JUDGMENT :- This Court allowed SAMP No.2333 of 2008 granting leave to raise additional substantial questions of law and the said substantial questions of law are as hereunder: (a) Whether the family arrangement pleaded by the defendant prevails over Ex.A.1 and binding on all? (b) Whether the defendant, having pleaded that there is a family arrangement according to which plaintiffs and defendant have to take equal share, is entitled to 1 acre of land? (c) Whether the lower appellate Court is justified in holding that the plaintiff is entitled to only 0.42 cents in the absence of a pleading that the 2nd plaintiff did not discharge his share of debt? (d) Whether the intention of testator is vitiated by the subsequent family arrangement and without there being a registered document to that effect? (e) Whether the decree and judgment of the lower appellate Court is vitiated by non-consideration of material evidence, consideration of irrelevant evidence and by perverse reasoning? 2. The second appeal is filed against the judgment and decree made in A.S. No.75 of 1980 on the file of the Additional District Judge, Krishna, at Machilipatnam wherein the dismissal of the suit O.S. No.513 of 1976 on the file of the I Additional District Munsif at Machilipatnam, had been modified. In the second appeal the appellant/second plaintiff is no more likewise the respondent defendant is no more and the legal representatives are brought on record. This Court allowed the second appeal with costs setting aside the judgment and decree of the appellate Court to the extent indicated therein and it was also observed that the second plaintiff is entitled for a decree as prayed for in the plaint. Aggrieved by the same, the matter was carried in Civil Appeal No.5227 of 1998 to the Supreme Court and the Apex Court while allowing the appeal set aside the judgment of this Court and restored the same to its original file for fresh consideration in accordance with law. Subsequent thereto in view of the application, SAMP NO.2333 of 2008 referred to supra, being allowed the aforesaid substantial questions of law have been formulated. 3. Subsequent thereto in view of the application, SAMP NO.2333 of 2008 referred to supra, being allowed the aforesaid substantial questions of law have been formulated. 3. Sri T.S. Anand, learned Counsel representing the present appellants - legal representatives of the second plaintiff, after pointing out to the substantial questions of law would maintain that when the Will was believed and a finding was recorded, to rely upon the vague oral evidence relating to family arrangement and disposing of with certain directions by modifying the dismissal of suit cannot be sustained. Learned Counsel also would maintain that even if the findings recorded by the Courts below be carefully appreciated, the directions issued by the appellate Court cannot be sustained. Even otherwise when there is no acceptable evidence with regard to discharge or non-discharge of debts, the finding recorded by the appellate Court cannot be sustained. The Counsel also would maintain that the second appeal is preferred by the second plaintiff alone since the first plaintiff was satisfied with the decree made by the appellate Court allotting some land to him and hence in the facts and circumstances, non-impleading of the first plaintiff would be of no consequence since the second plaintiff is not claiming any relief as against the first plaintiff. Learned Counsel also had pointed out to the finding recorded by the Court of first instance and also the findings recorded by the appellate Court and would maintain that in the facts and circumstances of the case the second appeal to be allowed decreeing the suit as prayed for. The learned Counsel also placed reliance on certain decisions. 4. On the contrary, Sri. G. Krishnamurthy, learned Counsel representing the present legal representative of the respondent, had taken this Court through the findings recorded by the appellate Court and would maintain that these findings are predominantly findings of fact and no substantial question of law as such is involved. The Counsel also pointed out to the remand order made by the Apex Court and further would contend that even if the substantial questions of law, now formulated by this Court at the request of the Counsel for the appellants, if carefully examined, they are only questions of fact and hence no substantial questions of law as such are involved in the second appeal. The learned Counsel also would maintain that the first plaintiff alone was examined and the second plaintiff had not entered into the witness box at all and hence, such plaintiff cannot maintain the appeal especially in the absence of the first plaintiff. The Counsel made elaborate submissions about non-joinder of parties, the concept of family arrangement and the scope and ambit of Section 100 of the Code of Civil Procedure and further placed reliance on several decisions to substantiate his submissions. 5. For the purpose of convenience, the parties hereinafter would be referred to as plaintiffs and defendant as shown in O.S. No.513 of 1976 on the file of the I Additional District Munsif, Machilipatnam. The suit was filed by both the plaintiffs jointly ~nd severally as against the defendant to direct the defendant to deliver possession of the plaint schedule property jointly and severally to the plaintiffs and also future mesne profits till delivery of possession. The Court of first instance in the facts and circumstances of the case on appreciation of the evidence of P.Ws.1 to 3, D.Ws.1 to 3 and also Exs.A1 to A4 and Exs.B1 to B3 came to the conclusion that the reliefs prayed for by the plaintiffs cannot be granted and if the plaintiffs are so aggrieved the proper remedy may be to institute a suit for partition and accordingly dismissed the suit. 6. Aggrieved by the same, the matter was carried by way of appeal in A.S. No.75 of 1980 on the file of the Additional District Judge, Krishna at Machilipatnam, and the appellate Court after formulating the points for consideration at Para 7 and after recording the reasons in detail modified the judgment and decree of the Court of first instance and disposed of the Suit as hereunder: "1. The 1st defendant is entitled to Ac.1.00 of land out of the suit land. 2. The extent which is over and above Ac.l.00 the said land belong to the plaintiffs. 3. The plaintiffs shall apply to the trial Court to appoint a Commissioner to measure the suit land and if it is found that it is more than one acre, the plaintiffs are entitled to possession of the excess through process of Court. 4. The trial Court can determine which side Ac.l.00 out of suit land should be allotted to the defendant, after considering the convenience of both parties and 5. 4. The trial Court can determine which side Ac.l.00 out of suit land should be allotted to the defendant, after considering the convenience of both parties and 5. In view of the close relationship of the parties and in the circumstances of the case, I order that each party should bear their own costs throughout." 7. Aggrieved by the same, the second plaintiff alone had carried the matter by way of this second appeal, as already referred to supra the second appeal was allowed and the matter was carried to the Apex Court and the Apex Court made an order of remand as already specified above. 8. The averments made in the plaint are hereunder: "The plaintiffs and the defendant are sons of Ramayya. There was partition between the plaintiffs, the defendant and their father in 1964. Ramayya, the father of the parties was allotted the plaint schedule property and some other property with absolute rights in the said partition Ramayya sold Ac.0.45 cents of land in R.S. No.584/1 out of the property allotted to him in the oral partition under a sale deed dated 20.2.1975 and the vendee is in possession of the property. Ramayya executed a Will dated 25.10.1975 in a sound and disposing state of mind bequeathing his remaining property of Acs.2.42 cents in Survey No.582/1 of Vandlarnannadu Village to the plaintiffs. Ramayya died on 18.2.1976, and thereupon the plaintiffs became owners of the property. The defendant issued a notice to the plaintiffs, Ramayya and the alienee Jonnalagadda Veera Raghavamma alleging that Ramayya had only life interest in the property and that he has no right either to sell Ac.0.54 cents to Jonnalagadda Veera Raghavamma or bequeath the properties to the plaintiffs. The plaintiffs and Ramayya gave reply to the same. The defendant relied upon an unregistered partition lists dated 29.12.1964. This alleged partition lists is not valid and that in any event it is inoperative, illegal and unenforceable. Subsequent to the death of Ramayya the defendant trespassed into the suit schedule land which is Ac.l.25 cents in June, 1976 and commenced agricultural operations. The 1st plaintiff is an illiterate and afraid of the defendant. So he approached the elders of village. The elders could not settle the dispute due to adamant attitude of the defendant. Subsequent to the death of Ramayya the defendant trespassed into the suit schedule land which is Ac.l.25 cents in June, 1976 and commenced agricultural operations. The 1st plaintiff is an illiterate and afraid of the defendant. So he approached the elders of village. The elders could not settle the dispute due to adamant attitude of the defendant. The plaintiffs could not divide the property after the death of their father as the land was in possession of the tenant. Subsequently the defendant trespassed into the land. The exact extent of the land trespassed by the defendant is not known as he did not allow the measurements. Hence, a rough estimate is given. The suit is filed for declaration of title and for possession and profits." 9. The defendant field a written statement with the following averments: 'The partition of 1964 was reduced to writing and the partition lists were prepared as per the terms of partition. The plaintiffs and defendant were allotted Acs.2.50 cents each with a liability of discharging the family debt of Rs.1 0,000-00 equally. Ramayya, the father of the parties was allotted an extent of Acs.2.92 cents of land with a specific arrangement and understanding that himself and his wife should enjoy the property during their lifetime only and subsequent to their death, this Acs.2.92 cents should devolve upon the plaintiffs and defendant equally. Ambikamma the mother of the plaintiffs and defendant and wife of Ramayya died in or about 1974. Since then Ramayya lived with his daughter Jonnalagadda Veera Raghavamma till his death while enjoying the income on the land. During the said period Jonnalagadda Veera Raghavamma obtained sale-deed dated 20.2.1975 for Ac.0.50 cents by exercising fraud, undue influence and coercion. This sale deed does not survive Ramayya. Ramayya was aged about 80 years by 1975. He became sick and had no sound and disposing state of mind. The plaintiffs in collusion with their sister Jonnalagadda Veera Raghavamma played fraud upon Ramayya and obtained document styled as a Will in October, 1975. The said document is similarly vitiated by fraud, undue influence and coercion. The sale deed and the Will were brought into existence taking advantage of the fact that the partition deed was not operative for want of stamp and registration. This defendant believes that no stamp and registration are necessary for the said document. The said document is similarly vitiated by fraud, undue influence and coercion. The sale deed and the Will were brought into existence taking advantage of the fact that the partition deed was not operative for want of stamp and registration. This defendant believes that no stamp and registration are necessary for the said document. The sale deed and Will are fabricated with a view to lay a dishonest claim and they do not bind the defendant. The defendant issued a notice to the plaintiffs Ramayya and Jonnalagadda Veera Raghavamma in January, 1976, demanding cancellation of the documents. The defendant believes that the plaintiffs and their sister got issued reply notices with false allegations even on behalf of their father Ramayya even without his knowledge. By the date of death of Ramayya his land allotted to him was in possession of a tenant by name Vucha Purnaiah. The plaintiffs, Jonnalagadda Veera Raghavamma and defendant set up rival claims for the land. All these claims were to elders viz., Tota Venkataratnam, Kanuri Venkatramayya, Kolli Raghava Chandra Rao, Garikapati Pothuraju, Jupudi Ranga Rao, Kotham Ramayya, who are also present at the time of partition in 1964. They settled the dispute in the presence of the tenant Vucha Punnayya and directed the plaintiffs and the defendant to give effect to the sacred and solemn arrangement that took place in 1964 according to which the plaintiffs and defendant have to get equal rights in Acs.2.02 cents. Then the tenant delivered Ac.1.00 of land to the defendant in June, 1976 with the consent of the plaintiffs and Jonnalagadda Veera Raghavamma. The defendant put up a ridge as boundary and has been in possession and enjoyment of the same. The allegation that the plaintiffs do not know about the extent occupied by the defendant is false. The plaintiffs retracted from the above said arrangement at the instance of Penlleru Subbanna the Sarpanch of the village." 10. On the strength of the pleadings the following issues were framed by the Court of first instance: (1) Whether the plaintiff is entitled for declaration and possession prayed for? (2) Whether the Will dated 25.10.1975 is true and valid? (3) Whether the family arrangement pleaded by the defendant is true? (4) Whether the plaintiffs are entitled to any profits? (5) To what relief? The Court of first instance, as already aforesaid, dismissed the suit. 11. (2) Whether the Will dated 25.10.1975 is true and valid? (3) Whether the family arrangement pleaded by the defendant is true? (4) Whether the plaintiffs are entitled to any profits? (5) To what relief? The Court of first instance, as already aforesaid, dismissed the suit. 11. At Para 7 in A.S. No.75 of 1980 the appellate Court formulated the following points for consideration. (1) Whether the plaintiffs cannot file a suit for possession of the suit schedule land and whether they have to file a suit for general partition? (2) Whether the defendant can lead oral evidence with regard to the terms of partition when he admits that the terms of partition are reduced to writing? (3) Whether Ramayya got the property with absolute rights or limited rights in the partition of 1964? (4) Whether the Will set up by the plaintiff is true, valid and binding on the defendant? (5) Whether the family arrangement pleaded by 'the defendant is true, valid and binding on the plaintiffs? 12. The appellate Court recorded reasons from Paras 8 to 16 and ultimately modified the judgment and decree dismissing the suit by the Court of first instance with certain directions as already aforesaid. 13. The substantial questions of law on the strength of which submissions at length had been made, already had been referred to above. It is not in controversy that the second plaintiff was not examined. The first plaintiff was examined and the first plaintiff is not shown as party at all in the present second appeal. Relating to the non-examination of the second plaintiff an adverse inference has to be drawn reliance was placed on Vidhyadhar v. Manikrao, AIR 1999 SC 1441 = 1999 (2) ALD (SCSN) 17 and further reliance was placed on Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera, AIR 1999 SC 1341 = 1999 (2) ALD (SCSN) 19. 14. On the aspect of family arrangement reliance was placed on Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119 , Sikhari Lakshmaiah v. Sikhari Peddamallaiah, AIR 1979 AP 275 and Roshan Singh v. Zile Singh, AIR 1988 SC 881 . 15. The evidence of P.Ws.1 to 3 and D. Ws.1 to 3 is available on record. 14. On the aspect of family arrangement reliance was placed on Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119 , Sikhari Lakshmaiah v. Sikhari Peddamallaiah, AIR 1979 AP 275 and Roshan Singh v. Zile Singh, AIR 1988 SC 881 . 15. The evidence of P.Ws.1 to 3 and D. Ws.1 to 3 is available on record. EX.A1 is the Will executed by the plaintiffs father in favour of plaintiffs on 25.10.1975, EX.A2 is the copy of the registered notice issued by the defendant to plaintiff, EX.A3 is the reply registered notice to the defendant by the plaintiff, EX.A4 is the certified copy of the sale deed dated 20.2.1975 likewise EX.B1 is the office copy of the registered notice issued to the plaintiff by defendant, EX.B2 is the office copy of the registered reply notice to the plaintiff by the defendant and EX.B3 is the office copy of another reply registered notice. The Court of first instance on appreciation of evidence available on record came to the conclusion that inasmuch as acceptable evidence is not available, the reliefs as prayed for by the plaintiffs cannot be granted and the suit was dismissed, no doubt with an observation that the remedy, if any, is to file a suit for partition. The appellate Court recorded reasons in detail and modified the decree as already specified above. The appeal had been preferred by one of the plaintiffs and second plaintiff alone contending before this Court that since the first plaintiff was satisfied with the decree, the first plaintiff -had not chosen to prefer the second appeal but he alone had chosen to prefer the present second appeal. 16. In the plaint schedule separate schedules had not been shown and further even in the pleadings the plaintiffs had not claimed separate reliefs relating to separate extents. What had been prayed for is a declaration that the plaintiffs are the owners of the plaint schedule property jointly and severally as against the defendant and a further relief of delivery of possession of the plaint schedule property jointly and severally and further to grant mesne profits and for other reliefs. What had been prayed for is a declaration that the plaintiffs are the owners of the plaint schedule property jointly and severally as against the defendant and a further relief of delivery of possession of the plaint schedule property jointly and severally and further to grant mesne profits and for other reliefs. Relating to the fact that the Will EX.A1 though was held to be valid, findings had been recorded in the light of evidence of D.Ws.l to 3 that by virtue of family arrangement, an arrangement had been made and why lesser extent had been given to the second plaintiff also had been explained. It is, no doubt, true that the total extent of the property relating to which directions had been given by the appellate Court is not the subject-matter of the suit, but, however, relating to the portion of the said property declaration of title and recovery of possession had been prayed for by the two plaintiffs jointly and severally and one of the plaintiffs alone had chosen to challenge the modified decree made in A.S. No.75 of 1980 on the file of the Additional District Judge, Krishna at Machilipatnam. The appellate Court on the peculiar facts appears to have moulded the reliefs. 17. In the absence of the first plaintiff as a party, the second plaintiff carried the matter by way of second appeal, can an effective decree for declaration of title and recovery of possession be granted? Even otherwise the schedule also appears to be vague. Apart from this aspect of the matter, the finding recorded by the appellate Court, relating to family arrangement on appreciation of oral evidence available on record, predominantly is a finding of fact. No doubt, certain findings, positively, have been recorded in relation to EX.A1. But, however, inasmuch as the first plaintiff had not chosen to prefer any second appeal and since the second plaintiff had not chosen to add the first plaintiff as party, this Court is of the opinion that in the absence of such party no effective decree as such can be granted. 18. But, however, inasmuch as the first plaintiff had not chosen to prefer any second appeal and since the second plaintiff had not chosen to add the first plaintiff as party, this Court is of the opinion that in the absence of such party no effective decree as such can be granted. 18. On a careful analysis of the substantial questions of law which had been raised by the Counsel representing the present appellants and in the light of the elaborate findings recorded by the appellate Court and especially in the absence of the first plaintiff being made as party and in view of the fact that the second plaintiff had not chosen to enter the witness box, this Court is of the considered opinion that the second appeal is devoid of merit. 19. Accordingly, the second appeal shall stand dismissed. However, since the legal representatives are fighting the litigation, let the parties bear their own costs.