiff and he do not know whether father of plaintiff executed any Will in favour of the plaintiff ”.
20.One Vemulapalli Venkateswara Rao examined as DW3 and he filed his chief affidavit supporting the case of the defendants that since the age of his discretion there is brick walled thatched house in the plaint schedule site and the 1st defendant and her husband Surya Prakasa Rao residing there in and about 15 years back the said thatached house was burnt in a fire accident and later the defendants constructed a RCC building in the said site except the defendants and their family members no others have been in possession and enjoyment in the plaint schedule property.
21.DW3 deposed evidence during his cross examination that “ One
Ramamurthy filed this suit against one Suryaprakasa Rao (husband of D1) and he has no relationship with the said Suryaprakasa Rao, he and the said
Surya Prakasa Rao belongs to same community and he has no personal knowledge that originally plaint schedule property belongs to the Vysya community people and his chief affidavit was prepared on in the instructions of 2nd defendant and he got discretion at the age of 11 or 12 years and he do not know from which year the defendants were residing in the said thatched house and he do not know when said Suryaprakasa Rao was died and he do not know the year in which the said thatched house was burnt and he was present at the time of burnt of the said thatched house and he cannot say what are the articles were burnt in the said fire accident and he did not ask the defendants what are the articles were burnt in the said fire accident and he do not know what was the action taken by the defendants in respect of the said fire accident and one Ramamurthy was resided in the said thatched house prior to the occupation of defendants and he do not know who are the family members of said Ramamurthy and he cannot say from which year to which year the said
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Ramamurthy and his family members resided in the said thatched house and he do not know for what consideration the said Suryaprakasa Rao purchased the plaint schedule property and he do not know the documents in respect of the said sale transaction.”
22.Now it has to determine whether the plaintiff able to establish his case.
Admitted facts are that originally the plaint schedule property belongs to the father of the plaintiff. The contention of the plaintiff is that his father executed a
Will on 15.12.1978 in favour of the plaintiff bequeathing the plaint schedule property to the plaintiff and after his death he got the plaint schedule property but the defendants occupied the same and even after repeated demands, defendants did not vacate the plaint schedule property and hence filed this suit. When the plaintiff is claiming his right and title over the plaint schedule property basing on a Will he has to establish the execution of the Will. Section 63 of Indian Succession Act deals with Wills . For the convenience here with reproducing Section 63 of Indian succession Act.
63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1*[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the
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,Repalle direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
23.Section 68 of Indian Evidence Act deals with the proof of the execution of the Wills. For the convenience herewith reproducing Section 68 of Indian
Evidence Act.
68. Proof of execution of document required by law to be attested.––If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
24.In view of the above provisons to establish the execution of Ex.A1 Will the plaintiff has to examine any one of the attestor for the proof of execution of the Will by the father of the plaintiff in favour of the plaintiff. Plaintiff deposed during his chief examination that the scribe and attestors of the Ex.A1 Will were died long back. But the plaintiff did not file death certificates of the scribe and the attestors of the Ex. A1 Will and did not produce any evidence to
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,Repalle establish that the scribe and the attestors of the Ex. A1 Will were died. Further,
Section 69 of Indian Evidence Act deals with procedure where no attesting witnesses of Will found. For the convenience here with reproducing Section 69 of Indian Evidence Act.
69. Proof where no attesting witness found.––If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
25.As per the above said Section if no attesting witnesses is found the persons who are acquainted with hand writing and signature of the attestors are available they have to be examine for the proof of the attestation of the Ex.
A1 Will. In this regard, the plaintiff got examined one G. Naga Manjula as
PW3. PW3 deposed evidence during her chief examination that one of the attestors of the Ex. A1 Will P. Dasaradha Ramaiah borrowed an amount of
Rs.5,000/- from her and he executed a promissory note in her favour in the year 2019 and he discharged the said amount and therefore she is acquainted with the signatures of the 1st attestor P. Dasaradha Ramaiah. But the plaintiff did not confronted the said Will to the PW3 before this court at the time of her further chief examination to identify the signature of the attestors of the Will namely Dasaradha Ramaiah. Furthermore, PW3 deposed evidence during her cross examination that the said Dasaradha Ramaiah is having wife and children and they are alive now. The wife and children of the attestors of the
Ex. A1 Will are proper persons to identify the signature of the attestors of the
Ex.A1 Will P. Dasaradha Ramaiah but the plaintiff did not choose to examine the wife and children of the said P. Dasaradha Ramaiah to identify his siganature as attestor on Ex.A1 Will. Therefore, it can be said that the plaintiff
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,Repalle failed to establish the execution of Ex. A1 Will by his father in his favour bequeathing the plaint schedule property.
26. Furthermore, the PW1 deposed evidence during his cross examination that he is having other two brothers and 4 sisters and his father predeceased his mother. But the plaintiff did not add his other siblings as parties in this suit.
Further, PW1 deposed that his other siblings have no objection to file this suit and they will not claim any right over the plaint schedule property but none of the siblings were examined by the plaintiff to establish his any of the contentions that even his father executed a Will bequeathing the plaint schedule property in his favour.
27.The contention of the defendants is that the husband of the 1st defendant and father of the 2nd defendant purchased the plaint schedule property under an agreement of sale from the father of the plaintiff and a old house existed by that date and it was gutted in fire accident on 29.11.2007 and thereafter the defendants got constructed RCC building in the same property and the said agreement was burnt in the said fire accident. As per the Section 102 of Indian Evidence Act when the plaintiff able to discharge his case then the burden shifts to the defendants to establish his plea. As discussed above the plaintiff failed to establish the execution of Ex.A1 Will in his favour through which the plaintiff is claiming his right and title over the plaint schedule property.
In view of the above discussion it can be said that the plaintiff failed to establish the execution of Ex. A1 Will by his father bequeathing the plaint schedule property in his favour and therefore the plaintiff is not entitled for the relief of declaration and recovery of possession as prayed for . Accordingly, all the above issues are answered.
OS NO. 2/2019 19 Civil Judge (Senior Division)
,Repalle
28. Issue No.3:-
The evidence of DW1 shows that the case of the defendant is more probable than the case of the plaintiff. But the defendant did not file any counter claim to decide his right and title over the plaint schedule property.
Therefore the issue No. 3 is need not be answered.
29. Issue No.5:
The plaintiff filed this suit for declaration and for recovery of possession of the plaint schedule property. When a suit filed seeking relief of declaration of right and for recovery of possession the limitation period will be 12 years as per the article 65 of Limitation Act. In this case, the contention of the plaintiff is that in the year 2014 the defendant occupied the plaint schedule property and residing in it without any permission from the plaintiff and in the year 2016 the plaintiff demanded the defendants to vacate the plaint schedule property and put him in possession of the same. The plaintiff filed this suit on 12.11.2018, hence it can be said that the plaintiff filed this suit within the limitation period and the suit claim is not barred by limitation. Accordingly, issue No. 5 is answered.
30. ISSUE No . 6 :-
To what relief?
In view of discussions at issue No. 1, 2 and 4 this suit is liable to be dismsised.
In the result, this suit is dismissed without costs.
Part of the Judgment is typed to dictation by the Stenographer and remaining part of the Judgment is dictated to the Stenographer and transcribed by him corrected and pronounced by this court in Open Court on this the 21st day of April, 2026 .
Sd/- S.P.D Vennela
Civil Judge(Senior Division),Repalle.
OS NO. 2/2019 20 Civil Judge (Senior Division)
,Repalle
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For plaintiff: For defendants: PW.1 K. Nagamalleswara RaoDW.1 K. Lakshmaiah PW.2 A. Siva Sankara RaoDW.2 K. Srinivasa Rao PW.3 G.Naga ManjulaDW.3 V. Venkateswara Rao
DOCUMENTS MARKED
For plaintiffs: Ex.A1: Certified copy of the registered document vide doc.No. 1555/1969, S.R.O, Repalle
Ex.A2: Will executed by the father of the plaintiff in favour of the plaintiff.
Ex. A3: Death certificate of the mother of the plaintiff dated 6.6.2018
Ex.A4: Valuation certificate of the schedule property dated 29.1.2018.
For defendants: Ex.B1: Fire Certificate issued by Station Fire Officer, A.P. Fire Services, Repalle, dated 17-12-2007.
Ex.B2:Certificate issued by Tahasildar, Bhattiprollu Mandal, Guntur District in L.Dis.No.198/2008B, dated 24-06-2008.
Ex.B3: House tax receipt for the year ending with 31st March, 2013 in the name of 2nd defendant issued by Gram Panchayat, Oleru.
Ex.B4: Electricity consumption bill in my name in SC.No.476 issued by APSPDCL, dated 11-11-2008.
Ex.B5:Electricity consumption bill in my name in SC.No.476 issued by APSPDCL, dated 01-02-2002.
Ex.B6: Electricity consumption bill in my name in SC.No.476 issued by AP Transco, dated 31-01-2000.
Ex.B7: Certified copy of gift deed executed by Bethapudi Venkata Subba Rao in favour of Bethapudi Venkaka Ramana, dated 30-08-2007.
Sd/- S.P.D Vennela
CJ(SD), Repalle.